CHANDAN Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Chandan, Roopsingh, Janaksingh, Dharamsingh and Pyare against their conviction by the Additional Sessions Judge, Bharatpur, under sec. 395/397 I. P. C. and sentence of five years' rigorous imprisonment.

(2.) THE prosecution case against the accused was that on the night between the 7th and 8th July 1949 these five accused along with six others namely Maharajsingh, Hatila, Bhura, Kalwa, Inderbhan, and Mula committed a dacoity at the house of Birbal Mina in village Khatipura and during the dacoity murdered Tikam son of Kalli Mina and injured certain members of his (Birbal's) family. It was alleged that the dacoits had taken away by force silver ornaments belonging to the females of the house of the value of Rs. 279/ -. Out of 11 accused Chandan was caught on the spot and produced before the police. Other accused however escaped and six of them i. e. , Maharajsingh, Hatila, Bhura, Kalwa, Inderbhan, and Moola absconded. THE report of the incident was made at the police station Roopbas on the 8th July 1949 at about 5. 30 A. M. by one Bahadur. In this report the names of the alleged dacoits were not mentioned but it was mentioned that one of the dacoits had been caught on the spot. Chandan was handed over to the police on 8th of July 1949. THE other four accused were also subsequently arrested by the police. THE five accused were alleged to have made their confessions before Shri Pyaremohan, Magistrate, First Class, Bayana under sec. 164 Cr. P. C. THE alleged confessions of Roopsingh, Janaksingh, Dharamsingh, and Pyarey were recorded on the 14th of July 1949 and that of Chandan on 15th July 1949. On 5th August 1949 an identification parade was held in Sewar Jail in Bharatpur District before another Magistrate, Mr. Purushottam Lal Gupta, Magistrate, First Class, Bharatpur. At this identification parade it is alleged that Roopsingh accused was identified by Mishri, Lakhi, Ratanlal, and Sheonarain Minas of village Khati-pura; Janaksingh was identified by Mishrij Jailal, Sirmohar, and Lakhi Minas of Khatipura; Pyarey accused was identified by Lakhi only; and Dharamsingh was identified by Sirmohar and Lakhi only. No stolen property was recovered from the possession of any of the accused and a sword, not alleged to be the looted property, is said to have been recovered from the house of Roopsingh accused at his instance and at the instance of Janaksingh and Pyarey two lathis were recovered from the house of Dharamsingh accused. A sword was recovered from the house of Dharamsingh accused at his instance. At the instance of Dharamsingh a bush-shirt, a knicker, an ordinary shirt, and a whistle alleged to be the property of Tikam deceased were recovered. All the weapons recovered from the house of the different accused are not alleged to be among the property looted. After investigation, the case was challaned by the police at Roopbas and the learned Special Magistrate, Bharatpur, with powers under sec. 30 Cr. P. C, committed the five accused to take their trial in the Sessions Court at Bharatpur under secs. 396/397 I. P. C. All the accused denied the charge and Chandan pleaded that he was passing through the village on his way to some other village when he was caught by some of the villagers. THE learned Additional Sessions Judge, Bharatpur, who tried the case, was satisfied from the prosecution evidence that all the five accused were guilty under secs. 395/397 I. P. C. and consequently convicted them for the said offence and sentenced them as mentioned above. He however held that it was not proved that Tikam met his death at the time of dacoity and he therefore acquitted all the accused of the offence under sec. 396 I. P. C. All the five accused have now filed this appeal.