MALKHAN Vs. STATE OF U P

JUDGEMENT

(1.) All these five criminal appeals arise out of the judgment and order dated 13-6-1980 passed by Sri R.C. Chaturvedi the then III Addl. Sessions Judge, Mathura in Sessions Trial No. 313 of 1979. This being so. they are being decided by this common judgment. In Criminal Appeal No. 1479 of 1980 the appellant is Malkhan, Raj Pal is the appellant in Criminal Appeal No. 1494 of 1980, Vijai Singh and Khajan are the appellants in Criminal Appeal No. 1495 of 1980, Bachchan is the appellant in Criminal Appeal No. 1499 of 1980 and Choba is the appellant in Criminal Applicant No. 2072 of 1980. All of them have been convicted under Section 396. IPC and sentenced to life imprisonment by the impugned judgment.

(2.) The incident occurred in between the night of 29/30-6-1979 at about mid-night in village Bern alias Berua within P.S. Sahpau, District Mathura. An armed dacoity was committed at the house of Maharaj Singh P.W. 1 in which a girl Mamta aged about 12 years was murdered and Maharaj Singh P.W. 1 himself. Maharaj Singh's wife Laxmi Devi and Vijay Kumar Son of Ram Gopal were injured. The FIR was lodged by Maharaj Singh (P.W. 1) at the concerned police station on 30-6-1979 at 8 A.M. without naming anybody. The distance of the police station from the place of occurrence was 5 miles.

(3.) The number of bandits was said to be 10 or 11. The accused appellants came to light during the course of investigation and were put up for identification. The brief facts are that in between the fateful night, Maharaj Singh P.W. 1 and his family members were asleep in the house. A lantern was glowing in the Verandah. S.B.B.L. gun and the cartridges were on the cot of Maharaj Singh below his bedding. Suddenly, a lathi blow was dealt on his hand. As a result, he woke up and sat on the cot. He noticed two persons by the side of his bed with lathis. When he tried to take out his gun, one of the miscreants picked it up as also the case of cartridges. Somehow he opened the window and rushed outside the house. Another bandit was standing guard on the window outside and he gave him a lathi blow. He rushed towards the village Abadi raising shouts Several villagers appeared on the scene including Shree Chandra P.W. 2, Vijal Kumar and Har Narayan with lathis and torches. Shree Chandra set fire to the heap of Karab kept outside Maharaj Singh's house Illuminating the entire area. The dacolts fired several rounds and 3-4 stood guard on the door. One of them stood guard at the house top and the rest engaged themselves in plundering the house, moving around, coming in and going out the house. The villagers who had licensed guns also fired some rounds from their respective houses to create a scare amongst the dacoits. For about half an hour, the house of Maharaj Singh was ransacked whereafter the dacoits left with the booty. They were carrying country made pistols. Lathis and dandas and also took away the gun of Maharaj Singh. They were putting on shirts and trousers and in all they had fired 8 or 10 rounds. After the departure of the dacoits, Maharaj Singh went inside the house and learnt that the ladies had been assaulted during the commission of dacoity and his niece Km. Mamta aged about 12-13 years had been shot dead. The FIR also stated that the miscreants had been seen in the light of the torches and burning Karab. After the departure of the dacoits within 10-15 minutes, two police constables, who were on patrol duty, appeared on the scene and some of the villagers went in search of the dacoits, but no trace was found. Their footsteps were noticed upto Parsoura Ka Bamba. The gun of Maharaj Singh taken away by the dacoits bore number 12493 S.B.B.L. Belgium. The bandits had taken away 26 cartridges also. On the lodging of the FIR a case was registered.