BRIJENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) MR. Brahma Singh, the then III Additional Sessions Judge, Etawah, by his order dated 29-1-1979 convicted the five appellants of this case under section 396, IPC and sentenced each one of them to 10 years' R. I. It is against this order that the present appeal has been filed.

(2.) IN the night between 12/13-1-1979 at about mid-night Bhagwan Das complainant and members of his family were sleeping inside their house in village Nagla Chain Sukh, which is a hamlet of village Briya and lies within the police station Auraiya, district Etawah. One of the sons of the complainant, namely Ravindra Nath was sleeping in the Atari on the roof of the house. There was lantern lighted in the house. A Gobar Gas plant had been fixed at the house of the complainant's neighbour namely Shree Ram and a bulb was lighted there. The complainant heard some noise and got up. He found some dacoits throwing torch light on the roof of his house, Simultaneously he heard cries of Ravindra Nath from the roof. He was crying for help. The miscreants started firing. Ram Das son of the complainant and the complainant himself tried to go up the stairs but there was. indiscriminate firing by the miscreants and thus they were prevented from going up. They, however, raised cries from the place they were at and the villagers-Rajendra, Ram Babu, Sita Ram, Shyam Lal, Ram Shanker, Ram Bux, Hira Lal, Soney Lal, Sri Ram, Din Dayal, Nam Sukh, Sobran, Ram Singh and others were attracted. They all came armed with lathis and lighting their torches. Bundles of Karab were lying infront of the house of Shri Ram, just in the neighbourhood of the house of the complainant. Ram Das put fire to the same and thus created sufficient light. When the pressure of the villagers became strong, the dacoits fled away west-ward after looting about 9 houses in the neighbour-hood. It may also be mentioned here that Balwan had put fire to another Karab load which had been stacked near his house and that had also generated sufficient light. The entire dacoity took about one hour to complete. There were 10 to 12 dacoits who were variously armed with guns, lathis, pistols, kantas, spears, Kulharis etc. Some of them were recognized by the complainant and other witnesses in the light on the spot. Amongst them, Brijendra, Ram Autar, Shri Ram and Radhey Shyam were named in the FIR. Nothing was looted from the house of the complainant. The neighbouring houses of Rajendra, Shri Ram, Sita Ram, Shyam Lal, Ram Shanker, Ram Babu and Daya Ram were looted. As a result of the firing by the dacoits, Ravindra Nath and Rajendra sustained gun shot injuries. Smt. Sita Shree, wife of Sita Ram received a lathi injury. Ravindra Nath's condition was precarious. Bhagwan Das got the FIR scribed by Balwan in the village and alongwith it he proceeded to the police station asking the villagers to bring Ravindra Nath and other injured in a bullock cart to the police station. At 8.30 A.M. on 13-1-1979 FIR Ext. ka 1 was lodged in the Thana and the case was registered. Mr. Avadhesh Kumar Upadhyaya, S.H.O. conducted the investigation. Meanwhile, the bullock cart carrying the dead-body of Ravindra Nath and other injured arrived at the police station Auraiya. Ravindra Nath died in the way and the case was converted into one under section 396, IPC at 9.15 A.M., Mr. Upadhyaya held the inquest and sent the dead-body to mortuary for post-mortem examination. He then recorded the statements of the prosecution witnesses and prepared a site plan. He took blood-stained and simple earth from the place of occurrence and ashes from two places vide Exts. 9 and 10. Torches of Parmal, Munshi Lal, Shri Ram and Soney Lal were taken into custody and were returned back after preparing the memos Ext. ka 24 to ka 27. 8 pellets were recovered from the scene of occurrence, vide Ext. 7.

(3.) SMT.Sita Shree, wife of Sita Ram, had one contusion 9 cm. x 1 cm. on the top of the right shoulder and the Doctor was of the opinion that it was caused by a blunt weapon. It was simple in nature and was half a day old.