PRITAM SINGH Vs. STATE

JUDGEMENT

(1.) This criminal appeal, under Sec. 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Code of Criminal Procedure), has been preferred by the Appellant against the judgment and order dated 26 -04 -1984 passed by IInd Addl. Sessions Judge, Nainital in Sessions Trial No. 42 of 1983, State v/s. Ram Gopal @ Gopal Singh and Pritam Singh, whereby the learned II Additional Sessions Judge convicted the Appellant under Sec. 395 I.P.C. and has awarded a sentence for five years rigorous imprisonment.

(2.) In brief, the prosecution story is that on the intervening night of 12/13 -11 -1982, the complainant, his father Sri Parmanand and younger brother Madan Lal were sleeping in the house along with their families. A lantern was burning in the verandah of the house and the door in the western boundary was lying opened. The parents of the complainant Krishan Kumar, his sister Darshan Rani and Pushpa Rani W/o Madan Lal were sleeping in the verandahs of the houses. At about 11:00 p.m., some persons removed the wristwatch from the wrist of the Sri Parmanand - father of the complainant and thereafter he at once got up and raised an alarm. The complainant, who was sleeping in the kitchen, also got up on hearing the alarm and saw through the grill of the window of the kitchen that about 8 to 10 dacoits were in the verandah of the house. Out of them, two dacoits who were armed with guns went on the roof of the house through the stairs. The others, got removed the jewelry worn by the mother and sister of the complainant and wife of Madan Lal under threat. After that, the dacoits broke the door of the room in which Madan Lal was sleeping and entered in that room. The dacoits caught Madan Lal and asked him about the whereabouts of valuables. Madan Lal raised an alarm and when he started running, one dacoit made a fire shot hitting Madan Lal and he fell down. On it, the complainant Krishan Kumar also made fire shots from his licenced gun. The dacoits started to loot the property belonging to complainant after breaking open the almirah and boxes. The ladies of the house somehow managed to run out of the house and they raised alarm in the village. Thereafter, Shanoo Ram came there and made fire shots by his licensed gun. The dacoits were making fire shots and calling loudly

(3.) After the incident, the injured Madan Lal was medically examined by the Dr. Ashutosh Mishra on 13 -11 -1982 at 12.50 A.M. in Combine Hospital, Jaspur and his injury report was marked as Ex.Ka -1. Krishna Kumar, the another injured person was also medically examined at the same hospital on 13 -11 -1982 at 12:30 A.M. and his injury report is marked as Ex.Ka -2. Thereafter, the F.I.R. Ex.Ka -3 was lodged by the complainant Krishna Kumar at Police Station, Jaspur at 1:45 A.M. on 13 -11 -1982. After that, the Investigation Officer inspected the spot, recorded the statements of witnesses and prepared the site plan. The Investigation Officer has also prepared a Fard for taking the Lantern in his custody and Supurdginama and that Fard is Ex.Ka -4. He has also prepared a Fard for taking the blood stained Baniyan of Krishan Kumar which was marked as Ex. Ka -5. He has also prepared a Fard for taking out the four doors in his possession and given his Supurdgi and the Fard was marked as Ex.Ka -6. The I.O. has also prepared a Fard for taking out 'Paraat and Kanaster' having pallet holes and D.B.B.L. Gun and Supurdginama and that have been marked as Ex.Ka -7. The memo of Torch, Khokas, Pallets, Tiklis and Bullets have been marked as Ex.Ka -8 by the I.O. for preparing the Fard and the memo of Ash has been marked as Ex.Ka -9. The site plan inspected by the I.O. has been marked as Ex.Ka -10. The I.O. also prepared a Fard relating to taking out of the blood stained clothes of injured Madan Lal and that have been marked as Ex.Ka -11. He has also inspected the broken doors and has prepared the Fard and Supurdginama, Ex.Ka -12. During the investigation, he has recorded the statement of the witnesses and after investigation, he submitted charge -sheet i.e. Ex.Ka -13 against Pritam Singh accused and against Ram Gopal and that charge -sheet has been marked as Ex.Ka -14, The Munsif Magistrate, Kashipur after completing the process under Sec. 207 Code of Criminal Procedure. has committed the case to the court of Sessions. The learned II Additional Sessions Judge has framed the charge under Sec. 395/397 of I.P.C. against the present application Pritam Singh and other accused Ram Gopal. He pleaded not guilty and claimed to be tried, therefore, prosecution was directed to adduce its evidence.