GOPAL KRISHNA SHARMA, J. - (1.) APPELLANTS Zahid Hussain, Gulam Mustafa. Ishad Ali, Aghaz Mehandi and Mohammad Sadiq have filed Criminal Appeals Nos. 124,141, 146 & 228 of 1984, against their convictions and the sentences passed by the Additional Sessions Judge No. 2, Jaipur City, Jaipur. APPELLANTS Gulam Mustafa, Irshad Ali, Mohammad Sadiq along with appellant Aghaz Mehandi have been found guilty of the offence u/s. 120-B, and each of them has been sentenced to four years' rigorous imprisonment and a fine of Rs. 500/-; and in default of payment of fine, to further undergo three months' rigorous imprisonment each. These accused-appellants have also been found guilty u/ss. 402 & 395, IPC. U/s. 402, IPC, each of them has been sentenced to further four years' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine, to further undergo three months' rigorous imprisonment. U/s. 395, IPC, each of these accused-appellants has been sentenced to six months' rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months' rigorous imprisonment. All the sentences awarded to these accused-appellants were, however, ordered to run concurrently. Appellant Zahid Hussain has been found guilty of the offence u/ss. 120-B & 402, IPC, and for each offence, he has been sentenced to four years' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine, to further undergo three months' rigorous imprisonment. Both the sentences awarded to this accused-appellant, were also ordered to run concurrently.
(2.) APPELLANT Abdul Aziz who is complainant in this case, has also filed an appeal against the judgment of the Additional Sessions Judge No. 2, Jaipur City, Jaipur, dated 15th Mar. , 1984, which is Criminal Appeal No. 191 of 1984. In his memo of appeal, he has prayed that his appeal may be accepted and the goods/articles Nos. 1, 16 to 19, 21 to 24, 31 to 33, 35 to 37, 20 and 25 to 30 as mentioned in para-7 (a), (b), (c), (d), (e) and (f) of the memo of appeal be released and handed over to him immediately without waiting for the decision of the appeal and without waiting for the trial of the accused, Ahmad Hussain. The police submitted a challan against eight accused persons including the appellants. The other accused persons were Abdul Latif, Abid Hussain and Ahmad Hussain. The trial court has acquitted accused Abdul Latif and Abid Hussain. Accused Ahmad Hussain is absconding. One Dilshad was also arrested in this case by the police, who was made approver and has been examined as PW 2. So, no challan was submitted against Dilshad. Accused-appellant Irshad Ali has not been represented by any advocate before this Court. On 16th Sept. , '81, at about 5-30 AM, one Maqsud Ahmad Patel gave information on telephone to Police Station - Ramgunj, Jaipur, to the effect that some dacoits had entered into the house of Abdul Aziz; and gave him beating; and looted his properties. This information was noted in the 'roznam-cha', and the SHO of the said police station, Narendra Johari immediately rushed to the spot. Abdul Aziz at whose house, the dacoity was committed, gave his statement to the SHO, which was recorded by him, and this 'parcha-Bayan' is Ex. P. l. In this Parcha-Bayan', Abdul Aziz narrated that he, his wife and two small children were sleeping on the third storey of his house as usually. The other family members had gone a day before to 'tala-Bhuranbaba' for 'ziarat'. Last night at about 10'clock, one thief pressed his mouth, and when he woke up, he saw that another person was closing the mouth of his wife. The light in the room was on. He saw six persons in the room, two of them were having 'pistols' (revolvers) in their hands and the remaining were having knives. One of those persons having a revolver in his hand, demanded the key from him, whereupon, he told that man that the key was with his brother. At this, that man hit him an his head with the butt of revolver, as a result of which, blood came out of his head. Then the accused persons tied his hands and feet. They also tied the hands and feet of his wife. They also put tapes on their mouths. Those persons then told them that if they tried to cry, they would be murdered. Thereafter, those persons broke the almirah and the safe, and took out gold and silver ornaments, some rough emeralds and also some finished emeralds. They also snatched away the 'laung' from the nose of his wife and two gold bangles from her hands. 'bijlia' from her ears, silver - 'payjeb' from her feet, and one automatic Citizen-Watch were also taken by them. From the almirah and the safe, they took out a number of gold and silver ornaments, gold-necklaces, one Ladies suit-cloth (silken) of brown colour; one piece of cloth of yellow colour (terrycotton) and Rs. 15,000/-in cash. One 'seiko' watch was removed from his hand by the accused persons, who also took two new watches which were kept in the almirah. In his 'parcha-Bayan', Abdul Aziz has given a detail of the ornaments and the other articles which were taken away by those persons. According to him, all the six persons were of young age and were wearing pents and bush-shirts. He has also stated in the 'parcha-Bayan' that if those persons come to him, he could identify them. According to him, those persons remained in the room for about three hours, and during that period, they were searching for other articles, and when they left his house, his wife untied her hands, removed the tape from her mouth and called Lachhma, who later on, called Haider. Haider then came there and untied his hands and feet, who later on, informed his brother, Maqsud Ahmad and the other people of the 'mohalla'. He (Abdul Aziz) has further stated in his 'parcha-Bayan' that he could identify the articles which were taken away by those persons.
(3.) THE SHO, on the basis of this 'parcha-Bayan', prepared the FIR, Ex. P. 2, and registered a case u/s. 458/380, IPC. The police, after completing investigation, submitted a challan against ten accused persons showing Abdul Arif alias Pehlwan, Aghaz Mehandi, Phoorkan and Dilshad as absconders. Accused Dilshad was later on arrested, who gave his statement on 19th May, 1982 before the CJM, Jaipur City, Jaipur, who was given pardon and made approver. Thereafter, a challan was submitted against Aghaz Mehandi, Mohammad Sadiq and Irshad Ali on 6th Aug. '82. A challan was also filed against accused Vasudev. After hearing the arguments before charge, the learned Additional Sessions Judge discharged accused Vasudev. He, however, framed the following charges against the other accused persons:- "name of the accused Charge under Sections 1. Gularn Mustafa : 120-B, 402, 395, 397 & 412 IPC. 2. Abdul Latif : 120-B & 414, IPC. 3. Zahid Hussain : 120-B, 402, 395 & 397, IPC. 4. Abid Hussain : 120-B & 412, IPC. 5. Irshad Ali : 120-B, 402, 395 & 397, IPC. 6. Mohammad Sadiq : 402, 395, 120-B & 397, IPC. 7. Aghaz Mehandi : 120-B, 402, 395 & 397, IPC. 8. Ahmad Hussain : 120-B, 402, 395, 397 & 412, IPC. ;