SUKHBIR AND ORS. Vs. STATE OF U.P.

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment and order dated 22.7..1982 passed by the Vth Addl. Sessions Judge Bulandshahar in Sessions Trial No.637 of 1980, (State versus Sukhbir & others) whereby the appellants have been convicted and sentenced under section 302/34 IPC to undergo life imprisonment. During the pendency of the appeal, the appellants no.1 & 4 namely Sukhbir and Meghraj have died as per office report dated 6.10.2012 which has been confirmed by the report sent by Chief Judicial Magistrate Bulandshahar hence the appeal against the appellants no.1 & 3 already stood dismissed as abated vide order 19.1.2015 passed by another Bench of this Court.

(2.) Heard Sri Manish Tiwary, learned counsel for the appellant no.2 assisted by Sri Imran Ibrahim and Sri A.K.Awasthi and M.C.Singh, learned counsel appearing on behalf of the appellant no.3 Madan Pal and Sri Rajeev Gupta, learned AGA appearing on behalf of the State have been taken through the record.

(3.) The emanation of the facts giving rise to the present appeal in a short conspectus is that an F.I.R. was lodged by Sukhvir appellant no.1 (now deceased) on 24.2.1979 at about 11.00 a.m. against Vijendra (deceased) and Sukkan (P.W.2) and two unknown persons vide case Crime No. 51 of 1979 under sections 457/380 IPC at Police Station Narsena District Bulandshahar containing the allegations that in the night of 24.2.1979, the complainant Sukhvir (appellant no.1) was sleeping in his house along with his wife Malla Devi (appellant no.2) and children. At about 11.00 p.m. Sukhvir (appellant no.1) woke up on account of some noise and he found that the door of his Kotha was opened. The appellant no.1 raised alarm uttering the word "Chor Chor" and on his shouting and shrill a number of persons namely Meghraj Singh (appellant no.4 deceased), Sipattar Singh, Latoor, Buddha,Kali Charan living contiguous to his house and other persons of the locality came at the house of the appellant no.1 .Three thieves fled away from the scene of occurrence in a very swift way coming down from the Kotha. One thief was caught hold by the appellant no.2 (Malla Devi) in the courtyard of the house. The thief who was caught hold by the appellant no.2 (Smt. Malla Devi) was given sound beating by a number of persons including the appellant no.1. He fell down on the ground and succumbed to injuries. One thief recognized in the light of the torch was Sukkan s/o Bangali hailing to the same village. He had also sustained injuries while encircling the thieves. He left the place of occurrence even after sustaining the injuries. One thief was given severe beating as a consequence whereof he succumbed to injuries after some time. On the basis of written report given by the appellant no.1, a chick report (Ex.Ka.11) was prepared by the constable/clerk Om Prakash against deceased and Sukkan (P.W.1) son of Bengali resident of village Ginaura Nagli vide Case Crime No.51 of 1979 under sections 457/380 IPC Police Station Narsena District Bulandshahar.