BIJENDRA AND ANOTHER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Since both the above appeals arise out of the same judgment and order dated 11.4.2005 passed by the learned Special Judge, Dacoity Affected Area, Bharatpur in Sessions Case No. 18/2002 whereby the accused appellants have been convicted and sentenced for the offences under Sections 395, 396 and 397 to various terms, the same have been heard and are being decided together.

(2.) Brief facts for the disposal of the present appeals are that PW3 Vallabh submitted a written report at Police Station Weir District Bharatpur on 13.2.2000 at 5.20 a.m. which was accepted by a constable at the Police Station on the basis of which a formal F.I.R. Ex.P-5 was registered. It was inter-alia alleged in the report that in the intervening night of 12/13.2.2000 at about 1.20 a.m. 8-9 miscreants duly armed with lathi, iron rods and fire arms (bandook and desi katta) entered in the residential house of the complainant and enquired about the valuables from his father who was sleeping in a kothri (small room). His father asked them as to who were they. They instead of disclosing their identity assaulted him by lathi and iron rod. Thereafter 4-5 miscreants entered in the adjacent room where Smt. Sunita, the wife of his younger brother of complainant was sleeping. They asked her to give them keys of the almirah. At that time one of the miscreants caused injury on her cheeks by inserting iron rod therein, as a result of which she fell down and miscreants took out cash, gold and silver jewelery from the almirah. The miscreants also snatched the ornaments which Smt. Sunita was wearing on her person at that time including the bangles, ear,rings, ring and chain etc. Thereafter, the miscreants bolted all the family members including brother in law of the complainant Vijay inside a room. It is alleged that thereafter they entered in all other rooms and broke open the locks of boxes, almirahs etc. and collected the valuables and cash. It is also alleged that the miscreants while leaving the house climbed over the roof and when they tried to run away, they were chased by the neighbours, villagers. At that time, miscreants opened fire arms as a result of which one Ismail sustain a gun shot injury. He fell down and was taken to Government Hospital, Bharatpur where he was declared dead.

(3.) On the above report F.I.R. No. 21/2000 was registered and investigation commenced. On completion of investigation, charge-sheet before the learned Special Judge, Dacoity Affected Area, Bharatpur was filed against accused appellants; namely, Brijendra, Shiv Dutt and Shiv Singh. The investigation was kept pending against Lakhan, Girdhari, Kalicharan, Dashrath, Ram Khilari, Sahib Singh, Maharaj Singh, Laxman, Hari Om and Siya under Section 173(8) Cr.P.C. Charges were framed under Sections 395, 396 and 397 I.P.C. against the appellants Shiv Singh, Shiv Dutt and Brijendra on 27.2.2004. In support of its case 23 witnesses were produced by the prosecution and 43 documents were tendered in evidence. The defence got exhibited Ex. D-1 to D-5. Five statements of witnesses recorded by the police under Section 161 Cr.P.C. After close of the prosecution evidence in the statements recorded under Section 313 Cr.P.C., the appellant Shiv Singh denief the allegation and stated that he was shown to the witness prior to conduct of test identification parade. Accused Brijendra stated that he was beaten by police and a relative of complainant who is constable demanded bribe for filing final report. Accused Shiv Dutt stated that he was taken to complainant's house while in custody in other case. One 'sepoi' demanded Rs. 20,000/- for filing final report in the case. No evidence in defence was produced.