FAZRU AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) Eight accused namely appellants Fazru, Phirru, Babu, and Azmair alongwith Gulzar, Raddu, Abbas and Mukanda were tried for offences under Sec. 395 Penal Code by the III Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. A 324 of 1977. The learned sessions Judge Acquitted Gulzar, Raddu, Abbas and Mukanda, but convicted the four appellants namely Fazru, Phirru, Babu and Azmair under Sec. 395 Penal Code vide Judgment dated 23. 2. 1979 and sentenced them to seven years Rigorous Imprisonment. The appellants have therefore filed this appeal against their conviction.

(2.) The prosecution story was that on 23. 2. 1977 at about mid-night 12 or 13 miscreants entered the house of PW-1 Banwari in village Vimlana, police station Kotwali, of district Muzaffarnagar and committed dacoity armed with lathis, guns, revolvers etc. The FIR of the incident was lodged on 24.2.77 at 11.00 a. m. after covering a distance of 3 km. Five of the alleged culprits namely Fazru, Phirru, Gulzar, Raddu and Abbas who are residents of village Vimlana where the dacoity was committed were named in the FIR but Mukanda, Babu and Azmair were not named. Appellant Azmair was arrested on 16.4.1977 appellant Babu was arrested on 10.5.1977 and appellant Mukanda was also arrested on 10.5.1977. All the three afore- mentioned persons were put up for identification on 4.6.1977. The Investigating Officer investigated the case and submitted charge-sheet against all the eight accused and they were charged under Sec. 395 IPC. They pleaded not guilty and alleged false implication due to enmity and party-bandi. The prosecution examined four eye witnesses namely Banwari PW-1, Manga PW-2, Amar Singh PW-4 and Ghasita PW-6. Learned Sessions judge after considering the evidence led by prosecution, acquitted Raddu, Abbas, Gulzar and Mukanda but convicted the four appellants Fazru, Phirru, Babu and Azmair.

(3.) I have heard the learned counsel for the appellant Sri Rajesh Kumar Srivastava and the learned A. G. A. Sri Mahesh Chand Joshi and have gone through the record carefully. So far as the factum of dacoity is concerned there is overwhelming evidence to prove the same and therefore the finding of the trial court regarding the factum of dacoity is correct.