BHUWAN BAIRAGI Vs. STATE OF U.P.

JUDGEMENT

(1.) This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 21.06.2000, passed by Learned Ist Additional Sessions Judge, Nainital, in Sessions Trial No. 242 of 1997, whereby said court has convicted the accused/appellant no.1 Bhuwan Bairagi under section 394 of I.P.C., and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 5,000/-. The trial court has convicted the accused/appellant no.2 Chitranjan Ghosh under section 411 of I.P.C., and sentenced him to rigorous imprisonment for a period of two years.

(2.) Heard learned counsel for the parties, and perused the lower court record.

(3.) Prosecution story, in brief, is that in the intervening night of 20 th and 21 st of November, 1992, at about 00.30 hours, PW5 Harihar Sharma, an employee of Mahendra Pal Singh (PW1) was sleeping in "Bajri Company Premises". On said date and time accused Bhuwan Bairagi alongwith coaccused Vishnu Vishwas (since deceased during trial) and two others trespassed in the house of Mahendra Pal Singh by breaking open the door. The miscreants thereafter assaulted PW5 Harihar Sharma who was sleeping there with butt of a country made pistol. After injuring the aforesaid witness, the miscreants robbed belongings of Mahendra Pal Singh by opening the Almirah. On hearing the noise PW6 Shyam Lal, a watch man raised alarm where after the miscreants escaped with booty. The miscreants were identified by PW5 Harihar Sharma (injured witness) in the electric light. PW6 Shyam Lal, watch man, while accused were recuring identified with the light of the torch. The written report (Ex-A3) was lodged by PW5 Harihar Sharma at Police Station Lalkuan on 21.11.1992, which was registered as Crime No. 332 of 1992, at 1.30 am. (i.e. within one hour of the incident). PW1 Mahendra Pal Singh, on his return from Delhi gave details of the properties found missing from his house on 27.11.1992, to the police. The items included VCR (J1) made in Japan, detachable stereo speaker make Philips, four pairs of gold ear rings, three gold rings, one pair silver anklets, a pair of foot finger rings, one ladies HMT watch, one gents watch, one torch with three cells, one jacket and National Saving Certificates and ten clothes. Meanwhile, PW4 Dr.K.K.Joshi, medically examined Harihar Sharma (PW5) on 21.11.1992, and recorded three injuries. The same were recorded in injury report (Ex-A2). During investigation, police arrested two accused Bhuwan Bairagi and Vishnu Vishwas. After making enquiry regarding property looted, during investigation police recovered some of the looted articles from accused/appellant no. 2 Chitranjan Ghosh. The property recovered was identified by PW1 Mahendra Pal Singh and his wife PW2 Kavita Panchrath. On completion of investigation, charge sheet was filed against accused Bhuwan Bairagi, Vishnu Vishwas, Tarun Sarkar and Chitranjan Ghosh for their trial in respect of offences punishable under section 395, 397 and 411 of I.P.C., showing three others as absconding accused.