B.R. Arora, J. - (1.) This appeal is directed against the judgment dated 21-7-92, passed by the District and Sessions Judge, Bikaner, by which the learned Sessions Judge convicted and sentenced the accused-appellants for the offence under Sections 395, 397 and 460,Indian Penal Code.
(2.) The case of the prosecution is that about ten years before the date of the incident, the complainant party purchased some land, situated in Chak No. 5 P.M., from one Sugna Ram Bawri and constructed their Dhani on this land. They were living in that Dhani along with their family members. On 26-7-88, when informant Raj Kumar, his father Veer Singh, mother and sisters were sleeping in the Dhani after taking their meals, and his uncles Sumer Singh, Pratap Singh and Hari Singh and aunt Smt. Umrawati and Smt. Kamla were, also sleeping in the court-yard, then at bout 10.00 p.m., he received a lathi blow on his right shoulder and when he got-up, he saw five persons in underwears and Baniyans, who were muffled faces and were having Lathis and Barchi and were giving beatings to his father Veer Singh, uncles Sumer Singh, Pratap Singh and Hari Smgh and were, also, saying that they would kill all of them and take away the valuables. Veer Singh - the father of the complainant Raj Kumar - received injury by the Barchhi as well as by Lathi on his left jaw: Sumer Singh received injury by Barchhi and Lathi on his head, Pratap Singh received injury by a Lathi on his (ace and Hari Singh received an injuries on lower and upper limbs as well as on head, Smt. Kamla and Smt. Umrawati tried to save Sumer Singh, Pratap Singh and Hari Singh and in that process they, also, received injuries by Jayee. When Balwanti tried to save her husband Veer Singh, the accused ran towards her, upon which Smt. Balwanti raised an alarm. After giving beatings to these persons, the accused went inside the Saal, collected all these ladies there, took-away the ornaments which they were wearing at that time and ran away. The report of this incident was lodged at Police Station, Chhattargarh, on 27-7-88 at about 4.30 p.m. by PW 4 Raj Kumar. The police, after necessary investigation, presented the challan against these three accused-appellants and they were tried by the learned Sessions Judge, Bikaner. The prosecution, in support of its case, examined eighteen witnesses. The learned Sessions Judge, after trial, convicted the appellants for the offences under Sections 395 397 and 460,1.P.C. and sentenced each of them to undergo seven years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 395, I.P.C.; ten years' rigorous imprisonment and a fine of Rs. 200/-and in default of payment of fine further to undergo three months' rigorous imprisonment for the offence under Section 397,1.P.C. and live years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo two months rigorous imprisonment for the offence under Section 460, I. P. C. D Dissatisfied with the judgment dated 21 -7-92, convicting and sentencing the accused-appellants, the appellants have preferred this appeal.
(3.) It is contended by the learned counsel for the appellants that the prosecution case mainly rests upon the identification of the accused by the prosecution witnesses and the recovery of some articles, but no reliance can be placed on the testimony of these prosecution witnesses and the conviction of the appellants, merely on the basis of the identification, cannot be made as the prosecution witnesses had no sufficient opportunity to take mental-note of the special features of the culprits as there was no light at the time when the incident took-place and the particulars of the special features of the culprits have not been given either in the First Information Report or in their statements recorded by the police at the investigation stage and, therefore, no conviction can be based on the identification of the accused, which was made after two months of the incident. It has, also, been contended by the learned counsel for the appellants that neither any list of the looted articles was furnished nor their description was ever given by the complainant side and it is only after the arrest of the accused-appellants and the recovery of the articles that the prosecution got the same identified as the articles belonging to the complaint party and as such no conviction can be based on such evidence. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that it was a moon-lit night and the time of the incident was only 10.00 p.m. and the accused-appellants remained there considerably for a long time and, therefore, there was every possibility of keeping in memory the faces of the accused and there was, also, every possibility of their being identified and they have been correctly identified by the witnesses in the identification parade held by PW 16 Smt. Kamal Nath - the learned Judicial Magistrate, Bikaner and the accused-appellants were, also, identified by the prosecution witnesses in the trial Court. It has, also, been submitted by the learned Public Prosecutor that though the list of the articles was not furnished but the particulars of the articles were given in the statements of the prosecution witnesses recorded under Section 161, Cr. P. C. and the witnesses have correctly identified these articles during the test identification as well as in the trial Court and, therefore, the accused-appellants have rightly been convicted and sentenced by the learned Sessions Judge.;