ISHWARI Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by Ishwari against the order and judgment dated 7-1-1975 of III Addl. Sessions Judge, Etah in Sessions Trial No. A-318 of 1974 convicting him under Section 412, I. P. C. and sentencing him to four years' R. I. He was also prosecuted under Section 395, Indian Penal Code but was acquitted under that section. Zalim Singh, Sheopali, Rupram, Khamani and Kashi Ram were also tried under Section 395, Indian Penal Code along with him in this very trial court but all of them were acquitted of the charges under Section 395, I. P. C. According to the prosecution case a dacoity was committed at the house of Latoori (P. W. 1) on the night between 27th and 28th of May, 1973 at about 12 in the night in village Kar-sari Hiyat Garhi, police station Kasganj, district Etah, Six named persons along with six other persons were said to have committed dacoity at his house. They had looted the ornaments valuing about Rs. 3,850/- Some of the ornaments were on the persons of Belwati (P. W. 2) daughter-in-law of Umrao Singh had (sic) Latoori Singh. Faces of the dacoits were said to have been seen in the light of the lantern, torches and of burning Koora. Many of the dacoits were said to be covering their faces with dhatas but their faces got uncovered. The dacoits were armed with fire-arms and threatened to kill if anybody cried. After the dacoity was committed Latoori Singh dictated a report to Nathu Ram (P. W. 14 ). Latoori Singh then took that written report to the police station and lodged it on the next day i. e. 28-5-1973 at 10 A. M. A case was registered under Sections 395/393, I. P. C. against Zalim Singh, Sheopali, Rupram, Khamani, Kashiram and six other unknown persons.

(2.) S. I. Deviprasad Sharma (P. W. 13) took up the investigation of the case. He went to the site, inspected the site and prepared the site plan marked Ex. Ka 10 and interrogated P. W. Latoori, Belwati and others. He found five empty cartridges, belts and Tikli lying at the place of occurrence. He took them in his possession. He also took in his possession the sample of the ash. He saw the lantern and found it in working order. He then made a search for the accused persons but they were not available,

(3.) ON 30-5-1973 Iswari appellant was arrested by S. I. J. P. Gautam (P. W. 10) at the culvert of the canal near Bilram. The accused on seeing the appellant (sic) tried to avoid him and ran away. The police Inspector, therefore, felt suspicious and arrested him after giving him a chase and arrested him with the help of passers-by including Alladin (P. W. 11) Lal Ram and others. The accused gave his name as Ishwari. He took search of his person and from his faint a pair of, silver Barahs (material Ext. 1) was recovered from his possession, A recovery memo was prepared at the spot and the signatures of the witnesses Alladin and Lal Ram were obtained on that recovery memo. Recovered articles were sealed in a bundle. The accused, under arrest along with the recovered articles was taken to the police station. He was locked in the hawalat and the article was deposited in the Malkhana and an entry was made in the general diary about the same. Iswari was said to have been sent baparda to the district Jail and the sealed bundle containing the recovered article was subsequently sent to Sadar Malkhana. Ishwari and one Megh Singh were put up for test identification before the Magistrate, S. K. Gupta (P. W. 12) on 15-121973. The recovered property was, however, put up for test identification before the same Magistrate on 7-11-1973. It was correctly identified by Smt. Belwati (P. W. 2 ). Natthu Ram husband of Smt. Belwati had also gone to identify the article but he could not identify it. The identification memo is Ex. Ka 9.