SHITLA Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS appeal and the connected Appeals Nos. 456 of 1969 and 558 of 1971 arise out of sessions trials Nos. 57 and 81 of 1968 which were disposed of by the Temporary Civil and Sessions Judge, Mirzapur by a common judgment dated 23 -1 -1969. He convicted the four accused persons for an offence Under Section 396 IPC and sentenced them each to imprisonment for life. They have, therefore, come up in appeal against their conviction and sentence as aforesaid. Cr. A. No. 461 of J969 has been preferred by Shitla. Cr. A. No. 456 of 1969 by Mathura and Cr. A. No. 558 of 1971 by Shyama and Chhutuwa alias Chhote Lal. We have heard the three appeals together and we propose to deal with all of them in the same judgment.

(2.) THE prosecution case in brief is that a daring dacoity took place fit about 8 p.m. on the 15th March, 1967 at the house of one Bhagwan Das in village Golara, police station Kallia in the district of Mirzapur. Sri Kant (PW 1), son of Bhagwan Das, was at his shop which is located in a part of the Osara of the house itself. His mother Smt. Ram Dulari (PW 2) was sleeping with her sick son, namely, Shanker Lal in the Osara towards south. Sri Kant heard a sound of firing and so came out of his shop and discovered that his father had been shot at. His mother also came out asking Sri Kant as to what was going on and the latter told her that they were beating his father (Bhagwan Das). Then both Sri Kant and his mother were assaulted with lathis. It is said that there were (sic) assailants, one armed with a pistol, one with a gun and the rest with lathis. After beating Sri Kant, his father (Bhagwan Das) and his mother (Smt. Ram Dulari) two of the dacoits entered into his house and looted and took away their property in cash. While the dacoity was being committed, Duberi, one of the dacoits who was coming from the back side of the house of Sri Kant towards the front, was shot at and seriously injured. He fell down to the south of the aforesaid house saying that they had lit their own man. Hearing this all the miscreants collected there and ran away with the looted property and the injured dacoit towards the pokhra to the south of the complainant's house. Hearing the hue and cry of Sri Kant and other members of his family as also the sound of firing a number of persons of the village such as Shobhnath (PW 3), Rafi Ahmad (PW 4), Parbhu (PW 15), Jhagru (PW 16) and Kailash etc. arrived and witnessed the occurrence. One of them namely Kailash, was also injured by a gunshot fired by one of the fleeing dacoits. It is alleged that at that time it was moonlit night, a lantern was also burning at the door of Sri Kant's house and shop and Shobhnath and Rafi (PWs 3 and 4) had torches with them and the dacoits also carried torches and they were all flashing them here and there. In the said light the witnesses and the victims of the dacoity noticed the faces of the dacoits.

(3.) THE first information report of the incident was lodged at police station Hallia by head constable Sita Ram (PW 42) at 12 -30 a.m. in the night between the 15th and 16th March, 1967, the distance of the police station being three miles from the place of occurrence. In the report the information named Duberi, Shyama, Chhutuwa, Nand Kishore's son and two persons whose names were not known.