BALJIT AND OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) The present criminal appeal has been preferred by the two appellants, namely, Baljit Singh and Gaya Shankar @ Daya Shankar, both sons of Bihari, out of whom appellant No.1-Baljit Singh son of Bihari has died during the pendency of the present appeal and appeal on his behalf has already been ordered to be abated by Coordinate Bench of this Court vide order dated 28.1.2009, thus, the present appeal survives with respect to appellant No.2-Gaya Shankar @ Daya Shankar only, hence, the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant, namely, Gaya Shankar @ Daya Shankar.

(2.) The present criminal appeal has been preferred against the judgment and order dated 01.02.1983 passed by IVth Additional Sessions Judge, Fatehpur in S.T. No.393 of 1981, under Section 396 I.P.C., Police Station Malwan, District Fatehpur convicting and sentencing the appellants for life imprisonment.

(3.) The prosecution case in nutshell is that the informant Deshraj submitted a written report at Police Station Malwan, District Fatehpur on 3.2.1981 alleging therein that on 3.2.1981 in the evening at about 6.00 p.m., he along with his brother Chhedilal who was Village Pradhan, Raghubir Singh, Bhola and Vijay Bahadur were warming themselves by fire (Kauda) in the verandah in front of the main door of his house. Lanterns were burning at his house as well as at the house of Roshan Singh which were hanging at their doors. Roshan Singh, who was his cousin brother, was performing prayer in the evening at the Chabutra in front of the doors of his house. The females of both the houses were busy in cooking food and 'dibris' were burning inside the two houses. They heard noise and foot steps of some persons coming from the north. As soon as said persons reached at the door of the house of Roshan Singh, he saw that 5-6 of them were having guns and one of them was having an axe (Kulhadi) and rest of the persons were armed with Tamanchas (country-made pistols) and were having torches. Some of them had masked their faces. 5-6 of them then climbed on the Chabutra of Roshan Singh and caught-hold of him, dragged him inside the house and rest of them started abusing and threatening. Chhedilal Pradhan ran to the house and bolted the doors from inside and rest of them ran towards west in Galiyara (Corridor) raising an alarm and challenging the miscreants. The miscreants thereupon fired gunshot which caused injuries to Rabhuvir Singh and Vijay Bahadur. The miscreants started asking Roshan Singh about his belongings, one of them picked up the gun and cartridges of Roshan Singh. They further asked from the wife of Roshan Singh about her belongings. When Roshan Singh failed to disclose about the articles, one of them fired a gunshot at him inside the house, who died instantaneously on account of the gunshot injury. The miscreants looted the articles given in the list mentioned in the report. While committing loot in the house of Roshan Singh, the miscreants were kept on going in and coming out to the house of Roshan Singh and flashing torches. On the alarm raised and hearing the fire shot, Basdeo, Ram Asrey, Laxmi Narain, Sheo Shankar, Rameshwar came with their guns. Fattey, Sumer, Buddhu and Gaya Prasad also arrived there with lathis. All of them started challenging the miscreants and flashing torches towards south of the house of Manni. The licensed holders also fired gun shots towards them. The miscreants who were 10-12 in number had after coming out of the house of Roshan Singh, went to the house of Chhedilal Pradhan and started abusing and asking him to open the door. When he failed to open the door, one of the miscreants broke the door with axe and 5-6 of them went inside the house. In the meantime, Raj Bahadur @ Rajau lit fire to the pual heap which was towards south of the temple which gave sufficient light. They fired gunshot at Chhedilal Pradhan inside the house where he died. They looted the articles and belongings of Chhedilal and during the act of looting the house of Chhedilal, they kept on coming out and going inside the house of Chhedi Lal. During the said process, the mask (Dhatha) of some of the miscreants had by that time unfastened. The witnesses, informant and family members of the house saw and recognized them in the light of lantern, torch, 'dibri' and pual light. They identified and recognized Baljit, Gaya Shankar @ Daya Shankar of the village and Ramraj Lodh of village Dadhiwa participating in the crime. It was stated by the informant that rest of the accused persons were seen and he could recognize them on being produced. He also claimed that some of the miscreants were seen in the dacoity committed in the house of Rampal, Harchhati and Rajaram. According to the written report, one of the miscreants was 'Adher' while the rest were young and were speaking in the accent of neighbourhood and they were wearing Kneekar, Paijamas, Dhoti, Kurta and Sweter. Upon the pressure of the people of the village and firing of the licensed holders of the village, the miscreants fled away towards north. They were chased to some distance. It was further stated that he could recognize the looted articles if produced before him.The informant leaving the dead bodies inside the houses and sending the injured witnesses, i.e., Raghubir Singh and Vijay Bahadur to the hospital came to the police station along with Gajraj.