VINOD SHANKER DAVE,J. - (1.) THIS appeal is directed against the judgment dated August 14, 1985 and September 4, 1985 of Additional Sessions Judge, Gangapur City convicting and sentencing the accused appellant as under: Under Section 395 IPC 7 years RI and a fine of Rs. 100/ -, in defaultof payment of fine to further undergo RI forone month;Under Section 397/398, IPC 7 years RI;Under Section 459, IPC 7 years RI and a fine of Rs. 200/ - in defaultof payment of fine to furthhr undergo RI fortwo months; All the sentences of imprisonment have been ordered to run concurrently.
(2.) THE prosecution case is that a report was lodged at police station Mandavar on October 4, 1983 by one Dwarka Prasad where in he informed the police also that 6 -7 miscreants have entered their house and looted the property and have also opened fire, he has escaped and came to report. On receipt of this a case was registered under Section 395/397 IPC and the Station House Officer started for the site. By the time he reached there the miscreants had left after looting the property and injuring several persons by fire arms as well as lathies. The Investigating Officer prepared the site plan and recovered the empty cartridges as also clubs lying there. He also recovered blood stained clothes and some of the property left behind which had been taken out from the persons of the injured. When the investigation was in process in FIR No. 84/83 of the same police station the accused was apprehended for an offence under Section 3/25 of the Arms Act. It was on December 1, 1983 that one 12 bore country made pistol, two cartridges and few more things were recovered from this accused vide recovery memo Ex.P 10. When that case was being investigated the accused admitted to have also participated in the dacoity committed in village Garh Himmatsingh for which case No. 68/83 was registered on October 4, 1983. This information he had given on December 2, 1983 On the very next day, i.e., December 3, 1983 the accused was sent to judicial custody and was lodged in sub jail Hindaun -city where on December 6, 1983 a test identification parade was arranged by Munsif and Judicial Magistrate 1st class, Hindaun -city. Six persons, namely. Hariya, Vijaysingh, Man Singh, Hari Om, Parsadi and Mst. Kunta were asked to identify the accused and all of them correctly identified the accused. It is thereafter that further investigation continued. After completing the investigation the accused -appellant was charge -sheeted in the court of Addl. Munsif and Judicial Magistrate, Hindaun -city who committed the accused to the court of Addl. Sessions Judge, Gangapur -city who framed charges for offence under Sections 395, 397, 398 and 459 IPC. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined 19 witnesses and the accused none. His case is that he and his wife when reached the Bus -stand Mandavar on their way to Menhadipur -Balaji they were apprehended there by the police. His wife was detained for two days in police station, while he was detained for 2 -1/2 or 3 months and was shown to the witnesses. He denied the recoveries of arms from his person. The learned Addl. Sessions Judge held the accused guilty of offence under Sections 395, 397, 398 and 459 IPC vide his judgment dated August 14, 1985 and adjourned the case for hearing arguments on sentence. An application was moved by the Public Prosecutor that the accused was convicted in case No. 59/66 by police station, Chirgaon District Jhansi by Judicial Magistrate. Jhansi on February 27, 1967 for offence under Section 380 IPC and 457 IPC for 12 months and 18 months respectively and as such he should also be changed under Section 75 IPC and evidence about sentence should be taken. The learned Judge vide his order, dated August 16, 1985 framed an additional charge under Section 75 IPC. However, no evidence was produced and the learned Judge vide his order, dated September 4, 1985 passed the aforesaid sentence.
(3.) THE learned Counsel for the accused -appellant challenging the conviction and sentence submitted that there is no evidence to hold that the accused appellant was a participant in the dacoity which was committed on the night intervening between 3rd and 4th October, 1983 at the residence of Mool Chand Sunar. It is submitted that there is no convincing evidence on record to show that there was sufficient light in which the accused could be identified. Terror was prevailing according to the prosecution witnesses at the time of occurrence and it was impossible for them to have identified the accused -appellant. It is submitted that accused -appellant had been detained for 2/1 -2 months prior to the date of holding the identification parade and during this period he had been shown to the witnesses. It is further alleged that no reliance could be placed on the statement of PW 1 Dwarka Prasad, PW 2 Smt. Kunta, PW 3 Man Singh, PW 4 Hari Om, PW 6 Mool Chand and and PW 7 Hariya. He submits that they are highly interested witnesses and their statements are inconsistent and contradictory.;