SRI KISHUN Vs. STATE OF U P

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and order dated 19.4.1982 passed by IV Additional Sessions Judge, Ballia in Sessions Trial No. 85 of 1981 whereby the appellants (1) Srikishun (2) Ram Awadh (3) Uma (4) Nagina (5) Gorakh and (6) Shekhan were convicted under Section 395 I.P.C. and each of them were sentenced to undergo R.I. for five years. During Appeal, appellant No. 5 Gorakh and appellant No. 6 Shekhan died and Appeal in respect of them stands abated.

(2.) The incident took place on 9.10.1980 at about 11:00 p.m. in Village Malipur, P.S. Ubhaon, District Ballia. The F.I.R. was lodged on 10.10.1980 at 4:00 a.m.

(3.) The prosecution story, briefly stated, was that there was a litigation between appellant Gorakh and P.W. Raj Kishore in which Faujdar (deceased) had appeared as a witness for Raj Kishore and the Suit was decreed in favour of Raj Kishore. Since then, Gorakh was annoyed with Raj Kishore and Faujdar and threatened them several times. Other appellants are the close relatives and family members of Gorakh. Faujdar was sleeping inside his house. His son Ramakant, daughters Kamlawati and Indrawati were sleeping in the adjoining room where a lantern was lit. His wife Smt. Shitladei was sleeping in the north west room and his relation was sleeping in the Sahan. At about 11:00 p.m., 14 - 15 dacoits armed with gun, spear, gandasa, lathi and country made pistol entered the house of Faujdar Yadav by removing the main door. Ram Bishun lifted the baby of Kamlawati and threatened the inmates present there to disclose where they had kept Rs. 1800/- being the sale proceeds of bullock, failing which he would kill the baby by throwing on the ground. In the meantime, accused Uma disclosed that money had been found. Ram Bishun put the baby on the ground. Dacoits beat the ladies by danda, fists and kicks and came out of the house along with two boxes, which were opened. The dacoits made good their escape along with the booty i.e. Rs. 1800/-, ornaments, clothes, etc.. Ramakant lighted his torch and saw accused Gorakh, Ram Awadh and Sri Kishun standing at the main door of his house. He also saw that one of the unknown dacoits shot Faujdar by gun. Faujdar fell down and died. The whole episode lasted for about one hour. Ramakant wrote F.I.R., which is exhibit ka-6 and lodged F.I.R. at the police station at 4:00 a.m. The injured were sent for medical examination. Station Officer S.P. Rawat performed inquest on the body of deceased Faujdar, prepared site plan, interrogated the witnesses and his successor S.I. Gajendra Nath Singh submitted charge sheet against the accused.