ANWAR Vs. STATE OF U P

JUDGEMENT

(1.) Anwar and Ghaseeta have come up in appeal against their conviction under section 395 I.P.C. and sentence of 5 years R I. each recorded by Shri B.K. Sharma 4th Additional Sessions Judge, Bijnor by his judgment and order dated 25.1.1977 in Sessions Trial No. 19 of 1979.

(2.) The case of the prosecution is that in the night intervening between 9/10.6.1975 at about 12.30 a dacoity was committed at the house of Hanif complainant in village Mohammed Alipur, P.S Afzalgarh District Bijnor by 10-15 persons and the dacoits succeeding in taking away looted property consisting of ornaments and watches. The case of the prosecution is that the complainant Hanif was asleep in the court-yard of his house alongwith Hamid P.W. 2 and Akhtar P.W. 4. Upon the hue and cry of the women-folk of the house, the complainant Hanif was awakened at about 12 30 A.M. and he noticed one dacoit on the roof having gun in his hand. There were in all 10-15 dacoits, some were inside the house of the complainant and some were outside the house. The complainant some-how managed to sneak out of his house and raised the alarm whereupon, Sharif Ahmad, Qifayat etc. positioned themselves on the southern side of the house while Haji Tufail, Khalil, Ameera P.W. 5, Akhtar P.W. 4, and Hamid P.W. 2 collected on the northern side of the house of the complainant. Amongst them, Haji Tufail, Ameera and Akbar had torches with them and -they flashed their torches whereupon dacoits, came out of the house and they were recognised in the light of the torches and. also in the light of Thatch (Chapar) which was set on fire by Khalil Khan. The thatch was on the eastern side of the house of the complainant Dacoits ran towards the south alongwith the looted property consisting of watches and ornaments. One of the dacoits opened fire, which caused injuries to Sharif, Akhtar and Jameel. However, Hanif complainant, Ameera Smt. Hamid caught hold of one of the dacoits on the spot after giving beating to him The remaining dacoits succeeded in running away from the place of occurrence. The apprehended dacoit gave out his name as Hamid and stated that he was procured for dacoits by one Nandan Shah. After the occurrence, the complainant alongwith the injured dacoit Hamid and other persons of his village left for the police station but on way to police station, the apprehended dacoit breathed his last. On reaching the police station, the complainant Hanif dictated an oral report of the occurrence to the Head constable Laxman Singh at 2.30 A.M. The Head constable prepared a chik report and also registered a case u/s 395 I.P.C. in the General Diary of the Police Station against 10 to 15 unknown dacoits. It was also dictated by Hanif in his report that the apprehended dacoit had given out his name as Hamid and he had confessed before them that he longwith others had been procured for dacoity by one Nandan Shah. The injured person's Zameer; Sharif Ahmad and Akbar were sent to the dispensary where their injuries were examined.Dr. R.B. Saxena Medical Officer of Government Hospital Sherkoot examined Zameer Ahmad at 6.45 A.M. on 10-6-1975. His injury report is Ex. Ka 10.

(3.) Dr. Saxena also medically examined Akhtar at 7.30 A.M. and found the following injury on his person. Lacerated wound 5 cm x 1.5 Cm x bone deep on top of head 13 cm above right ear.