RAM KHELAWAN Vs. STATE O

JUDGEMENT

(1.) N. K. Mehrotra, J. This is an appeal against the judgment and order dated 20. 7. 1987 passed by the IX Assistant Sessions Judge, Lucknow in Sessions Trial No. 534 of 1984, State v. Ram Khelawan and others, convicting the accused-persons under section 395/397 IPC and sentencing them to undergo five years' R. I. under section 395 I. P. C. and a fine of Rs. 500 each appellant and seven years R. I. under section 397 I. P. C.

(2.) THE case of the prosecution is that on the night in between 29/30. 11. 1983 the complainant Ram Khelawan was sleeping in his house and his daughter Nand Rani and wife were sleeping under the 'chhapper' and there was lantern light. His son Fakir Chandra and his wife were sleeping inside the room. It was at about 1. 00 a. m. few dacoits jumped into the courtyard after crossing the wall and started committing robbery of house-hold goods from the kothari and they also started taking the jewelry from the person of his daughter. On his cry, the villagers came there with lathi, gun and torches and exhorted the dacoits. THE dacoits made fires and caused injuries to the wife of the complainant, Nand Rani, the daughter of the complainant, Ram Charan, Raja Ram, Deota Deen. and Bhawani. THE dacoits were identified in the light of the torches and lantern. THE complainant has given the details of the jewelry and cloths, which were taken away by the dacoits from his house. THE F. I. R. was lodged at the police station on the next day in the morning at 6. 30 a. m. THE investigation was entrusted to Vinod Kumar Sharma, S. I. who after completing the investigation, submitted the charge-sheet.

(3.) THE learned trial court after considering the evidence on record held that accused Ram Khelawan and Ram Phali have been correctly identified by P. W. I Ram Khelawan. P. W. 2, Shiv Singh had identified only accused Ram Phali. THE prosecution witnesses Jangali, P. W. 3 had identified accused Ram Khelawan, Ghisa Ram and Ram Das. THE prosecution witness Fakir Chandra identified Ram Khelawan and Ghisa Ram but he has committed two mistakes, therefore, his statement is of no evidentiary value. He has also held that accused Ram Khelawan has been correctly identified by witness Jangali and Lalloo. He has held that accused Ram Khelawan has been identified by witness Ram Khelawan but because of two mistakes in his identification parade, his statement is of no evidentiary value against Ram Phali. Ram Phali has been identified by witness Sheo Singh but Sheo Singh has become hostile in the court. He has further held that the witness Jangali had correctly identified Ram Phali and there are two witnesses Maiku and Jangali who have identified accused Ram Phali. THE learned trial court has further held that the evidence of identification against the other accused is not worth reliable. After recording this finding on the evidence of identification, the learned trial court has held two accused Ram Khelawan and Ram Phali guilty under section 395/397 I PC and has sentenced them to five years R. I. and a fine of Rs. 500/- each under section 395 IPC and seven years R. I. under section 397 IPC. THE learned trial court has acquitted the other accused of the charges levelled against them.