PIRTHI Vs. STATE

JUDGEMENT

(1.) THE two appellants before me have been convicted under Section 395 I. P. C. and sentenced to ten years' rigorous imprisonment by a Civil and Sessions Judge, Varanasi. It was alleged that they had taken part in a dacoity committed at the houses of Nankoo (P. W. 2) and Gauri (P. W. 22) and Shyam Narain alias Samman (P, W. 4) al Umralia Bazar, police-station Chaubepur, in the district of Varanasi, on the night between 3rd and 4th October, 1961. The dacoits, said to be about 12 in number, came armed with lathis, ballams, and guns, and carried torch lights. They first tried to break open the door on the back of Nankoo's house which lay across the lane towards the north of the house of Lachman (P. VV. 24 ). Nankoo himself was asleep on the Jagat of his well whereas his wife and son were asleep in the house, tachman's wife was also asleep inside her house. There was a window in Lachman's house, towards the north, overlooking the back of the house of Nankoo through which the dacoits could be seen. It was, therefore, quite natural that Lachmari's wife should have detected the presence of the dacoits first and raised an alarm which awakened Nankoo. Nankoo looked down the lane towards the west and saw some dacoits in the light of the torch (lashed by him. Nankoo was threatened by the dacoits and raised an alarm. A man called Kamla who was coming up on the road in front of the row of houses running east to west was shot al as he tried to interfere and he fell by the side of the road. Nankoo's wife Smt. Gulabi, opened the front door facing the east and ran with her husband and son towards the north. Near the door of Gauri, a few steps further towards the north, the dacoits surrounded them and beat Nankoo and his wife and snatched a Sikari from the neck of Smt. Gulabi. In the meantime, Gauri opened his door and asked Nankoo and his wife to step in. Thereupon, the dacoits entered the house of Gauri and deprived him of Rs. 22. Shyam Narain who was also asleep outside his house further north asked his wife to open the door of the house and then went in and bolted it from inside. The dacoils then came to his bouse also and gave a push to the door and entered Shyam Narain's house in which a lantern was lit. When they wanted to take the gold car-rings of Smt. Dhakna (P. W. 3), she handed them over to the dacoits herself. She also handed over a silver kardhani to the dacoits. The dacoits also looted other ornaments from the house of Shyam Narain. After the dacoits had rushed towards the north, Mustaqeem (P. W, 5) reached there, and also Bashir (P. W. 21) who had a torch, and others who are said to have seen and chased the dacoits Bashir and Mustaqeem are said to have overtaken the dacoits after having chased them when the dacoits returned from the north and went towards the south. The dacoits are said to have turned round and hit them with their lathis.

(2.) IT appears that another dacoity had also been committed' during the same night at village Kodupur at about 11 p. m. and a first information report had been lodged at police station Chaubepur at about mid night and two police-constables, Pheku Singh and Brij Raj Singh, had been deputed to go towards Varanasi in order to inform the Flying Squad. These 1wo police constables passed Umraha Bazar about 10 or 15 minutes affer the dacoity in Umraha Bazar which was committed soon after the dacoity at Kodupur, possibly by the same Rang of dacoits, and they were informed by the villagers at Umraha Bazar about what had taken place. The two constables went in pursuit of the dacoits for about a furlong and were shot at near a culvert so that Brij Raj Singh was injured, Nankoo Singh then lodged his first information report at 2-30 a. m. at police-station Chaubepur setting out the details of the dacoity committed at Umraba Bazar. In the meantime, one Dr. Bismilla (P. W. 31), after bicyling from Umraha Bazar, sent information about the dacoi-fy at Urpraha Bazar from Sarnath outpost by telephone so that a Flying Squad started from Varanasi in a jeep. When the jeep was coming towards Umraha Bazar it met the bus which was taking the injured from. Umraha Bazar to the hospital, and the squad, was informed that the dacoits had gone towards Ashapur. The Flying squad then went towards Ashapur Bazar, and, while the jeep had stopped near Ashapur and its occupants were talking to Sri Tegh Bahadur, S. O. Adaropur (P. W. 30), and Ram Adhar Yadav S. I. , cries of 'thief 'thief were heard. When the policemen proceeded in that direction, they were told by Garbabandi constables that two persons, found going on a bicycle from east to west, had, on being challenged, left a bicycle and a handbag and run away after threatening to shoot with a pistol. After that, the Flying Squad proceeded towards Pandeypur. At a place 'called Latchungi. at about 4 a. m. , they saw three persons going in a rickshaw. When the Flying Squad stopped near the rickshaw, the three persons rushed out and ran. Two of them escaped while Pirthi appellant was captured and made baparda immediately. He was carrying a "jhola" from which a number of Articles Exts. 1 to 8 and Fxts. 10 to 12 were recovered. Pirthi appellant was taken to police station Adampur. He was lodged in the jail on the afternoon of 4. 10. 1961 and was shown to have been kept baparda throughout. He was put up for identification on 20th January, 1962, fit a test parade and was identified by Smt. Dhakna (P. W. 4) and Muslaqeem (P. W. 5) and Bashir (P. W. 21) and Lachhman (P. W. 24 ). Out of these, the learned Sessions Judge has relied upon the evidence of identification by the three witnesses other than Bashir who did not identify Pirthi appellnnl at the trial.

(3.) IT appears that Samual, appellant, resident of village Bara Gaon, police station Bagaha, from the district of Champaran, in Bihar, who was residing at May in the district of Azamgarh at'the time of the occurrence was also suspected after the arrest and interrogation of Pirthi appellant. It is alleged that he could not be found when the police looked for him. Certain items of clothing were recovered when his quarter was searched on 5. 10. 1961 in the presence of Vir Shamsher, the father of Samual. But, these were not connected with the dacoity at Umraha Bazar. This appellant surrendered in the Court of the Additional District Magistrate at Varanasi, on 30. 3. 1962, when he was taken into custody and made immediately Baparda and sent to jail. He was put for identification at a parade on 28. 4. 1962 and correctly identified by Smt. Dhakna (P. W. 3) and Gauri (P. W. 22) and Lachhman (P. W. 24) who have been relied upon by the learned Sessions Judge for convicting this appellant.