GAJRAJ Vs. STATE OF U P

JUDGEMENT

(1.) -This appeal arises out of an order of conviction under Section 395, I.P.C. and they were consequently sentenced to undergo R. I. for seven years' by learned Sessions Judge on 16.2.1989 vide his judgment in S.T. No. 7 of 1982.

(2.) THE brief facts of the case are that on the night intervening 24/25.9.1981 in village Maholipurwa, a hamlet of village Miraghasi, Sant Lal P.W. 3 and his son Shatroghan Lal P.W. 1 were sleeping. A dacoity was committed by these three appellants along with some 14-15 unknown miscreants in his house. Dacoits were armed to the teeth with shapedged weapons and firearms. It is further alleged by the first informant Shatroghan Lal in Ext. Ka-1 that while both father and son were sleeping in two separate hutments. Incidentally a lantern was burning at their place of sleeping. THE dacoits opened fire which resulted into injuries to his father Sant Lal P.W. 3 and another person Babu Ram. THE F.I.R. of this case was got registered at Police Station Kheri on the next morning at about 9.45 a.m. After registration of the case, its investigation was taken up by P.W. 9 P. N. Saproo. He was accompanied by P.W. 6 N. S. Sainger, S. I. and other policemen. G. D. entry and check report was prepared by Head Moharir A. K. Shukla. He has not been examined. All the formalities and the papers were proved by P.W. 6 N. S. Sainger and P.W. 9 P. N. Saproo. On 26.9.1981, Ram Lakhan appellant along with another accused was arrested by P. N. Saproo, P.W. 9 in company with N. S. Sainger. THEy were arrested in the presence of two independent witnesses Chiddu and Raj Kishore Shukla at about 10 a.m. from their houses on that very day and afterwards the other accused has been acquitted by the trial court. A number of household articles including utensil and ornaments were recovered from their houses but all of the recovered articles were not put up for identification. Some of these recovered articles put up for test identification are Ext. 1 to 9. Some were identified by Shatroghan Lal, P.W. 1 and other by his wife Shanti. She has not been produced in evidence. THE identification was got conducted by Net Ram, P.W. 10.

(3.) SO far as the factum of dacoity is concerned, it cannot be doubted. It has been established beyond doubt. In the circumstances, the question that remains to be decided by this Court is as to whether these three appellants who were nominated in the F.I.R. were participants in the incident. In this regard, the statement of P.W. 1 read in its totality clearly depicts the picture that indicates that he had some grudge against these three appellants. He claimed that he had met these three accused persons for the first time at the clinic of Dr. Mishra. According to P.W. 2, P.W. 6 N. S. Sainger is brother of his father-in-law Gajraj. The statement of P.W. 2 Pooran Lal is clearly suggestive of the fact that he had some animus. Dr. Mishra had contested an election for the post of Pradhan against his own maternal uncle. His maternal uncle had lost that election. These three appellants as suggested by the defence to him had sided in the election with Dr. Mishra. Apart from it, this witness was also suggested that he had some dispute with Ram Lakhan on the operation of a tubewell. This suggestion if tested in the light of the fact that he had some animus to nominate these accused persons in the dacoity assumes importance. He, therefore, cannot be relied upon. Sant Lal, P.W. 3 is father of the P.W. 1 Shatroghan Lal. He has clearly admitted in cross-examination that after receiving injuries, he fell unconscious and was not in a position to identify the other accused persons who were tried along with these three appellants. Those identified were acquitted on the ground by the trial court that their identification by P.W. 4 and P.W. 5 was not acceptable in the light of the statement of P.W. 3 Sant Lal. If we exclude Sant Lal, P.W. 3, Babu Ram P.W. 4 and Chandrabhal P.W. 5 from consideration, we are left only with the evidence of Shatroghan Lal, P.W. 1 and Pooran Lal, P.W. 2.