MAHFOOZ AND OTHERS Vs. THE STATE

JUDGEMENT

(1.) This is an appeal by Mahfooz, Razzaq, Mooda and Illias who have been convicted under Sec. 396 and each sentenced to imprisonment for life. Three other persons Ram Singh, Phool Singh and Kala were tried jointly with the appellants for the same offence. Ram Singh and Kala were acquitted. Phool Singh was also convicted under Sec. 396, I.P.C. and the same sentence was awarded to him as was awarded to the appellants. Phool Singh seems not to have appealed.

(2.) On the night between 8th and 9th of June 1957 at about mid-night an armed dacoity took place at the house of Rajaram (P.W. 1) in village Gujarpur within police circle Khandhla in district Muzaffarnagar. The dacoits were twelve in number. Two of whom were armed with guns, two others with spears and the rest with lathis. After some of the dacoits had gained entrance into the house from over the roof of Rajaram by means of a ladder, the main door of the house was let open. The other dacoits thereby gained entrance to the house. The two dacoits who had guns went up the roof and fired certain shots in order to scare away the villagers. Niranjan (P.W. 4) received gunshot from them. The other two dacoits who were armed with spears stood by the side of the outer door of the house in order to keep guard there. The dacoits who were inside, broke open the boxes and committed loot for about half an hour or 45 minutes. It was upon the alarm raised by Rajaram that Niranjan, Man Singh, Dila, Lachhia, Malkhan, Budhu and certain others, the neighbours, came to his assistance. During the course of the dacoity a stack of Phoos that was lying at a short distance was set fire to by one of the villagers and this rendered visibility possible. The night itself was also a moon-lit night and there was evidence to the effect that the moon was bright. When the dacoits were retreating with their booty and were at a very short distance from the house of Raja Ram, they perceived that there was a gathering of a large number of villagers and they apprehended that they would be given a chase and might be caught. In order to frighten the villagers from coming near them they fired certain shots when they were in front of Data Ram's gher, and by those shots Lal Singh, Bhupal, Bhumman, Sultan and Shrimati Kali were hit. Bhupal died instantaneously and Lal Singh survived for about half an hour or so. The dacoits ultimately succeeded in escaping with their booty. A report of the occurrence was lodged at police station Kandhla by Raja Ram on the 9th of June, 1957 at 6 A.M., the police station having been at a distance of about three miles from the place of occurrence. In this report the name of Ram Singh alone was specified amongst the culprits and it was stated that there were 10 or 12 other dacoits who were unknown but who had clearly been seen by the witnesses and could be identified. The report gives also a list of the property that had been taken away.

(3.) A large number of witnesses were examined on the side of the prosecution. The commission of the dacoity was deposed to by 11 witnesses, namely, Raja Ram, Dila, Lachhi Rain, Niranjan, Smt. Vidyawati, Smt. Wazari, Dharma, Thana, Malkhan Singh, Bahadur Singh and Budh Singh. Raja Ram was the person at whose house the dacoity was committed; and he saw the dacoits from his gher. Dila, Niranjan, Dharma, Thana and Malkhan Singh were proceeding towards the house of Raja Ram when the alarm was raised and when the dacoity was still in progress. Niranjan was shot at and hit by the dacoits who were on the roof. The evidence of these witnesses has not at all been challenged before us and there can be no manner of doubt that on the night in question an armed dacoity took place at the house of Raja Ram. Dr. P.N. Rastogi, the medical officer of Kandhla Hospital, examined the injuries on the morning of 9th June, 1957 of Smt. Kali, Dhumman, Sultan and Niranjan and gunshot wounds were found on them. It was in the evidence of the prosecution witnesses that the night in question was a moon-lit night and the moon was bright. It was 'further in evidence that a stack of hay was set fire to at a short distance from the house of Raja Ram and that that rendered visibility still clear. It appears from the evidence of the prosecution witnesses that when the dacoits were retreating and were a few steps away from the house of Raja Ram, they noticed an assembly of villagers near the baithak of Lal Singh. They would naturally have apprehended that a chase by the villagers was possible. Accordingly they fired two rounds when they were in front of Data Ram's gher over that assembly. By that fire Lal Singh, Bhupal, Dhumman, Sultan, Smt. Kali were hit. The last three survived and were medically examined by Dr. Rastogi, who found that Dhumman had got a gunshot injury, Sultan had six gunshot injuries, Smt. Kali had a gunshot injury and Niranjan, referred to above, had seven gunshot injuries. Lal Singh and Bhupal met with their death. Their dead bodies were sent for post mortem examination. The post mortem examination reports and the evidence of the doctor who conducted the post mortem examination show that Bhupal and Lal Singh deceased each got two gunshot injuries and that death was the result of those injuries. The medical evidence and the statement of the witnesses who were produced on the side of the prosecution have not at all been challenged before us by the learned counsel for the appellants.