(1.) This appeal by special leave arises out of the judgment dated 14.05.2012, passed by the High Court of Judicature at Allahabad dismissing Criminal Appeal No.2 of 1981, confirming the conviction of the appellants under Section 396 IPC and also the sentence of ten years rigorous imprisonment imposed on each of them.
(2.) Case of the prosecution is that on the intervening night i.e. on 21/22.09.1979, the complainant-Patia Singh (PW1) was sleeping in his house. His brothers Saran Singh, Sukhbeer Singh and his children were sleeping in their house. Both the houses were adjacent to each other. In the midnight at about 1.00 o'clock, PW1-Patia Singh heard the noise of gun firing and in the light of torch, he saw that in the house of his brother Saran Singh, about 14-15 dacoits were looting the property and that two of them on the roofs and two dacoits were standing on the gate holding guns and they were continuously firing. All the inmates of the house witnessed the incident in the torch light and electric light emanating from tube well. On raising alarm, the villagers came out to help them and they were carrying torches and they warned the dacoits from behind the walls. When Saran Singh tried to control the dacoits, the dacoits opened fire and he was shot dead. The miscreants looted the articles in about one and half hours and fled away from the scene.
(3.) On the basis of the statement of the complainant-Patia Singh (PW1), a case was registered under Section 396 IPC in FIR No.258/1979 in P.S. Parikshitgarh, Meerut on 22.09.1979. PW8-Nepal Singh (SI) had taken up the investigation and he investigated the spot and collected the list of looted articles from Jay Singh and Sukhbeer Singh. Harpal Singh-PW4(SI) conducted the inquest on the body of the deceased Saran Singh. Autopsy on the dead body was performed on 23.09.1979 by Dr. S.P. Goel and he opined that the death was due to gunshot injuries. PW8-Nepal Singh recorded the statement of the witnesses and seized the torches, lanterns and prepared the site map and recovery memo. The accused were arrested on the night of 8/9.10.1979 and the test identification parade was conducted in District Jail, Meerut on 15.11.1979 by PW6-Seeta Ram (Special Executive Magistrate). PW7-Bhanu Pratap (SI) had taken up further investigation and received the report of test identification parade. On the basis of investigation conducted by PW7 and his predecessor investigating officers, chargesheet was filed against the accused-appellants, namely, Iqbal and Khurshed and against non-appealing accused, namely, Kripa s/o Buddhu and Kishnu s/o Ram Chander under Section 396 IPC.