(1.) THIS is an appeal against an order of conviction recorded by the Additional Sessions Judge, Datia, convicting the appellants under section 456 of the Indian Penal Code read with section 34 IPC and S. 307 IPC. read with S. 34 IPC and sentencing them to one year and three years rigorous imprisonment each in Sessions Trial No. 25 of 1978, through Judgment dated 8 -6 -1978.
(2.) THE appellants and one Ezaz Bux were tried for offences under section 456 read with section 34 IPC and section 307 read with section 34 IPC on The allegation that they have committed lurking house trespass by night in the house of the complainant Madar Bux and attempted at the lives of Bakridan, Madar Bux and Rahiman. 3. The prosecution case in short, is that in the night of 9 -10 -1977, at about 200 a.m. Bakridan (PW 1) got up and went to urinate and thereafter when she went to sleep, someone opened the door of her room She thought that her mother in - law might have opened the door. When she tried to close the door, someone gave a knife blow through the gap of doors and two persons forcibly entered into the room. They dragged Madar Bux, who was lying on the cot, out in the Court -yard and caused him knife injuries. On this, Bakridan and Rahiman raised hue and cry and tried to save Madar Bux. The miscreants caused injuries to Rahiman also. Then the miscreants ran away. Bakridan (PW 1) lodged the report at 2.45 a.m. at Police Station, Bhander. 4. The defence of the appellants was that they have not committed any offence whatsoever and they have been falsely implicated. The prosecution examined Bakridan (PW 1), Chandu (PW 2), Madar Bux (PW 3), Shakoor Khan (PW 4), Vaidehi Charan (PW 5). Jagdish Prasad (PW 6), Abdul Hakeem (PW 7), Mubin (PW 8), Guttu (PW 9), Dal Chand (PW 10), Dr. L. Prasad (PW 11), Dr. R. N. Gupta (PW 12) arid other witnesses. 5. The prosecution examined Bakridan (PW 1) and Madar Bux (PW 3) as eye witnesses of the incident. Hasing its finding on the evidence modified above the learned Additional Sessions Judge convicted the accused appellants, but giving benefit of doubt, he acquitted other accused, namely Ezaz Bux. Against the conviction and sentence, the present appeal is filed. 6. After going through the evidence, I am of the opinion that the appeal deserves to be accepted and the conviction and sentence set aside. 7. I will take the evidence of each and every witness one by one. The first witness examined by the prosecution is Bakridan (PW l). In para I or her statement, she has stated that while she was trying to close the door at that time, from outside somebody gave a knife blow, which struck her fingers. When the knife blow fell on her fingers, she cried out that somebody has given a knife blow to her. When she opened the door, she saw two persons and they caught hold of her husband and took him to the Court yard. Hearing her cries, her mother -in -law came out and one of the miscreants gave a knife blow to her mother -in -law, which struck her mother -in -law in the stomach. Further, she has stated that in the room, there was a lamp burning, but it fell down and because of the fall, it went off. At this time her husband told her that be has identified the miscreants and at the same time one of the miscreants cried Shakil Bhag Jao. Hearing this, an The miscreants ran away. The reason for not believing tae statement of this witness is that she has stated further in her statement that the miscreants were of young age and they had covered their faces with cloth. But, in the struggle, the cloth of one miscreants gave way and because of that she could identify the miscreants. In para 5 of her statement, she admits that when the incident took place, no lamp was burning in the court yard and the alleged beating took place in the Court yard Now to the first information report, which is lodged by her there is no mention bat there was a lamp burning as she has stated in her statement so also, there is no mention that the miscreants were identified by her husband. Furthermore, there is no mention that one of the miscreants shouted 'Shakil Bhag Jao', Neither It mentions that she could identify one of the miscreants because in the struggle the cloth with which the miscreants hid their faces, came off. She was put a direct question in cross -examination that her husband did not identify any of the miscreants, nor he mentioned any body's name. She further admits that at the time of beating accused Ezaz Bux: was not there. 8. Now to weigh the truthfulness of the statement given by Bakridan: (PW 1) witness before the Court, I will have to consider the evidence of her husband Madar Bux (PW 2). I may mention here that the learned trial Court acquittal Ezaz Bux, holding that the statement of Bakridan (PW 1) is not worth credence Madar Bux (PW 2) has stated in his statement. the sequence of incidents in the same way as is stated by his wife Bakridan in (PW 1). But, in his statement, he has stated that one of the miscreants said 'Mummy Bhag Jao' and from his voice, he could identify that he is Ezaz, the acquitted accused and for identifying by voice, he has stated that Ezaz resided behind the house which is owned by him and as such he could identify Ezaz from the words uttered by him, I may add here that Bakridan (PW 1) stated in her statement that one of the miscreants cried 'Shakil Bhag Jao', while Madar Bux (PW 2) states 'Mummy Bhag Jao'. But, when he was confronted with his statement recorded as dying declaration (Ex. D/1), he admitted that he had stated the portion marked in his statement with letters B to B. If translated into English, it will read as under: