B.R.ARORA, J. - (1.) These nine appeals are directed against the judgement dated 31-8-87, passed by the Additional District and Sessions Judge, Nagpur, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellants for the offences under Sections 460, 396, 395, 397 and 307/34 I.P.C. As all these nine appeals relate to the same incident, therefore, they are being disposed of by this common judgement.
(2.) Appellants Raju alias Rajendra Prasad, Rajveer, Karan Singh, Balveer Singh, Virendra Singh, Lohre and Murari, alongwith Bhera Ram and Ram Mohan were tried by the learned Additional Sessions Judge for the offences under Sections 460, 396, 395, 397, 304/34. and 120-B, I.P.C. The case of the prosecution is that on 29-10-83, P.W. 4 Hanwant Singh was sitting in his fortress situated in village Dugholi. At that time Prahlad Singh, Nathu Singh, Ganpat Singh and Bal Singh were also, sitting with him. Nathu Singh, Bai Singh and Ganpat Dass had come to enquire about the health of Hanwant Singh as in those days he was not keeping the good health. Prahlad Singh was living with Hanwant Singh in the fortress. Bal Singh went to make the call of the nature and in the meanwhile seven-eight persons, armed with guns and country made pistols etc. entered in the room. One of them enquired, "Who is the Thakur", whereupon Hanwant Singh replied that he is the Thakur. Accused Virendra Singh started giving beatings to Hanwant Singh with a Chain. Nathu Singh and Ganpat Singh tried to intervene but they were threatened and put at the gun point. The accused thereafter broke the latches of the Almirahs and took away the guns and cash lying therein. The accused, also, broke the upper almirah and took away fifteen bundles of Biris and four packets of Agarbaties and put them in their pockets and threw the other goods on the floor. Thereafter three accused remained there to keep a watch on them and two-three accused went into the other room as well as in the upper Hall and ransacked the whole house, broke open the doors of the almirahs, took-away the attachee' also and broke the locks of the attachee' and the boxes and took away gold and silver articles and jewelleries and a cash of Rs. 100/-. They, also, took-away gold Zumeries Pair, one Topus, gold chain with locket, one Mada1iya of gold Paijebs (big and small). silver Kadlas etc. P.W. 7 Man Singh and P.W. 8 Bhanwar Singh had come earlier and were repairing the electric fan in another room. When they were repairing the electric fan they heard the noise in the Drawing room and when they peeped in that room, from where the noise was coming, they saw the accused giving beatings to Thakur Sahib. Man Singh and Bhanwar Singh, threatened of the incident, left the house from the Western-side door of the house. Man Singh went to the shop of Tulsi Ram and informed Ram Dhan, Sawant Ram. Tulsi Ram, Jeeta and ten-fifteen other persons sitting there that dacoits had come in the fortress. Tulsi Ram asked to collect the villagers and suggested that they will collectively go to the fortress but Ramdhan and Sawant Ram asked who was going to kill them and they proceeded towards the fortress. Thereafter 25-30 more persons collected near the shop of Tulsi Ram and Man Singh, also went with them towards the fortress. When they reached near the Southern corner of the fortress they heard the sound of firing. The villagers, on hearing the sound of fire, ran away. P.W. 8 Bhanwar Singh came out of the fortress from the Western side with Man Singh and went towards the shop of Nathu and informed the villagers that the dacoits had come in the 'Garh' and are beating Thakur Sahib. Thereafter Sawanta Ram and Ram Deen ran towards the fortress and he, also, followed them and when they reached near the corner they heard the sound of firing. On seeing the firing he, also, ran away along with the villagers. Though all other accused went inside the fortress and ransacked the house but two persons remained at the main gate to keep a watch. When Sawanta Ram and Ramdeen reached near the main gate, these two accused, who were keeping watch on the main gate, alerted them not to proceed further and Raju Singh fired towards Sawanta Ram and Ramdeen. The fire, made by Raju, hit Sawanta Ram. The other accused fired on Ramdeen, which hit him on his stomach and on receiving the injury Ramdeen fell down on the ground and breathed his last. Mohan Ram and Sawant Ram dragged Ramdeen. In the meantime all the accused came out from the fortress and thereafter went towards the Northern side. P.W. 20 Madhuraj Singh, who is the son of Hanwant Singh, was in his room and was changing his clothes. When he heard the sound of firing, he tried to see from the window of his room what was happening in the drawing room and saw eight-ten strangers in the room who were armed with guns and chains and were making enquiry from his father and at that time the locks of the almirahs were broken. He immediately left the house from the back door and went to Police Station, Jayal, in a bus and reported the matter to the police. At the time of the incident, Yuvraj Singh - the other son of Hanwant Singh - was, also, in his room and Smt. Shanti Devi, the servant, was, also, in the internal side of the fortress called "Jananakhana". They had, also, seen the accused as well as the incident. The prosecution, in support. of its case, examined twenty-eight witnesses. The accused did not examine any witness in their defence. The learned trial Court after trial, acquitted accused Bhera Ram by giving him the benefit of doubt but convicted accused-appellants and Ram Mohan for the offences under Sections 460, 396, 395, 397 and 307/34 I.P.C. and sentenced each of them to undergo imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two month's rigorous imprisonment for the offence under Section 460 I.P.C; imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two month's rigorous imprisonment for the offence under Section 396 I.P.C. imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two months' rigorous imprisonment for the offence under Section 395 I.P.C; five years' rigorous imprisonment and a fine of Rs. 1,000/- each and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 397 I.P.C. and imprisonment for life and a fine of Rs. 2,000/- each and in default of payment of fine further to undergo two months' rigorous imprisonment for the offence under Section 307/34 I.P.C. All the substantive sentences were directed to run concurrently. It is against this judgement dated 31-8-87, convicting and sentencing the accused that the appellants have preferred these nine appeals. Accused Ram Mohan, also, preferred an appeal which was registered as D. B. Criminal Appeal No. 398 of 1987, but during the pendency of the appeal he breathed his last and, therefore, his appeal was dismissed on 23-8-93, as it stood abated.
(3.) It is contended by the learned counsel for the appellants that (i) in the FIR..., lodged at Police Station, Jayal, the features of the accused or their identification marks were not given and, therefore, it was not possible for any human-being to remember the features of the accused after a long lapse of time during the identification parade and there was every likelihood of committing a mistake by the witnesses in the identification and in the absence of any particular features and identification marks of the accused it is unsafe to convict the accused-appellants for such serious offences on the basis of the identification parade; (ii) during the identification parade neither the names of the persons, who were mixed with the accused at the time of the identification parade, have been given nor it has been shown that what precautions were taken by the learned Magistrate at the time of holding the identification parade and the accused were shown to the witnesses at the Police Station before the identification parade was held and in the Court accused Virendra Singh was identified only by P.W. 4 Hanwant Singh and no other witness has identified this accused; (iii) Bal Singh and Madhuraj Singh are not the reliable witnesses; (iv) the recoveries have been made from the jungle and not from the accused-appellants; and (iv) accused Balveer Singh has the marks of small-pox on his face and accused Rajveer Singh has a wink in his eye and the persons similar to them were not mixed during the identification parade and looking to these infirmities the appellants deserve to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgement passed by the Court below.;