UMESH AND ANOTHER Vs. STATE OF U P

JUDGEMENT

(1.) Challenge in this appeal is to the judgement and order dated 5.8.1982, passed by II Additional Sessions Judge, Aligarh in Sessions Trial No. 221 of 1981 (State vs. Umesh and others) whereby the accused-appellants Umesh and Arjun have been convicted and sentenced to undergo five years rigorous imprisonment each under section 395 IPC.

(2.) In nutshell, prosecution case is that written report was lodged on 11.2.1980 at Police Station Sasni, District Aligarh by Sri Jai Pal Singh son of Basdeo Singh with the effect that in the intervening night of 9/10 February, 1980 dacoity was committed in his house when he and his children were sleeping in a room and in another Gher his nephew Ratendra Kumar was sleeping with his children and the lantern was lighting inside the house. It is stated that at about 2.00 a.m. he heard a noise of breaking the door leaves of his stair case and he came out with flashed torch and saw that miscreants had entered into his house. Thereafter he awakened his children and the children of his brother and came out from another door of his house and made hue and cry that the miscreants had come. Thereupon Netra Pal Singh, Jogendra Kumar, Khushal Singh, Raghu Nandan Singh, Mohan Singh gun licensee holders came out with their guns and other witnesses brought their lathis and lit fire to the heap of KARAB kept near the house of Shish Pal Singh. On seeing the light, the dacoits, who were standing on the roof, started firing and caused bullet injury to Hira Lal, Jai Chand and Mohan Singh. In reply, when the witnesses opened fired, then the dacoits ran away in the eastern side. They were about 15-16 in number and have been identified by the witnesses. On the basis of the aforesaid report, a case was registered on 11.2.1980 as Case Crime No. 57 of 1980 under sections 395/397 IPC at Police Station Sasni, District Aligarh but both the accused-appellants were charged under section 395 IPC only because neither any specific lethal weapon was recovered from the possession of the accused persons nor looted property was recovered from them.

(3.) After the evidence of the prosecution was closed, the statement of the accused was recorded under section 313 Cr.P.C., in which they denied the occurrence and stated that they have falsely been implicated in the case.