HARI LAL Vs. STATE OF U P

JUDGEMENT

(1.) N. S. Gupta, J. Hari Lal who was convicted in Sessions Trial No. 180 of 1979 by Sri V. N. Gupta, the then IVth Additional Sessions Judge Gorakhpur un der Section 396, IPC and was sentenced to undergo imprisonment for life and fine of Rs. 500/- and in default of the payment of the same to undergo six months further R. I. as per judgment and order dated 12-2-1980, has come up in appeal before this court.

(2.) THE prosecution case as unfolded by the first informant Hafiz (PW-4) is that on the intervening night of 30-4-79/1-5-79, he was sleeping outside his house situate in village Tendua, police station Pipraich, district Gorakahpur. Some of his family members were sleeping by his side whereas the others were sleeping inside the house. At about 11. 00 p. m. , Hafiz and his other family members woke-up on hearing the sound of gun shot. THEy raised an alarm. THE dacoits who were seven in numbers and were armed with deadly weapons like gun intimidated Hafiz (PW-4), Taj Mohammad (PW-1) Sukhari (PW-3 ). Mohd. Ali, Nabi Husain and Murtuza. THEy collected all of them at one place and four of the bandits surrounded them. THEreafter some of the bandits broke open the eastern door of the house of the com plainant Hafiz (PW-4 ). THEy entered into the house. THEre they started looting arti cles which included a trunk. THE bandits looted away wrist watch of Khalil, After committing loot inside the house of the complainant the bandits entered into the house of Murtuza and there too they committed loot and looted away a box. Hearing the nosie Phaujdar (deceased), Bhagwati, Phagu and other villagers of the nearby village of Barua reached at the spot. THEy had torches which were being flashed by them. THEy set fire to a thatch. THE prosecution claimed that the faces of the bandits were seen by the victims and the villagers in the light of torches and the flames of the fire. THE dacoits decamped with the looted property. THEy were chased by the villagers. On of the bandits opened fire near the electricity transformer. Phaujdar (deceased ). Phagu and Sukhari (PW-3) sustained a number of injuries. THE condition of Phaujdar became serious. All these three injured persons were, therefore, taken to Medical College, Gorakhpur where Phaujdar succumbed to his injuries. Hafiz (PW-4) got a report Exh. Ka. 1 written by Taj Mohammad (PW- 1 ). He took the same to the police station Pipraich in the following morning and lodged it there at 8. 10 a. m. THE police station Pipraich lay at a distance of about 4 kilometres from the place of occurrence. On the basis of the FIR Exh. Ka 1 Head Constable Lalji Yadav (PW-5) prepared Chik report and G. D. report.

(3.) THE accused appellant was put up for identification inside the district Jail Gorakhpur on 26-5-79. Jagdeo Singh (C-1) who was then working as Executive Magistrale-cum-Deputy Collector Gorakh pur conducted the identification proceed ings. During the course of identification, Mohd. Khalik, Sukhari (PW-3), Qadir Ali, Taj Mohammad (PW-1) Ramzan and Phagu (PW-2) had correctly identified the accused appellant. After receipt of the re port of the identification S. I. Abhai Singh (PW-9) submitted the charge- sheet against the accused appellant.