ASHARFI Vs. STATE

JUDGEMENT

(1.) This appeal by Asharfi and Ram Dhani against their conviction and sentence of life imprisonment each for an offence under Section 396 I. P. G. lias arisen in the following circumstances. Caya Prasad Kurmi was a well-to-do man of village Xakoli, police-circle Jahanabad in the district of Fatchpur. He owned a large double-storeyed house, with a court-yard in the middle and an entrance door which at night used to be chained from the inside. On the night between the 29th and 30th January 1958, which was a moonlit one, Gaya Prasad was sleeping in the upper storey while the other inmates of the house slept in various rooms or varandahs on the ground floor. A lantern was burning in the upper storey and another in the court-yard. According to the unrebutted evidence of eye-witnesses, that night at about 11-30 p.m. a gang of about fourteen bandits, armed with pistols, daggers and other weapons, and carrying electric torches, raided the house. Some of the on scaled over the outer wall, jumped into the inner court-yard and opened the entrance door. Four of the robbers stood outside keeping guard, while the rest entered the house and startedl plundering the goods. They stripped the womenfolk of the ornaments. They beat Gaya Prasad's wife for disclosing where her valuables were concealed. Some went up to the upper storey, and tortured Gaya Prasad by slabbing him with daggers, and in-diced he was struck eight blows as a result of which he was killed on the spot. A number of shots were also fired, though luckily no one was injured with) these. The criminals kept going in arid out of the house. Gaya Prasad's son Debi Cliaran managed to slip out of the house with his electric torch, but not before a shot had been aimed at him. He raised an alarm, thereby attracting to the scene a large number of village people. These men took their stand at three points close to the house and watched the progress of the dacoity. One of them, Ram Narain, flashed his own electric torch at the robbers. Another villager set fire to a large heap of straw lying outside the house. Confronted by the large crowd of hostile villagers the miscreants bolted with their booty, which comprised! ornaments and clothes worth about Rs. 2,100/-.

(2.) Debi Cliaran lodged a report of the occurrence that very night at 2 O' clock. Since the dacoits were total strangers no mention of their names could be made, but the report asserted that in the various sources of light their features had been marked. Some description of them was also attempted, but was not of any consequence.

(3.) Investigation by the police started without delay. The appellant Asharfi, who belongs to police-circle Ghatampur, district Kanpur, was arrested on the 3rd March 1958. He was escorted to the District Jail at Kanpur, where his test identification, along with that of another suspect, was held on the 3rd April by Mr. Nuzhat Ali, first class Magistrate. Twenty undertrials were mixed with the two suspects. In what he thought were distinctive marks likely to affect identification, the Magistrate pasted five slips of paper on Asharfi's face, and a similar number on the faces of ten men in the parade. Asharfi objected that he had been shown to the witnesses at the police station. Out of the twelve witnesses called he was correctly pointed out by seven, viz., Debi Charan, Mata Prasad, Ram Sarup, Sukh Lal, Sheo Prasad, Bhullo and Aziz, Debi Charan having been an inmate of the house and the rest having seen the dacoits from vantage points outside it. Sukh Lal made one mistake but the others none. The appellant Ram Dhani, who hails from village Sikandarpur, police-circle Chandpur in district Fatehpur, was arrested on the 4th July, 1958. He was taken to the District Jail at Fatehpur where on the 24th July his test identification, along with that of three other suspects, was conducted by Mr. A.B. Sharma, First Class Magistrate. Ha included forty undertrials in the parade. He thought! it necessary to conceal various marks of Ram. Dhani with eleven slips of paper, and treated ten undertrials similarly. Ram Dhani objected both that the witnesses knew him from before and that earlier he had been shown to them by the police. Out of the nine witnesses who appeared at the parade he was picked out by six, viz., Ram Adhar, Mata Prasad, Ram Narain, Ram Sarup, Sheo Prasad and Aziz, all of whom had stationed themselves outside the house during the commission of the crime. Sheo Prasad was 75 per cent, correct and the rest 100 per cent, correct. Both the Magistrates had taken necessary precautions and prepared memos of the proceedings in Form 34 (Part IX, No. 65) prescribed by the High Court General Rules (Criminal). As a result of the test identification Asharfi and Ram Dhani were prosecuted. It may be noted that no stolen property or illicit arms were recovered from either of them.