STATE OF RAJASTHAN Vs. KURDIA AND ORS.

JUDGEMENT

(1.) Out of the eight accused who have all been acquitted by the learned Sessions Judge, Alwar by his judgment under appeal, the accused Kurdia, Sunda, Hukma, Teja and Bakhtawar were tried for offence under section 395/397 Penal Code and the rest of the accused namely, Gomtidas, Richpalsingh and Bahadurmal were charged under section 120-B Penal Code all of them were acquitted. Aggrieved by the order of acquittal dated 9th June, 1961, the State filed this appeal against, Kurdia, Sunda, Hukma, Teja and Bakhtawar. The complainant Gyarsilal filed a revision application against all the eight accused. The appeal against Bakhtawar and Hukma was decided on 28th Nov., 1963 and both the accused Bakhtawar and Hukma were convicted under section 395 Penal Code and sentenced to five years rigorous imprisonment each. By the same judgment, the revision application was also dismissed. However, the appeal could not be decided against the accused-respondent Kurdia, Teja and Sunda as they had absconded and could not be arrested. That is the reason why the appeal has remained pending for all this time. Out of the rest of the three accused only Kurdia has been arrested. The other two Sunda and Teja have not been arrested so far. We are, therefore, called upon to decide this appeal again in part against the accused-respondent Kurdia only. Since Kurdia was unrepresented. Shri G. S Singhvi, a learned Advocate of this court, was appointed amicus curie to argue the case on behalf of the accused-respondent Kurdia.

(2.) Briefly stated the prosecution case is that on the night intervening 27th & 28th of Jan., 1960 a big dacoity was committed on the house of Gyarsilal Mahajan in village Hibuchana Tehsil Bansur, in the course of which cash, ornaments and other valuables valued at about Rs. 56,000.00were looted by the dacoitt. Gyarsilal and his two brothers Bishambhar Dayal and Banarsilal used to reside with their families in a 'Haweli' composed of two houses as shown in the site plan Ex. P/18. Both the houses are double-storeyed. The house with a courtyard ha* been described as the old house, while the house towards the south attached to it has been designated as the new house. Gyarsilal was sleeping in the room No, 8 as shown in the site plan Ex. P/18. In a steel almirah lying in that room there were currency notes of Rs. 5000.00and also certain other valuables. PW/25 Sushila daughter of Gyarsilal and Kamla, daughter in law of Gyarsilal were sleeping in room No. 5 Smt. Gulabi wife of Gyarsilal was sleeping in room No. 6 and PW/4 Bishambhardayal, brother of Gyarsilal was sleeping with his family in room No. 7. In the old house an iron -safe was lying in room no. 18 on the ground floor and in room No. 22 on the first floor of the old house was sleeping Smt. Kamla wife of Banarsilal PW/24, another brother of Gyarsilal. It is alleged that seven or eight dacoits including the five accused-respondents namely, Kurdia, Sunda, Hukma, Teja and Bakhtawar committed the dacoity. Some of them were armed with pistols and guns and the rest of them were armed with lathies. The dacoits effected their entry into the first floor of the new house through a window after climbing with the aid of a 'Balli'. Smt. Gulabi woke up on account of the sound produced by the dacoits in the process of making their entry into the house and she asked her daughter in law PW/37 Kamla to see what the matter was. On seeing a dacoit, Kamla raised hue and cry and attempted to close the door and the dacoit' pounced upon her. By this time Gyarsilal also awaken. He came out of the room but the dacoits beat him and made him shift outside the room. On being questioned as to the whereabouts of Gyarsilal.. Gyarsilal posed to be a stranger and informed the dacoits that Gyarsilal had gone to Bansur. The dacoits then made enquiries from the daughter and daughter-in-law to hand over the key of the iron safe. They tied the hands of Bishambhar Qayal and brought him out of his room and made him also sit in the 'Jangla'. Enquiries were also made from him about Gyarsilal but he also stated that Gyarsilal had gone to Bansur. Thereafter the dacoits went into the old house where they gave a beating to Smt. Kaushalya and asked her to hand over the key of the safe but she too did not hand over the key. Thereupon the dacoits ransacked the boxes lying in room No. 5 and found out the keys. Some of the dacoits then opened the safe and brought out valuable ornaments from it. Thereafter the Afmirah was broken open and it yielded a rich harvest to the dacoits. Some of the dacoits took Smt. Kaushalya to her room in the old house and from there after opening the boxes obtained certain ornaments and cash. All this took about three hours and after having collected a good booty, the dacoits left the house of Gyarsilal. In the course of committing dacoity they also fired shots from the guns and pistols in order to frighten the villagers and to keep them dead. P.W/35 Sheonarain singh went to the Police Station Nrayanpur and lodged a first information Report Ex. P/44 at 4 P.M. and a case was registered by Station House Officer Mahabirsingh PW/39 who proceeded to the spot and conducted the necessary investigation.

(3.) At this stage, we are concerned with Kurdia only and, therefore, we shall confine ourselves only to the evidence against Kurdia. He was arrested on 22nd Feb., 1960 at Mahendragarh in Punjab. He was put up for identification in the course of investigation on 25th Feb., 1960. Shri M.N. Singh PW/12, Munsiff Magistrate, Alwar conducted the identification proceedings. It is further alleged by the prosecution that Kurdia furnished information regarding the ornaments concealed by him on 2nd April 1960. The Police was taken by him to Rohi Moza Palani in Punjab and nineteen gold ornaments (Articles I to 17, 22 and 23) were recovered at his instance from an earthen pot dug out from under the earth.