MOTI PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) This criminal appeal arises out of the judgment and order dated 26.2.1983, passed by the 3rd Additional Session Judge, Gorakhpur in S.T. No. 174 of 1981, convicting and sentencing the appellant to imprisonment for life under Sec. 396 I.P.C. The other two accused persons namely Sudama Prasad and Jai Shri Prasad were done to death by villagers on spot, however remaining 8-9 unknown co-accused persons were never traced out.

(2.) The prosecution case was that in the night of 3/4 July 1979 at about 1 A.M. 10-12 dacoits armed with lathi, Farsa country made pistol, hand grenades etc. along with torches entered in to the village Kurmahi and started to commit dacoity in the houses of Bhikha Kurmi, his neighbors Ram Adhar Kurmi and Mitthu Kurmi by causing assaults to their family members. In the meantime, Bhikha Kurmi ran raising alarm by jumping over the southern boundary wall of his house but one of the dacoits hurled hand grenade on him, which hit him causing head injury, resultantly Bhikha succumbed to the injuries sustained. It is also alleged that Fagoo, Moti Chand, Hari Shanker, Haribansh s/o Deodutt Kurmi, Haribansh s/o Jatan Kurmi, Hari Narain, Swami Nath, Ram Bharose, Parmeshwar, Chhedi, Palakdhari, Bhagirathi, Agnu, Rama Kant, Rajendra, Mahangu Hasan, Ashiq, Lalji, Ram Awadh, Rasool and many other persons of the village with lathi dandas came running flashing their torches and surrounded the houses of Bhikha, Mitthu and Ram Adhar and gave lalkara to the dacoits after flashing their torches. Fagoo, Rajendra Gomal had set fire at the heaps of the leaves of sugarcane, which was kept outside the village. Seeing this the dacoits became afraid and tried to run away but the villagers strongly resisted, out of which two dacoits namely Sudama Prasad son of Ram Komal Harijan and Jaishree Prasad s/o Durbal Harijan resident of Laxmipur Shiwala were done to death and the appellant-Moti Prasad was apprehended alive; that remaining dacoits along with looted articles succeeded in running away from the spot who were identified by the villagers in the light of fire from burning leaves of sugarcane. Some of them were unknown. It was also asserted that one of the dacoits hit Ram Deo with fire arm resulting injury in his belly. The description of looted articles were also given in the tahrir.

(3.) FIR of the incident was got lodged by Fagoo PW-1, who happens to be the Pradhan of the village, which was transcribed by Head Moharrir Nag Narain Singh PW-6 by preparing chick FIR and concerning G.D. The investigation of the case was entrusted to Sub Inspector A.N.Tiwari PW 3. He interrogated appellant Moti at Police Station and then reached on the spot. He recorded the statements of the witnesses. The injured persons Ram Deo, Ram Adhar, Smt Sukh Rani and Katwaru were sent for medical examination through police constables. Thereafter inquest on dead body of Bhikha was conducted. Through constable Faujdar Chaubey, his dead body after being sealed was sent for post mortem along with necessary papers. He also conducted inquest of dead bodies of miscreants Sudama and Jai Shree and sent their dead bodies too for postmortem after making all the formalities. He also made inspection of the place of occurrence and prepared site plan and collected blood stained and simple earth from the places where dead bodies were found and prepared fard. He also inspected the torches, which were in working position and prepared fards. After making all the formalities, he concluded the investigation and submitted charge sheet. A cross version FIR was also registered on behalf of father of appellant. The concerned Magistrate committed the case to the Court of Session, ultimately it was transferred to the Court of 3rd Additional Session Judge, where charge under Sec. 396 Penal Code was framed against he accused. He denied the charges and claimed to be tried.