K.D.SHARMA, J. - (1.) THESE two jail appeals filed by Uda and Gopiya convicts arise out of a single Judgment of the learned Additional Sessions Judge, Udaipur, where by Uda appellant was convicted Under Section 397. I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 100/ -, in default of fine to further suffer rigorous imprisonment for two months and Gopiya appellant was convicted Under Section 394, I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 100/ -, in default of payment of fine to suffer further rigorous imprisonment for two months.
(2.) THE prosecution case against the two appellants was that on 28th October, 1971, at about 10 or 11 a.m. Mitha Lal visited Madbu Lal's house in village Giloond. He took his food there with Madhu Lal and after a short stay left for village Jashma on a bicycle. When he started from the house of Madhu Lal, be had a small bag also with him. He reached village Joshma and from there proceeded to his village Guda in the evening. In the way when he reached near village Bhootar Khadi the paddle of his cycle gave way, so he got down from his bicycle and began to walk on foot, In the way he met Shanker and Mana co -accused, in this case, who were acquitted by the trial court. Both Shanker and Mana were coming from the side of village Giloond and were going towards village Dhamana. Shanker and Mana did not say anything to Mitha Lal. As Mitha Lal proceeded further and hardly covered a distance of ten or fifteen paces, he came across Uda and Gopiya appellants who had lathis in their hands. Uda on seeing Mitha Lal demanded a 'Biri' from him for smoking, Mitba Lal put his hand into his pocked jo take out a 'Biri'. Meanwhile Uda appellant all of a suddan gave him a lathi blow, which fell on his head As a result of this blow Mithlal fell down Gopiya appellant there -upon threw the bicycle on one side after taking the bag into his possession, which was hanging on its handle. Uda appellant then inflicted several blows with a lathi on the person of Mitha Lal and took out currency notes of 'he value of Rs. 300/ -, from his pocket, along with a one rupee note and two letters Exs. P 12 and P 13. While running a way with the booty, these two appellants robbed Mitha Lal of his shoes also, which he was wearing on his feet. After Uda and Gopiya had disappeared from there' Mitha Lal picked up his bicycle and started for going to village Giloond. Before he he could reach village G.loond, the villagers some how or the other heard a rumour that a Mahajan had been beaten and robbed of his belongings by some miscreants near Dindoli canal. On hearing these news Madhu Lal accompanied by some perrons came out of the village to know as to what had actually happened He saw Mitha Lal coming towards village Giloond having no shoes on his feet. Mitha Lal narrated the whole of the incident to Madhulal and others, who he took him to Kapasan, where he was medically examined by Dr. Gopal Krishna the very day at 11 p.m. The Medical Officer found as many as twelve injuries on Mitha Lal's body. Out of these injuries, injury No. 5 was suspected to be grievous. It was later on confirmed to be a grievous injury upon X ray examination at the General Hospital, Udaipur. A report of this incident was lodged with the police at police outpost Giloond bv Madhu Lal on 31st October, 1971. On basis of this reoort Ex. P. 7 a criminal case Under Section 391, I.P.C. was registered and investigation commenced. Daring the course of investigation, it was found that the two appellants along with their companions namely, Shanker and Mana were seen moving in the vicinity of the place of occurrence in the very night by Sohanlal Patwari and Labu Ram. It also came to the notice of the investigating agency that all the four accused had visited the house of Gokul PW 8 and had also met Virdhi Chand Head Constable, PW 19. The police arrested the four accused in due course and recovered lathis and the (sic) property. A pair of shoes, two letters and currency notes of the value of Rs. 100/ -, were recovered from the house of Uda appellant at his instance and in consequence of an information furnish d by him to the Investigating Officer. Likewise currency notes of the value of Rs. 100/ -, and a bag were recovered from the house of Gopiya in pursuance of his information recorded Under Section 27 of the Evidence Act. These articles recovered from the houses of Uda and Gopiya were later on put up for identification in a test identification parade held by Shri Govind Lal Sharma, Munsiff -Magistrate, Rajsamand on 17th November, 1971 and were correctly identified to be of Mitha Lal by him and other identifying witnesses. The two apppellants also were out up for identification (sic) Shri Abbas Khan, Tehsildar, P.W. 16. They were identified by Mitha Lal and others to be the same miscreants who had robbed Mitha Lal of his property and who were seen moving near the place of occurrence that very night. After collecting other necessary evidence the police put up a challan against all the four accused including the two appellants in the court of Munsiff Magistrate, Rajsamand, who, after conducting an inquiry preparatory to commitment, committed all of. them to the court of Sessions Judge, Udaipur, for trial.
(3.) THE learned Additional Sessions Judge, Udaipur who tried all the four accused, ultimately found Uda and Gopiya only guilty of the offences punishable Under Sections 397 and 394, I.P.C. respectively. The other two accused namely Shanker and Mana were acquitted of the offences, with which they were charged, because, according to the trial Judge the prosecution could not bring guilt home to these persons beyond reasonable doubt. Aggrieved by their conviction and sentences, the two appellants' have filed separate appeals. As common questions of fact and law are involved in these two appeals, they are disposed of together by this one judgment.;