KARHE KHAN AND ANOTHER (IN JAIL) Vs. STATE

JUDGEMENT

(1.) THE facts bearing on these two connected appeals are shortly as follows.

(2.) IN the night between 2nd and 3rd December, 1961, there was a dacoity at the house of one Dwarka Prasad of village Sarora, P.S. Jahanabad district Pilibhit. The dacoits assaulted the members of the family of Dwarka Prasad and decamped with ornaments and other valuables belonging to them. Dwarka Prasad lodged the first information report on the next day giving details of the property removed by the dacoits. Eventually, on 3 -12 -1961 at about 11.15 p.m. in the night, the three Appellants viz., Kade Khan, Mansab Khan and Bade Khan were arrested in the course of an encounter with the police and some of the articles looted from the house of Dwarka Prasad are said to have been recovered from their possession. Accordingly, three separate recovery memos Ex. Ka. 8, Ka. 9 and Ka. 10 were prepared by Sub Inspector S.K. Tandon and the articles were sealed. The properties were put up for identification in a test identification parade held by Sri R.B. Singh, Magistrate First Class, Pilibhit (PW 8). They were duly identified by Dwarka Prasad PW 1 and his wife Sheo Devi PW 2. The police submitted a charge sheet against all the three Appellants on 30 -10 -62. The committing Magistrate however, discharged Bade Khan, the Appellant from jail and committed the other two Appellants viz., Kade Khan and Mansab Khan to stand their trial in the court of sessions Under Section 35 IPC. The order of the Committing Magistrate is dated 14 -12 -1963.

(3.) DURING the pendency of the case Under Section 395, IPC against Appellants Kade Khan and Mansab Khan in the court of sessions, a separate charge sheet was submitted against them as well as against Bade Khan, the Appellant from jail, on 12 -8 -1963 and a separate case was registered against them Under Section 412, IPC and the three Appellants were committed to the court of sessions by the Additional District Magistrate Pilibhit on 25 -1 -1967. The learned Sessions Judge, Pilibhit who tried that case, found all the three accused guilty Under Section 412, IPC and convicted them under that section sentencing eacti of them to undergo rigorous imprisonment for four years. It is against this conviction and sentence that these two appeals have been filed.