DESH RAJ AND ANR. Vs. THE STATE

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 24 -04 -1985 and 6 -05 -1985 passed by learned II Additional Sessions Judge, Nainital whereby the learned II Additional Sessions Judge has acquitted the accused Swam Singh, Ganeshi, and Chhinder Singh under Section 395, 397 I.P.C.; accused Lakhvinder Singh was acquitted under Section 395. 397 and 412 I.P.C. and the Appellants Narendra Singh, Sukhvender Singh, Deshraj and Mahender Kaurwere convicted under Section 412 I.P.C. and sentenced for 5 years R.I. to each of them. Appellant Narender Singh was also convicted under Section 25 Arms Act and sentenced to one year R.I. Both the sentences were directed to run concurrently. However, the Appellant Narender Singh was acquitted from the offence punishable under Section 395 and 397, I.P.C. The order of the sentence was passed against Narender Singh and Mahendra Kaur on 6 -05 -1985, as they were not present in the court on 24 -04 -1985.

(2.) BOTH these appeals have been preferred against the same judgment and order and against the same incident. Hence, both these appeals are being decided by this common judgment and order.

(3.) IN brief the prosecution story is this that the complainant Jagmer Singh Verma was a Secretary in "Mandi Samiti" Kashipur, and he was living at Mohalla Maheshpura Kashipur, in a rented house. In the night on 16 -10 -1979 at about 2A.M., five miscreants, four out of them were armed with guns and one was armed with the pistol and sabbal, entered into his room. He got him up after hearing the sound of miscreants. They all rounded up the complainant and his other family members. The complainant saw that one of the miscreants was standing pointing his gun on his youngest small child. He demanded the key of the safe from the complainant and asked him to face consequences, if he would raise alarm. Meanwhile, one of the miscreants snatched out the golden chain out of the neck of the wife of the complainant and removed the ear -rings (Kundal) from her ears. The miscreants took the complainant to the adjacent room where the safe was lying along with the bunch of the keys. In that room Tripal Singh cousin brother -in -law of the complainant was sleeping. After hearing the noise, he got up. The miscreants got opened the safe from the complainant and looted ornaments, cash and clothes belonging to the complainant. They also looted one Transistor, one wristwatch and Rs. 600/ - out of the pocket of the pant of the Tripal Singh hanging in that room on a peg. The miscreants went back after bolting the doors of the house from out side. They also took the entire looted property with them. After that the complainant gave a call to his neighbour Sri Prithvi Singh who opened the door of the house of the complainant. The complainant told the entire incident to him. In the electric light, which was there in the house of the complainant, the complainant and his other family members had seen the miscreants at the time of the alleged incident. The complainant then lodged the report at Police Station on 16 -10 -1979 at 3.30 A.M.