VYAS, J. - (1.) THIS appeal is directed against the judgment November 2, 2002, passed by the Additional District & Sessions Judge, Fast Track, Laxmangarh, Alwar, whereby he convicted and sentenced accused-appellants Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 396, IPC, to life imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo six months rigorous imprisonment; accused Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 397, IPC, to Rigorous Imprisonment for seven years and a fine of Rs. 500/- each, in default of payment of fine to further undergo three months Rigorous Imprisonment; accused Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 395, IPC, to life imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo six months' Rigorous Imprisonment; and accused Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay Singh under Sections 3/25 and 3/27 of the Arms Act to three years' Rigorous Imprisonment and a fine of Rs. 500/- each, in default of payment of fine to further undergo three months' Rigorous Imprisonment. All the sentences were directed to run concurrently.
(2.) IN nutshell, the prosecution story is that on December 17, 1996, one Santosh Kumar-complainant lodged a written report at Police Station, Khedli, wherein it was alleged that in the intervening night of 16th & 17. 12. 1996, he heard some noise on the roof of his house. On hearing the noise, he sent his peon Gopal Nepali to the roof. When Gopal Nepali opened the gate of the roof, the miscreants fired a shot on Gopal Nepali and entered into the house. He saw them in the light of the electricity. All the miscreants were young and dark complexioned and wearing Pant, Bushirt, Kurta and payjama. Miscreants closed complainant's wife and children in the bathroom. At that time, neighbourers also woke up. Some of the miscreants fired shot on Anita Yadav, Member of the Municipality, as a result of which she died on the spot. A Bank employee Yadav caught hold of one miscreant, but his companion gave beating to him and got the miscreant released from the clutches of the Bank employee. It was further stated in the complaint that when the miscreants were looting the house of the complainant, the entire incident was being witnessed by the police, but they ignored the incident and went away with the Jeep. After some time, the Police returned back. The culprits ran away in the presence of the Police. Chowkidar Gopal Nepali was taken to the hospital, where he was declared dead. On receipt of the aforesaid report, FIR No. 240/96 for the offence under Sections 395, 396, 397 and 398, IPC, was registered at Police Station, Kherli (Alwar) and investigation was taken up. During the course of investigation, the accused appellants were arrested. Raghuveer was arrested on arrested on December 19, 1996 and one Ambassador car was recovered at his instance. Raghuveer, Gurelal and Kallu were put to the indentification parade. On December 24, 1996, co-accused Ramkishan (now deceased) was arrested and on his arrest, case for offence under Section 120b, IPC, was also added. On December 24, 1996, accused appellant Kuniya was arrested and on his information one silver glass and Rs. 1000/- in cash were recovered from him. On the information and at the instance of accused Kallu, a 12 bore gun, one silver Katori, one ear tops and one ear ring were recovered on December 29, 1996. On the information and at the instance of accused Raghuveer, one Kondhani of silver, 2 silver glasses, one silver Katori, one silver spoon and one torch were recovered. On the information furnished by Ghurelal, one golden ring, one ear `jhala', one necklace, one Ilaychidani, one spoon and one Kondhani were seized on December 30, 1996. On January 1, 1997, accused appellants Rajpal, Samay Singh and Chunchu @ Bhagwan Singh were arrested. One 12 bore gun, one worship platter, 4 silver glasses, one Katori and Rs. 2000/- in each were recovered from Chunchu @ Bhagwan. On the information furnished by accused Samay Singh, one 32 bore revolver, two empty cartridges, 4 live cartridges, 5 glasses, one Katori, one spoon and two coin of silver along with Rs. 8900/- in cash and two notes of Nepali currency were recovered. On the information of appellant Rajpal one 32 bore Katta, one empty cartridge, 5 live cartdriges, two golden bangles (Kangan), 3 silver button, one Katori of silver, one silver glass and Rs. 1000/- in cash were recovered. On January 2, 1997, on the information of accused Kuniya, one Scooter was recovered. Accused appellant Talebar was arrested on January 19, 1997 and on his information Rs. 2000/- in cash and one key ring of Ambassador car were recovered. Appellants Samay Singh, Chunchu and Rajpal were also put to the indentification parade. After completing the investigation, the Police filed the challan for the offence under Sections 395, 396, 397, 120b and 412, IPC, and under Sections 3/25 and 3/27 of the Arms Act. The charges were framed against the accused appellants. The accused denied the charges and claimed to be tried. The prosecution produced as many as 34 witnesses and exhibited 80 documents (Ex. P 1 to Ex. P 80) in support of its case. The accused appellants were examined under Section 313, Cr. P. C. They denied the correctness of the statements appearing against them. The pleaded that they have been falsely implicated. The learned Trial Court, after hearing both the learned counsel for the parties and perusing the documents on record, convicted and sentenced the accused-appellants vide its judgment dated November 2, 2002, as indicated above.
(3.) BEING aggrieved by the aforesaid judgment of the Trial Court dated November 2, 2002, the accused appellants have preferred the instant appeal. Learned counsel for the appellants has contended that the findings of the Trial Court are against the facts and material on record. He further contended that the learned Trial Court has erred in law in not taking into consideration the proper appreciation of prosecution witnesses in its right perspective. Apart from that, there is serious discrepancy in the statements of the prosecution witnesses sofar as indentification parade of the accused appellants as well as list of recovery of articles are concerned. According to the learned counsel, this discrepancy goes to the root of the case, therefore, in this situation, the conviction of the accused appellants is bad and the accused appellants deserve to be acquitted by this Hon'ble Court. On the other hand, PW 13 Santosh Jagwayan, who is complainant, has deposed that on 16th/17. 12. 1996, at around 12. 30-1. 00 A. M. , a dacoity has taken place in his house. At that time, he, his wife, two daughters Sandhya and Preeti, son-Sachin and Chowkidar Gopal were present in the house. He further deposed that at the time of the incident, his daughter- Preeti was studying. On hearing the noise of breaking the doors, she awakened us and told that the sound of breaking doors is coming from roof. We also heard the noise. Then we awakened Chowkidar Gopal Nepali and he was sent to the roof-top. Meanwhile, the dacoits had broken the doors. The dacoits fired the gun shot at Gopal, which hit him on the genital part of his body. Thereafter, all the dacoits came down from the roof. They were 10-12 in number. At that time, the electricity of the entire was on. On hearing our noise, our neighbours woke up. The dacoits fired at our neighbour Mrs. Anita Yadav also. Due to the terror of fire, the people went inside their houses. He along with his son Sachin slipped into the house of Anita Yadav. His wife, two daughters and younger son Gopal remained in his house. Then, the dacoits broke open the almirah and they pushed his wife and two daughters in the bathroom. Gopal Nepali came down from the roof. He was taken to the Hospital. The dacoits took away his 10-12-15 silver glasses, 12-13 silver bowls (`katori'), a cordless telephone, one small set of diamond, golden earrings, Mangalsutra, about 25-30 coins of silver and the cash, amounting to Rupees fifty thousand, having 10-20 and hundred-rupee notes. He identified his items correctly. He also put his signatures on the fards Exs. P-22 to P-29 of identification proceedings. He also deposed that he identified the accused in Alwar Jail correctly. He claimed that he identified the accused persons twice. First time, he identified three dacoits and the second time, he identified five dacoits. It may be pointed out that while recording the statement of this witness, a note was put by the Trial Court that the articles were produced before the Court in unsealed condition. Further, one more note was put by the Trial Court that one sealed packet, on which seal was put, but was invisible and there was no chit of paper on the seal, was produced before the Court. The Court ordered to open the packet. The packet was containing two silver glasses (Articles 55 and 56) and one bowl of silver (Article 57 ). The witness also deposed that Articles 1 to 57 belonged to him. ;