GAYA PRASAD Vs. STATE

JUDGEMENT

(1.) H. C. Mital, J. The above named appellants preferred this appeal against their conviction and sentence under Section 396, I. P. C. to ten years rigorous imprisonment and a fine of Rs. 2,000 each passed by Sri B. P. Mahrotra, IV Addl. Session Judge, Mainpuri on 1st March, 1979.

(2.) THE facts of the case in brief according to the prosecution are that the dacoity had taken place at the house of Hori Lal in village Nagla Hari Ram, P. S. Kotwali, district Mainpuri in the night between 31st December, 1975 and 1st January, 1976 wherein Hori Lal had been murdered while his wife Scot. Phulmati and daughter Smt. Premwati (PW 1) had received injuries. Written report of the occurrence (Ex. Ka-1) is alleged to have been lodged in the morning of 1st March, 1976 at 6-40 a. m. by PW Phulan Singh, husband of Smt. Premwati and son-in-law of the deceased Hori Lai, on the basis of which case was register ed and investigation started. In the F. I. R. . six accused, namely Chakki, Vijai Ram, Gaya Prasad, Panna Lal, Ram Dayal and Subedar were named. Besides that presence of several other unknown dacoits was alleged. Out of them nine accused, namely, Gaya Prasad, Ram Dayal, Subedar, Chakki, Raja Ram, Maharaj Singh, Ganga Ram, Lala Ram and Matadeen were arrested on 1st March, 1976 by PW 13 S. I. Jagdish Prasad Goswami near a brick-kiln (Bhatta) at about 8-30 p. m. and from them looted properties (Ex. 1 to 43) were also re covered. THE accused were made in pardah and thereafter the unknown accused were put up for identification. Accused Vijai Ram appears to have been subsequently arrested. All the ten accused were subsequently committed to the Court of Sessions. THEy were charged under Sections 412 and 396, I. P. C. to which they pleaded not guilty. At the trial the prosecution in all examined 13 witnesses, of whom PW 1 Phulan Singh is the complainant, PW 2 Smt. Premwati, PW 3 Tej Singh, PW 4 Sri Ram, PW 9 Jaiveer Singh and PW 11 Durgai are the other eye- witnesses of the occurrence. PW 5 Ram Swaroop had accompanied the police party when the nine accused were apprehended PW 6 Sri Krishna is the S. D. M. who had conducted the test identification parade of the accused and that of the property recovered. PW 13 J. P. Goswami had apprehended the nine accused as stated above and recovered the properties from their possession. PW 12 Sri Jambu Singh was S. H. O. , Mainpuri and had conducted the investigation of the case. THE remanding are the formal witnesses. That apart the prosecution also tendered in evidence the following documents, genuineness of which was duly admitted by the defence : (1) Inquest report of Hori Lal dated 1. 1. 76 marked as Ex. Ka. 25. (2) Injury report of Premwati dated 1-1-76 marked as Ex. Ka. 26. (3) Injury report of Phoolmati dated 1-1-76 marked as Ex. Ka. 27. (4) Post-mortem report of the dead-body of Hori Lal dated 1-1-76 marked as Ex. Ka. 28. (5) Sketch of dead-body dated 1-1-76 marked as Ex. Ka. 29. (6) Letter to C. M. O. dated 1-1-76 marked as Ex. Ka. 30. (7) Challan dead-body marked as Ex. Ka-31.

(3.) OF the three appellants, Gaya Prasad and Ram Dayal have died since after the filing of the appeal, hence their appeal has been abated. Now the only appellant is Chakki before this Court. He was named in the F. I. R. according to the prosecution he was known to the complainant and other prosecution witnesses and he was clearly seen and recognised in the light of the torches and the fire set by the dacoits themselves in the house, a burning lantern in the house and the fire set to a heap of 'karbi' out side the house on the road by Jaibeer Singh and Kishori Lal. On behalf of the appellant it is argued that the entire prosecution case is fabricated and concocted, that in fact the F. I. R. was also not lodged by that time as alleged, but subsequently was prepared that it was apparent from the record that the accused had been apprehended even before the lodging of the F. I. R. that the prosecution evidence regarding the fire set to the 'karbi' out side the house was also not reliable and that on other circumstances also the evidence of the prosecution witnesses who have named this appellant Chakki among the accused was not free from suspicion. On behalf of the appellant it was urged that the learned trial Court had itself disbelieved the prosecution evidence regarding seven of the accused includ ing three of the known accused. Hence on the ground of parity also the evidence of the same prosecution eye-witnesses against the present appellant should also not be relied upon. The learned Session Judge did not find sufficient evidence against the three other named accused as they were nominated by Phulan Singh (PW 1) and Jaiveer Singh (PW 9) only and the learned Sessions Judge had suspicion regarding the presence of Jaiveer Singh (PW 9) and therefore, on the single testimony of Phulan Singh gave benefit of doubt to the named three accused, namely, Panna Lal, Vijai Ram and Subedar. This appellant Chakki has been named by PW 1 Phulan Singh - complainant PW 2 Smt. Premwati, PW 3 Tej Singh, PW 9 Jaiveer Singh and PW 11 Durgai.