RASH Vs. STATE

JUDGEMENT

(1.) NARESH, appellant, resident of village Jalalpur, Police Station Bisauli, district Budaun, has been convicted under Sec. 395 IPC and sentenced to undergo R.I. for 5 years for having participated in a dacoity committed by a gang of about a dozen bad characters in the houses of Ram Prakash (PW3) and Ram Swarup, father of Maharaj Singh (PW 2) in village Karanpur within police station Bilsi, district Budaun on the night intervening 11th and 12th January 1973 at about 10-11 P.M.

(2.) THE appellant was arrested on 5-4-1973 by Adya Prasad Tiwari S.I. (PW 8) from his village and taken to police station Bisauli. From police station Bisauli, Dalchand constable escorted the appellant on that day to District Jail, Budaun. On 31-5-1973, the appellant was put up for test identification. THE identification proceeding was conducted by Sri N.N. Varma, Magistrate (PW6). THE appellant was identified by Shyam Lal (PW 1) father of Ram Prakash, Maharaj Singh and Ram Prakash. THEre was a lantern burning at the verandah inside the house of Ram Prakash. Shyam Lal (PW 1) was sleeping in the verandah. He was, therefore, able to see the dacoits very well. Ram Prakash ran out of his house and Maharaj Singh also ran from his house. THEy stood in a narrow street to the west of the house of Brijpal which is to the south of the house of Shyam Lal and Ram Prakash, with a narrow street in between and to the south each of the house of Ram Swarup. THE house of Ram Swarup is to the west of the house of Ram Prakash. Some open land is between these two houses. THE house of Ram Prakash faces east. After having committed dacoity in the house of Ram Prakash, the dacoits went towards south and then towards west through the street which is between the houses of Ram Prakash and Brijpal and thereby reached the house of Ram Swarup and after having committed dacoity in the house of Ram Swarup, the bad characters bolted away towards north. THE light of lantern which was burning inside the house of Ram Prakash was not available to Maharaj Singh and Ram Prakash. At the place where Ram Prakash and Maharaj Singh were standing at the time of dacoity, there were other village people. THEse village people had two torches, one was with Maharaj Singh and the other with Hira Lal. At north-eastern corner of the house of Brijpal some straw was burnt. According to Maharaj Singh and Ram Prakash they saw the dacoits in the light of torches and the fire of burning straw. It is obvious that Maharaj Singh and Ram Prakash could not see the dacoits when they were committing dacoity in the house of Ram Swarup and when they were bolting away from the house of Ram Swarup towards north.

(3.) BESIDES, in the instant case Shyam Lal had every occasion and time 1:o mark the features of the dacoits because he was inside the house and a lantern was burning quite close to him. Therefore, identification by Shyam Lal so far as the appellant is concerned, should have been accepted by the court below.