MAHIMA Vs. STATE OF U P

JUDGEMENT

(1.) The present appeal was filed by two appellants namely Mahima and Kattar who were convicted under Section 395, I.P.C. and sentenced to five years R.I. vide judgment and order dated 21.1.1981 passed by the 1st Additional District and Session Judge, Jaunpur in Sessions Trial No. 191 of 1977. The appellant Mahima died during pendency of the appeal and by order of this Court dated 25.2.2004, the appeal stands abated so for it relates the appellant Mahima. Bail bond of Kattar has been cancelled and none appeared on his behalf. Compliance report was awaited for considerable length of time but whereabouts was not traceable. Finally Ms. Sandhya Agrawal Advocate was appointed as Amicus Curiae who prepared the appeal and argued today.

(2.) The occurrence is alleged to have taken place on 5/6.3.1976 at 12.30 mid night. The F.I.R. was lodged on6.3.1976 at 7.10A.M. regarding a dacoity committed in the house of Paras Nath Singh. The first informant was also Paras Nath Singh PW-1. The F.I.R. was registered under Sections 395, 397, I.P.C. at Police Station Machhali Shahar, District Jaunpur. Five accused namely Mahima, Ram Nath, Ram Jeet, Kattar and Chhanu were sent up for trial. The present appellant Kattar was not named in the F.I.R. and only evidence against him is of identification.

(3.) The prosecution case is that in the night between 5/6 March, 1976 Paras Nath Singh and his family members were sleeping inside their house situated in village Khajuri, Police Station Machhlishahar, Jaunpur. In this house Paras Nath Singh and his Pattidars Tej Bahadur and Bansh Raj Singh also live separately. A lantern was burning outside the house and at about mid night 10-12 dacoits came to the house. They got the main door opened. Seven eight dacots went inside the house and started looting the property. Paras Nath Singh and his family members raised alarm. Meanwhile Tej Bahadur Singh who was sleeping out side the house set the Chhappar on fire. The house was situated towards the north eastern corner of the house of Paras Nath Singh. Hearing the alarm, Burhabu alias Indramani, Doodhnath, Sabhapati and several others came on the spot. They attempted to apprehend the dacoits but the dacoits started running away towards north after looting the property of the house. A Jhola containing hand grenade was left out side the house. The family members of Paras Nath Singh and witness started attacking the dacoits with these hand grenade. Consequently several dacoits received injuries. Three dacoits were however arrested at the spot. The others ran away. The dacoits who ran away, were recognised in the fight of lantern and the light of burning Chhappar on the site of incident. Sugriv Singh of village Chahi and Ram Nath accused were recognised in the light of lantern and fire. In interrogation, the arrested dacoits disclosed their names as Mush Lal and Ram Jeet and Kalu alias Sheodhani of Varanasi. The prosecution alleged that Sugriv Singh has a relationship with Shri and Ram Nath accused. Sugriv Singh was seen visiting the house of these peoples. It has been alleged that Ram Nath is the resident of village Sarawa. He has his fields in the village Khajuri. Consequently Ram Nath Singh and his brothers visited the village Khajuri very often.