M.L.JAIN, J. - (1.) THIS is an appeal against the judgment passed by the learned Additional Sessions Judge. Gangapur City dated June 30, 1977. The appellants were convicted and sentenced by him as fallows: (1) Under Section 395 IPC to rigorous imprisonment for 5 years and a fineof Rs. 500/ - each, in default thereof to rigorousimprisonment for six months.(2) under Section 323 IPC to rigorous imprisonment for six months and a fineof Rs. 250/ - each, in default thereof to undergorigorous imprisonment for 2 months. The substantive sentences of imprisonment were directed to run concurrently.
(2.) THE case against the accused -appellants is that they, along with Hari Singh and 4 others, committed house trespass by night in the house of Pooran Lal Gera, A.S.M. Gangapur City, on the night intervening December 14 and 15, 1974. They inflicted injuries on him, on his wife and his sister -in -law, and carried away their wrist watches and an amount of Rs. 50/. They removed a box also, but left it along with its contents outside the house. Upon a report of the occurrence having been lodged by one Onkar Datt Sharma, the police swung into action but could not trace the culprits. After investigation, it put up a challan against four persons on 4th December, 1975, with the allegation that on the same night of 14th 15th December, 1974, the same gang had committed another theft in Kinpada, Gangapur City, and Mahu Kalan One Nathiva, was arrested and the police gave final report on 23rd May, 1975 Later on Sistia by and Hari Singh were arrested in some other case of Jaipur and gave information about the theft at Gangapur City. The accused by then bad been arrested in the Mahu theft case in police Station Gadh Moran. They were obtained in the present case and put up or test identification on 3rd October, 1975. The case was then committed to the court of sessions. Out of them, one Hari Singh was discharged by the learned Additional Sessions Judge, but he convicted the present appellants and sentenced them as aforesaid upon the following pieces of evidence: (1) Medical evidence, and (2) the identification made by the witnesses in the court corroborated by test identification. The result of the test identification had been that Gurubachan Singh whose house is opposite that of the complainant, separated by a road, and claims to have seen the dacoits, identified appellant Kartar and appellant Ali. Other witness Shyam Sunder Mishra who was also with Gurubachan Singh, identified all the three appellants The complainant Pooranmal Gera identified Ram Swaroop and Ali, The learned Additional Sessions Judge held that the test -identification, so conducted, corroborates the evidence of the prosecution witnesses.
(3.) THE learned Counsel for the appellants has assailed the judgment chiefly on the ground that the two eye witnesses Gurubachan Singh and Mishra were got up witnesses and their evidence suffers from several material omissions. The accused were not known before hand to the witnesses and that the occurrence hiving taken place in dark night, it was not possible for them to have axed the identity of the culprit. The second ground of attack was that no recovery has been effected either of the wrist watches or of the money and it cannot even be said that any theft had taken place The prosecution has also led evidence that these accused were also alleged to have committed dacoity in Mahu kalan and Jaipur on the same night. It was not possible for these accused persons to have committed dacoit in Gangapur and Jaipur in the same night. According to the police challan the basis of the case is the statement of sitia and Hari Singh but sitia was not examined and Hari Singh was discharge. It was urged that the whole case was false;