- (1.) THIS is a joint appeal by Laliya. Jaganriath, Jeewan, Chothia and Gheesa and is directed against the order and judgment of the Sessions Judge. Alwar dated 2711-1965, convicting the first three, appellants for offence under Section 396, indian Penal Code, and sentencing them to ten years' rigorous imprisonment and a fine of Rs. 200; in default, one year's further rigorous imprisonment, and the remaining two appellants for an offence under Section 411, Indian Penal Code, and sentencing them to three years' rigorous imprisonment.
(2.) THE facts material and relevant for the disposal of the appeal may be stated as follows: it is alleged that on 7-8-1964 at about 4 of 5 O Clock seven persons including the five appellants, armed with guns and lathis, arrived in the 'bazar' of village Bamanwas and looted a few shops. After the commission of dacoity they left the village along with booty. A good number of villagers collected and immediately chased the offenders and over-took them at about a distance of four furlongs to one mile. The alleged dacoits finding them pursued by the villagers took their positions and there was an encounter between the dacoits and the villagers. There was exchange of fire between them. During the encounter the alleged dacoits and some of the villagers received injuries. One Bodia, a villager, died on the spot. Ultimately, the villagers overpowered the dacoits and captured four out of the seven offenders viz. , the three appellants Laliya, jeewan and Jagannath and one Prabhu, with some of the looted property. According to the prosecution, the remaining three offenders managed to escape with a part of the booty. It may be mentioned at this stage that when the loot in the village was going on Chiranjilal P. W 2 informed one Omprakash---a Gram sewak of village Bamanwas, who in his turn sent a written report to the police station, Thana Gazi, through Chiranjilal P. W. 2. The police left for the scene of occurrence. By the time the villagers took four offenders and a part of the looted property to the village the police had arrived in the village. The four dacoits and the looted property recovered at the place of the encounter were handed over to the police. The police along with four arrested offenders left for the police station. In the way Prabhu expired and the remaining three Laliya, Jeewan and Jagannath were formally arrested. During the investigation the police learnt that the other persons concerned in the dacoity were Ramnath, Gheesa and Chothia, the prosecution story further is that Gheesa and Chothia surrendered themselves before the police on 19-8-1964 and at the time of their surrender Gheesa produced a pair of gold 'bangari' Ex. 35 and Chothia produced one Kanakti Ex. 36, which were seized and sealed vide the seizure memos Ex. P.-4 and Ex. P-3 respectively. Some more recoveries were effected at the instance of Gheesa and ramnath. During investigation the articles recovered were got identified by the witnesses and the identification by the witnesses of the accused Ramnath, Gheesa and Chothia was also arranged. The post mortem examinations on the dead bodies of Prabhusingh and Bodia were conducted and the injuries of the offenders as well as the villagers were also examined. After investigation the police put up a challan against six persons, that is, five appellants and one Ramnath for offences under ss. 396 and 397, Indian Penal Code, before the Munsif-Magistrate, Thana Gazi, who after enquiry committed all the six accused to the Court of Session, Alwar. The accused pleaded not guilty and claimed to be tried. The prosecution examined twenty witnesses. When examined under Section 342, criminal P. C. accused Laliya, Jeewan and Jagannath stated that on the date of the dacoity they were working in the field of one Shriram in the jungle of Bamanwas and were preparing a 'chhapar'. They further stated that when they saw the villagers chasing the dacoits they also joined them in the pursuit. Some of the villagers, however, began beating, them with the result that they became unconscious. When they regained a consciousness they found themselves in the general Hospital at Alwar. The accused Chothia Gheesa and Ramnath denied having participated in the commission of the dacoity. They denied the recovery of ornaments from their possession. The Sessions Judge after review of the entire evidence observed in the first instance that "again there is nothing to suggest that these three accused (Laliya, jeewan and Jagannath) were captured and beaten by the villagers on a mistaken identity. The dacoity took place in broad day light between 4 and 5 p. m. In the month of August. The villagers chased the dacoits as soon as they left the bazar and overpowered them at a short distance from the village in broad day light. In these circumstances, it cannot be said that the villagers captured them on a mistaken identity". Then referring to the encounter between the alleged dacoits and the capture of the three dacoits, he recorded the conclusion "all these circumstances lead to irresistible conclusion that a dacoity was committed oft 7-81964 by seven persons armed with deadly weapons, that Laliya, Jeewan and jagannath were amongst the dacoits and that the murder of Bodia was committed in the course of the dacoity, when the dacoits were in flight with the looted property," Dealing with the case of Gheesa and Chothia, the learned Judge recorded a finding that "from the statement of P. W. 21 Kistoorilal it stands proved beyond doubt that Gheesa produced Ex. 35 and Chothia produced Ex. 36". However, on the basis of recovery, the Sessions Judge found it difficult to hold that Gheesa and chothia participated in the dacoity. On these findings, he convicted the three appellants for an offence under Section 396 arid Gheesa and Chothia for an offence under Section 411, Indian Penal Code.
(3.) IN this appeal, the learned counsel for the appellants made three submissions: (a) That none of the eye witnesses alleged to be present at the time of the dacoity identified the accused to be amongst the dacoits and consequently, the Sessions Judge was wrong in holding that Laliya, jeewan and Jagannath were amongst the dacoits. (b) That the transaction of encounter and the murder of Bodia should be held distinct and separate from the transaction of dacoity and the sessions Judge committed an error in holding that the murder was committed while committing dacoity. (c) That the story of the prosecution that the two accused Chothia and gheesa surrendered themselves before the police and produced the two ornaments is not a probable story and since Kistoorilal, P. W. 21 has not been corroborated by the motbir witnesses, namely, Bhanwarlal, P. W. 11 and Abuul Hamid P. W. 12, the recovery of the ornaments from the possession of Gheesa and Chothia should not be held proved and their conviction under Section 411. Indian Penal Code, deserves to be quashed. ;