- (1.) These two appeals are directed against the judgment dated 29-7-1982, passed by the Additional Sessions Judge, Raisinghnagar, by which the learned Additional Sessions Judge convicted accused-appellants Kalu alias Chhotu, Lakhi, Birjia, Amar Singh and Ram Swaroop for the offence under Section 396 read with Section 397 I.P.C. and sentenced each of the accused-appellants to undergo imprisonment for life and a fine of Rs. 500/-and in default of payment of fine further to undergo six months' rigorous imprisonment. Accused-appellants Kalu, Lakhi and Birjia were, also, convicted for the offence under Section 460 1PC and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 500/- each and in default of payment of fine to further undergo six months' rigorous imprisonment.
(2.) The accused-appellants were tried by the learned Additional Sessions Judge for the offences under Section 396 read with 397 and Section 460 IPC for committing dacoity in the house of one Ramjas Bishnoi in his Dhani situated in 2. MS.R., Police Station, Anoopgarh, and, also, committed the murder of Ramjas Bishnoi. The case of the prosecution is that in the intervening night of 18/19th January, 1978, the accused-appellants along with PW 1 Prithvi Singh went to the Dhani of Ramjas Bishnoi at about 1.30 a.m. on a jeep. Accused-appellant Ram Swaroop was deputed to keep a watch on the outer-side of the house and accused-appellant Amar Singh was deputed to keep a watch on the servant's quarter, who bolted the doors of the servant's quarters from out-side. Accused-appellants Kalu, Lakhi and Birjia and PW 1 Prithvi Singh reached near the house and found the door of the outer-room dosed. Accused Birjia entered into the room through a gap of one and a half feet in between the lower part of the door and the floor-level and opened the door of the outer- room. Thereafter the accused gave beatings to Ramjas, who was sleeping in the room and he, after receiving the injuries, became unconscious. Thereafter the three accused, viz., Kalu, Lakhi and Birjia proceeded towards the inner-room in the Dhani and knocked on the door. The door was not opened by the inmates and these accused, after breaking the door, entered into the room and asked PW 9 Chando, PW 10 Manohari and PW 14 Nihal Singh, who were inside the room to show the where-abouts of the money and other valuable articles. During this period, PW 1 Prithvi Singh was left to keep a watch on Ramjas Bishnoi as well as on the outer- room. On the refusal of the aforesaid three witnesses to show the where-abouts of the money and valuable articles, they were given beatings by these accused persons and in the light of two torches, which the accused were carrying, they went inside the store-room, opened the boxes and took-out the money and valuables etc. and went away. PW 9 Chando received as many as nine injuries while PW 10 Manohari received one bullet injury and PW 14 Nihal Singh, also, received one injury on the lower part of left jaw. Ramjas Bishnoi, also, received eight injuries and became unconscious. He was, later on, taken to P.B.M. Hospital, Bikaner, but he could not be cured and ultimately he succumbed to the injuries on 28-1-1978. Though the accused were expecting a heavy amount in the Dhani but they could be able to take-away only Rs. 400/-to Rs. 500/-, one gold Chain (Dora), one gold Tabiz having the symbol of Hanumanji, one pair of Paijeb, one wrist watch, one time-piece and certain clothes. The report of the incident was lodged at Police Station, Anoopgarh, in the same night at about 330 a.m. by PW 14 Nihal Singh. PW 4 Gurudeo Singh, who was the Sin of Ramjas Bishnoi, accompanied Nihal Singh to the Police Station. Accused Kalu, Ram Swaroop, Birjia, Lakhi, Amar Singh and PW 1 Prithvi Singh were arrested by PW 19 Ratan Singh - the Investigating Officer -on 5-10-1978. A request for their identification was made by PW 19 Ratan Singh by way of moving an application before PW 8 Mr. Radhey Shyam Gupta, the Munsif and Judicial Magistrate, First Class, Raisinghnagar, on 6-10-1978, who fixed the date for identification of the accused on 8-10-1978 in the Sub-Jail, Raisinghnagar, and sent the accused to judicial custody and issued notices to the witnesses to remain present in the Sub-Jail, Raisinghnagar, on 8-10-1978 for identification of the accused. The three accused, viz., Kalu, Birjia and Lakhi were correctly identified by PW 9 Smt. Chando, PW 10 Manohari and PW 14 Nihal Singh. The articles were recovered from the possession of the accused and the identification of these articles were, also, arranged by PW 23 Sukha Ram Tehsildar and the witnesses correctly identified these articles. The prosecution, in support of its case, produced twenty-five witnesses during the trial. The accused were examined under Section 313 Cr.P.C. and in support of their case, they produced DW 1 Mota Ram. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused- appellants as stated above, by his judgment dated 29-7-1982. It is against this judgment that the accused-appellants have preferred these two appeals.
(3.) It is contended by the learned counsel for the appellants that the accused have been falsely implicated in the case and there is not even an iota of evidence to connect the appellants with the crime. The conviction of the accused-appellants has been based merely on the statement of PW 1 Prithvi Singh - an approver in the case - who has falsely deposed against the appellants in order to save his own skin. It has, also, been submitted by the learned counsel for the appellants that there was no sufficient light available in the room, in which the inmates of the house could have seen the accused-persons, particularly in the circumstances when they were being given beatings by the accused. Moreover, the identification took place after nine months of the incident and it was not possible for the witnesses to carry into their memory the faces of the perpetrators of the crime. It has, also, been argued that the accused-appellants were arrested on 5- 10-1978, and they were shown to the witnesses on 6-10-1978, and the identification took place on 8-10-1978 and as the accused were shown to the witnesses, the identification of the accused- appellants is, therefore, unreliable. It has, also, been argued by the learned counsel for the appellants that the prosecution case does not find support from the medical evidence and a doubt arises against the prosecution for not sending the pistol for examination. It has, also, been submitted by the learned counsel for the appellants that in the site plan, the place where the witnesses were standing, has not been shown and, therefore, the presence of witnesses at the scene of the occurrence becomes doubtful and the accused-appellants, therefore, deserve to be acquitted. Lastly, it is contended by the learned counsel for the appellants that accused Kalu alias Chhotu was in Central Jail, Ambala, on the date of the incident, as is dear from the judgment EX. D. 8 and the release order EX. D. 7. EX. D. 8 is the judgment passed by the learned Additional Sessions Judge, Karnal, convicting and sentencing accused- appellant Chhotu S/o Sadhu Singh and grand-son of Gopal Singh, and EX. D. 7 the release order dated 1-2-1978. The learned Public Prosecutor, on the other hand, has supported the jurisdiction passed by the learned Additional Sessions Judge, Raisinghnagar, and has submitted that accused-appellant Kalu and accused Chhotu (who was convicted and sentenced by the learned Additional Sessions Judge, Karnal) are two different persons as is dear from the residential address of accused Chhotu Singh shown in the judgment in Karnak case and the residential address of accused- appellant Kalu shown in the instant case. It has, also, been stated by the learned Public Prosecutor that accused-appellant Kalu has not produced any evidence in support of his contention that he is the same accused Chhotu who was convicted and sentenced by the learned Additional Sessions Judge, Karnali and was lodged in the jail and, therefore, the learned Additional Sessions Judge, Raisinghnagar, was right in holding that accused- appellant Kalu and accused Chhotu (who was convicted and sentenced by the Additional Sessions Judge, Kamal) are two different persons.;