SHARMA, J. - (1.) THE eight appellants were placed on trial for dacoity and murder before the learned Additional Sessions Judge Khetri (Jhunjhunu) who convicted and sentenced all of them vide judgment dated August 11, 2000 as under- U/s. 148 IPC U/s. 342 IPc to undergo three years R. I. and fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S. I. U/s. 458 IPc to undergo ten years RI and fine of Rs. 5000/- and in default of payment of fine to further suffer two years SI. U/s. 396 IPc to suffer imprisonment for life, and fine of Rs. 5000 in default to further suffer two years S. I. U/s. 397 IPC U/s. 398 IPc to suffer seven years RI. to suffer seven years RI. All the sentences were ordered to run concurrently.
(2.) THE occurrence of dacoity and murder which was the subject matter of the charge against the appellants, is said to have taken place on November 6, 1996 around 8. 45 p. m. at the house of Satyaveer Mehrda (PW. 2) who submitted written report to the Police Station Khetri on the same day at 10- p. m. THE report was to the effect that around 8. 45 when the informant, Sunder, Subhash and Ram Singh were sitting in the outward room of their house and his grand father Sheodan was lying on a cot in the opposite room, suddenly Om Prakash along with six seven persons entered their house and threatened them to kill. On being protested by Sunder, one of the intruders inflicted knife blow on his stomach. When his grand-father raised hue and cry, Om Prakash shot him dead. All the intruders then commanded the family members to go inside and snatched away all ornaments wearing by his mother, maternal aunt and sister in law. THE intruders broke open the boxes and removed ornaments, clothes and other articles. After confining family members in the room and kitchen the intruders fled away. On the basis of the said report the police station Khetri registered a case under section 147, 148, 149, 458, 342, 396 IPC and 27 Arms Act and investigation commenced. The investigating officer inspected the site, sent the injured Sunder for medical examination, drew inquest report and got the autopsy on the dead body of Sheodan conducted. The statements of witnesses under section 161 Cr. P. C. got recorded. In the early hours of November 7, 1996 appellants Om Prakash, Vinod Kumar, Jahid, Tokhir, Mohd. Salim, Nazim son of Putan and Tasleem were arrested from the nearby place and ornaments, country made pistols and knife got recovered from their possession. The ornaments got identified by the informant and other family members. Appellant Nazim s/o Akhtar was arrested on November 17, 1996. Identification parade was conducted on December 18, 1996 and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Khetri. Charges under Sections 147, 148, 458, 307, 307/149, 396, 396/149, 397, 397/149, 398 and 398/149 were framed against all the appellants. Additional charge under Section 4/25 Arms Act was framed against Om Prakash, Mohd. Salim and Tokhir and under Section 4/25 Arms Act was framed against appellant Vinod. The appellants denied the charges and claimed trial. The prosecution examined as many as 26 witnesses in support of its case and got exhibited 26 documents. In their explanation under Section 313 Cr. P. C. the appellants claimed innocence. However, no evidence in defence was produced. Learned trial judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. In order to prove its case the prosecution examined seven eye witnesses viz. Satyaveer (PW. 2), Smt. Durga (PW. 3), Smt. Prem (PW. 4), Smt. Sona Devi (PW. 5), Subhash (PW. 6), Ram Singh (PW. 7) and Sunder (PW. 10) and also led evidence regarding recovery of stolen articles and identification of the appellants. The fact that dacoity took place in the house of Satyaveer (PW. 2) is not in dispute. It is also not in dispute that in order to commit the dacoity the dacoits had caused injuries to Sheodan and Sunder, out of whom Sheodan lost his life because of the gun shot injury received by him. What is now left to be considered is whether the evidence regarding identification of the appellants and recoveries is so reliable that conviction of the appellants can be sustained.
(3.) IT was contended by the learned counsel appearing for appellant Om Prakash that evidence adduced against him was tainted testimony and it was not probable that he would submit dacoity in his own village without taking the least precaution to conceal his identity. On behalf of other seven appellants it was urged that six were arrested on November 7, 1996 in the early hours near the place of incident and one was taken in custody on November 17, 1996 but their identification parade was held on December 6, 1996 and no explanation for this delay has been assigned. Therefore no reliance can be placed on such identification as there was ample opportunity with the witnesses to see the appellants. In regard to recoveries it was canvassed that in the FIR details of stolen ornaments or other articles were not given. List of stolen articles was handed over to police on November 8, 1996, i. e. after the arrest of seven appellants. As per the FIR and the statements of the eye witnesses the ornaments were snatched by the dacoits from the person of women but such allegations did not get corroboration from the medical evidence. Even in view of the statements of Sawai Singh (PW. 24) and Ramji Lal (PW. 5) the recovery and identification of articles looses the sanctity and no reliance can be placed on such evidence. Reliance is placed on Rang Bahadur vs. State of U. P. (1), Shatrughan vs. State of Orissa (2), Shambhu Dayal vs. Subhash Chand (3), State of A. P. vs. M. V. Ramannareddy (4), and Ram Shanker Singh vs. State of U. P. On behalf of the State it was urged that the dacoity was committed by the appellants around 8. 45 p. m. while informant Satyaveer and other family members were awakened. The appellants are dare devils and except. Om Prakash all others belong either to Delhi or Uttar Pradesh. It was Om Prakash who guided all others to accompany him to his village Khetri for committing dacoity. Om Prakash since long back started residing some where in Delhi and he did not care to conceal his identity as he wanted to show his power to the people of Khetri that is why he came armed with pistol along with other appellants to commit dacoity in the house of the informant while all the family members were awakened. Had the appellants any intention to conceal their identity they could have waited the fall of darkness and took advantage of it. It was further urged that on receiving the FIR the police forthwith surrounded the area and arrested the seven appellants from the nearby place only next morning with the looted ornaments and other articles. The appellants neither gave any explanation as to how they same in possession of those ornaments and articles not they claimed the same. It was next contended that the Investigating Officer categorically stated that all the appellants were kept with covered faces therefore the delay in identification parade is not fatal. Before dealing with the arguments advanced before us it will be appropriate to advert to the fact situation of the case which may be summarised thus- (i) Appellant Om Prakash being inhabitant of Khetri, was known to the informant and named in the FIR. (ii) Appellant Vinod Kumar was the resident of Jahangirpuri Delhi. Appellant Jahid resided at Bijnor, whereas Tokhir, Mohd. Saleem, Nazim son of Putan Khan, Tasleem and Najim son of Akhtar Khan resided at Muradabad (UP ). (iii) Tokhir was arrested on November 7, 1996 at 6. 00 a. m. and Camera article 2, Golden Galsari Article 14, and Silver Tagri Article 25, were recovered vide Ex. P. 57 from his possession. (iv) Mohammed Salim was arrested at 5. 30 a. m. on November 7, 1996 and as per Ex. P. 56 and Ex. P. 62 Silver Payjeb Article 23, one pair Gold ear-ring Article 18, Gold Neckless Article 13, Silver Kada Article 21, one Deshi Katta and one live cartridge were recovered from his possession. (v) Najim son of Akhtar was arrested on November 17, 1996 at 8. 30 a. m. from Muradabad. (vi) Jahid was arrested on November 7, 1996 at 8. 30 a. m. and as per Ex. P. 60 Watch Article 28, Golden madalia Article 16, Gold ring article 20 and Silver jhumki Article 22 were recovered from his possession. (vii) Taslim was arrested on November 7, 1996 at 8. 00 a. m. and vide Ex. P. 59 one pair of Silver Payjeb Article 23, and one pair of Golden ring Article 18 were recovered from his possession. (viii) Najim son of Putan was arrested on November 7, 1996 at 7. 15 a. m. and vide Ex. P. 58 and Ex. P. 18 Golden Tika article 15, Silver Chhad of children Article 21, silver chhad article 24 and Tape recorder were recovered from his possession. (ix) Vinod Kumar was arrested on November 7, 1996 at 6. 30 a. m. and vide Ex. P. 55 Golden Jhumki Article 119, Nose ring Article 17, Silver Tagri Article 26, Small Silver Tagri Article 27 and bag containing articles were recovered from his possession. (x) Om Prakash was arrested on November 7, 1996 at 5. 00 a. m. and vide Ex. P. 54, two Silver Kadiya, one pair Silver Nevari, Two Gold patla, Four Gold Kaddas were recovered from his possession. At the time of arrest one Deshi Katta was found tied with his belt containing live cartridge in its chamber and four live cartridge were found in the pocket of the Pant. Deshi Katta and cartridges got seized vide memo Ex. P. 63. (xi) As per Post Mortem Report Ex. P. 10 death of Sheodan was homicidal and he sustained following antemortem gun shot injuries - (a) One gun shot Entry wound - size 1" x 1/2 " x Penetrating. skull cavity on the left temporal region. (b) One gun shot Exit wound 2"x 1 1/2" x skull cavity deep Rt. side over right temporal region. (xii) As per injury report Ex. P. 11 Sunder sustained incised wound measuring 1/2" x 1/2" x 1/2" on the left side of abdomen. (xiii) The articles recovered from the possession of the appellants were got identified vide identification memo Ex. P. 6. (xiv) Identification parade of the appellants was held on December 6, 1996. ;