STATE Vs. BACHI SINGH

JUDGEMENT

(1.) This appeal preferred by the Appellant/State, under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Code of Criminal Procedure), is directed against the judgment and order dated 24-11-1993 passed by the Special Judge (Additional Sessions Judge), Nainital, in Sessions Trial No. 258 of 1988 State v. Bachi Singh and Ors. and S.T. No. 138/1989 State v. Bachi Singh, thereby acquitting the Respondents Bachi Singh, Pan Singh and Madan Singh for the offences punishable under Sections 395/397 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC) and further acquitting the accused/Respondent Bachi Singh under Section 25 of the Indian Arms Act, 1959 (hereinafter to be referred as the Act).

(2.) I have heard learned Counsel for parties and perused the entire material available on record.

(3.) In brief the prosecution case is that an FIR Ex. Ka-1 was lodged by Jaman Singh (PW1) stating therein that on 15-4-1988 at about 10 p.m., five persons, having covered their faces with clothes, entered in his house and broke the electric bulb lighting there. At that time, his brother Nain Singh, mother Smt. Parvati Devi, sister in law Smt. Bhawani Devi, wife Smt. Hemanti Devi and daughter Smt. Deepa Devi along with domestic servant Bhim Singh was sitting in the drawing room of the house after eating their meals. Out of those five dacoits, three were armed with knives one was having tamancha and one was having danda in their hands. After entering into the house, those five dacoits threatened complainant's brother Nain Singh with knife and tamancha and asked him to give his valuables to them. When Nain Singh made a protest, then the dacoits caused serious injuries to him by knives. When complainant's mother Smt. Parvati Devi and servant Bhim Singh tried to intervene, the dacoits also caused injuries to them with knives. In the scuffle took place at the spot, the clothes covering the faces of three dacoits were removed and they were identified as Bachi Singh, Pan Singh and Madan Singh (present Respondents/accused) while the remaining two dacoits could not be identified. Therefore, these dacoits attacked upon complainant's wife Hemanti Devi, sister in law Bhawani Devi and daughter Deepa Devi. From his daughter Deepa Devi, the dacoits looted one necklace (Guloband) about 2 Tolas of gold, one pair of earrings of about 1/2 tola made of gold and one Mangalsutra made of silver about 3 tolas. From complainant's sister in law Smt. Bhawani Devi, the dacoits looted a necklace (Guloband) made of gold of about 2 Tolas and one pair of Dhagulati (an ornament) made of silver of about 24 Tolas. At the time of incident, he had gone at his neighbourhood and while returning, he heard scream on which he came to his house in the light of torch which he was having. He further stated that the accused Bachi Singh caused fire to him from his tamancha, however he could narrowly escape unhurt. Thereafter he also identified Pan Singh and Madan Singh by flashing the torch but the rest two accused could not be identified. He raised the noise and the dacoits ran away. He entered inside the house where he saw that his brother Nain Singh, Smt. Parwati Devi and domestic servant Bhim Singh had sustained the injuries of knives. He was informed about the incident by his brother Nain Singh who disclosed him the entire story about the dacoits. It was further stated that the unknown two accused could be identified by him and his family members and the dacoits had also left one pair of shoes and the Khokha of Tamancha on the spot. Since the Patwari of Patti Nai was not available on that date, hence the report was lodged with Patwari of Patti Sundarkhal. With the same averments, the FIR Ex. Ka-1 was lodged by Jaman Singh on 16-4-1988 at about 12.30 p.m. with Patwari at Patti Sundarkhal. On the basis of this FIR, P.W.8 Bhuwan Chandra, Patwari prepared Chik FIR of the case, i.e. Ex. Ka11. He also made entry in G. D., copy of which is Ex. Ka-12. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U. P. Govt. Notification No. 494/VIII-418-16 dated 7-3-1916). Investigation of this case was also entrusted to PW8 Bhuwan Chandra, Patwari. Injured Bhim Singh, Smt. Hemanti Devi, Smt. Parvati Devi, Smt. Bhawani Devi and Nain Singh were medically been examined on 16-4-1988 by PW6 Dr. R. K. Pandey and their medical reports Ex. Ka-5, Ka-6, Ka-7, Ka-8 and Ka-9 respectively were prepared. On 17-4-1988, S. O. K. S. Aswal along with Trilok Singh Chilwal, Supervisor Kanungo, Bhuwan Chand, Patwari/IO of the case and constable Ashar Aalam Khan arrested the accused/Respondent Bachi Singh and got recovered one country pistol of 12 Bore and two live cartridges of 12 Bore and prepared Fard, i.e. Ex. Ka-10. On 24-4-1988, accused/Respondents Hira Ballabh and Madan Singh were arrested by S. O. K. S. Aswal accompanied by PW-8 Bhuwan Chandra and others. From the possession of accused Hira Ballabh, a golden necklace (Guloband) and one pair of two earrings made of gold were recovered while from the possession of accused, no item was recovered and for recovery of the above said, Fard Ex. Ka-4 was prepared and accused Heera Ballabh was made Baparda on the spot. The I. O./Patwari during investigation inspected the place of occurrence and prepared site plan Ex. Ka-13. He also recovered one khokha cartridge of 12 Bore from the place of occurrence and prepared Fard Ex. Ka-14. He also recovered the bloodstained clay and plain clay from the place of occurrence and prepared Fard Ex. Ka-15. He also recovered one pair of shoes from the place of occurrence and prepared Fard, i.e. Ex. Ka-16. The I. O./Patwari also recovered two knives from the place of occurrence and prepared Fard, Ex. Ka-17. He also prepared the site plan of the place where accused/Respondents Madan Singh and Hira Ballabh were arrested, i.e. Ex. Ka-18. The I. O. also took in his possession the torch by which Jaman Singh identified the accused and prepared Fard, i.e. Ex. Ka-19. The I. O. also took in his possession the bloodstained clothes of injured Nain Singh and Parvati Devi for which Fard Ex. Ka-20 was prepared. The I. O. also obtained the sanction for prosecution against the accused Bachi Singh by D. M. Nainital, i.e. Ex. Ka-21. During investigation, the I. O. recorded the statements of witnesses and on completing the investigation he filed the charge-sheet against the accused/Respondents Bachi Singh, Madan Singh @ Mani and Pan Singh and also against accused Heera Ballabh (who died during trial) Under Section 395/397/412 IPC and further charge-sheet against the accused Bachi Singh Under Section 25 of the Act, i.e. Ex. Ka-23.