MAHENDAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri M.P. Singh Gaur, learned counsel for the appellants Mahender and Prempal, Sri R.K. Maurya, learned AGA for the State and perused the record. This appeal has been filed against the judgment and order dated 30.6.1981 passed by 4th Additional District and Sessions Judge, Badaun by which the appellants Mahendra, Onkar and Prempal have been convicted and sentenced under Section 395 I.P.C. read with Section 397 I.P.C. sentencing them to eight years R.I. and also convicting the appellants Puttu and Krishna under Section 395 I.P.C. and sentencing them to six years R.I.

(2.) As per office report dated 9.3.2006, it has been stated that the C.J.M. vide report dated 28.1.2006 has submitted a report that the appellant No. 2 Puttu and appellant No. 4 Onkar have died, hence in view of the said report of C.J.M., the appeal of the aforesaid two appellants stands abated. The appeal of appellant No. 3 Krishna has already been ordered to be abated vide order dated 9.4.2014 as he expired during the pendency of the appeal.

(3.) The prosecution story as has been set-out is that in the night between dated 25/26.8.1979 the complainant Budh Pal resident of village Rukampur, P.S. Dataganj, district Budaun alongwith his father Raghubar, his uncle Khem Karan and his cousin Chatter Pal was sleeping in his house and the female inmates of the house were also sleeping there. A lantern was burning in the Khaprail and there were no door shutters at the sadar darwaza of the complainant. Just after mid-night 8 or 10 bandits armed with guns and lathis including the five accused entered the house of the complainant and they surrounded the complainant Budh Pal and his uncle. The accused Mahendra who was armed with a gun put the barrel of the gun at the chest of Khem Karan. Khem Karan tried to snatch the gun and thereon Onkar accused who was also armed with a gun fired one shot from his gun and the pellets of the fire hit Khem Karan and Chatter Pal who was also sleeping on the charpai of Khem Karan. The accused Krishna and Puttu who were armed with lathis asked for the articles from the complainant after using the lathis. Raghubar and the female inmates of the house after getting an opportunity, ran outside the house and they raised the cry in the village and after hearing the noise and sound of fire from the gun the village people Hira Lal, Thakuri, Chimman, Bhoop, Sawanti, Ram Lal, Janki, Ram Charan. Net Ram and the complainant's cousin Harnam carrying the lathis and the torches, reached the spot. The accused Prem Pal who was armed with a gun remained standing at the Sadar Darwaza and fired the shots from his gun. Four or five bandits looted the property from the house of the complainant. The dacoits ran towards the jungle carrying the looted property on the arrival of the village people and the witnesses. The faces of the accused and the other bandits were clearly recognized in the light emitted from the lantern and flashed from the torches and in the light of the moon. The bandits fired four or five shots on the spot. The complainant got the report (Ext. Ka. 1) written from Brij Lal and he lodged the same at the police station Dataganj on 26.8.1978 at 10.12 a.m. Rama Shanker (P.W. 7) who was posted as Head Moharrir at the police station Dataganj on 26.8.1978, prepared the F.I.R. (Ext. Ka. 2) on the basis of the written report (Ext. Ka. 1). He made an entry in the G.D. the same time at serial No. 14 a copy of which (Ext. Ka. 3) is on the record. He saw the injuries of Khem Karan, Budh Pal and Chatter Pal and constable Mahavir Singh prepared the Chitti Mazroobi for the examination of these persons at P.H.C. Dataganj. These Chitti Mazroobi are (Exts. Ka. 4 to Ka. 6) respectively. The injuries on the person of Budh Pal and Chatter Pal were examined by Dr. C.P. Mehrotra at the P.H.C. Dataganj. He gave the injury reports (Ext. Ka. 12 and ka. 13) respectively. Khem Karan was referred to the district hospital Budaun by Dr. C.P. Mehdi Ratta and on 26.8.1978 at 2.0 p.m. Dr. M.V. Jaal (P.W. 9) examined the injuries on the person of Khem Karam and gave the injury report (Ext. Ka. 11). S.J. Moin Uddin (P.W. 8) who was present at the police station Dataganj on 26.8.1978 when the case was registered was entrusted with the investigation of the case. He recorded the statements of the injured persons and other witnesses and H.C. etc. at the police station and thereafter reached the spot prepared the site plan (Ext. Ka. 8). He took blood stained and unstained 'Ban' of the charpai on which Budh Pal and Chatter Pal were allegedly sleeping at the time of the occurrence and he found two empty cartridges on the spot and took them into his possession and prepared the memo (Ext. Ka. 9) in this respect. He saw the lantern which was allegedly burning on the spot at the time of the alleged occurrence and saw the torches of the witnesses and prepared the memo (Ext. Ka. 10) in this respect. He searched for the accused, but they were not traceable. Subsequently the investigation of the case was done by Sri Om Prakash Tyagi S.O. Dataganj (P.W. 11). He gave the charge-sheet (Ext. Ka. 7) against the accused.