VIVEK KUMAR BIRLA,J - (1.)This criminal appeal has been preferred assailing the judgement and order dtd. 15/11/1983 passed by Additional Sessions Judge, Etah, in Sessions Trial No. 242 of 1983 convicting and sentencing the appellants under Sec. 394 IPC read with Sec. 397 IPC to undergo seven years rigorous imprisonment and under Sec. 460 IPC to undergo sentence of life imprisonment directing all the sentences to run concurrently.
(2.)By the order dtd. 18/11/1983 both the appellants were released on bail. As per the office report dtd. 10/5/2024 based on the report submitted by the Chief Judicial Magistrate, Etah, the appellant no. 2-Jagdish, son of Jaerath Singh has died, therefore, appeal in respect of appellant no. 2 stood abated. The appeal now survives only on behalf of appellant no. 1-Rakshpal, son of Raghuvir Singh.
(3.)It is pertinent to mention here that co-accused Rameshwar and Menhdi had approached this Court by filing Criminal Appeal No. 2958 of 1983 (Rameshwar and another vs. State of UP). During pendency of appeal appellant no.2 Menhdi therein died, therefore, appeal on his behalf stood abated. In respect of the appellant no.1-Rameshwar therein the appeal was partly allowed by a Co-ordinate Bench of this Court vide order dtd. 28/3/2024. In the said judgement, brief prosecution story has been appropriately narrated in paragraph 6 of the said judgement, therefore, there is no need to reiterate the same. Paragraph 6 of the said judgement is quoted as under:
"6. The prosecution case is in brief is that in the intervening night of 25/26/7/1982, at about midnight, an armed robbery took place at the house of complainant, Shiv Raj Singh in village, Nagla Himmat hamlet of Raya, within the circle of Police Station Jaithara, district Etah, in which Johari, the brother of the complainant was gunned down and Ram Chandra, the father of Shiv Raj Singh, was inflicted Lathi injuries at the hands of the hooligans. On the fateful night, complainant, Shiv Raj Singh, alongwith his nephews, Arjun Singh and Ram Kumar, was sleeping under a thatch on north-eastern corner of the courtyard. Deceased, Johari, was sleeping on the roof in a thatch. J?i Singh and Shri Ram, the brothers of the complainant, were sleeping in another thatch in the west of the courtyard. Complainant's father, Ram Chandra and mother were sleeping in another thatch in front of the chaupal in west-south corner of the house. Ladies and the children were sleeping in a Dehliz, of which the main door of the house in east and another door connecting it in the west towards the court-yard. A burning Lantern was hanging on an iron rod embedded in the northern wall of the staircase from which sufficient light was spreading in the entire house. At about mid night, some miscreants entered the house scaling through the roof from the western side. The complainant and other family members woke up on hearing some sound and they noticed and recognised appellant no.1, Rameshwar, armed with a S. B. B.L. gun, appellant no.2 Mehndi armed with a Lathi and co-accused, Jagdish and Rakshpal, armed with pistols in the house. Appellant no.1, Rameshwer, and Mehndi surrounded the house inmates and warned them not to run otherwise they would be shot-dead, while accused Rakshpal and Jagdish looted the house hold articles, from different apartments of the house. When the hoodlums were about to decamp with the looted property, Johari, the brother of the complainant, and Ram Chandra, father of Shiv Raj Singh, complainant, tried to run raising an alarm, on which Rameshwar fired shots at Johari, which hit on his legs and he fell down in the Dehliz (room). Accused Menhdi assaulted Ram Chandra with Lathi. The shrieks and cries of the house-inmates and the sound of the fires attracted Ram Dularey and Ram Dayal, gun-licencees, who arrived there with their guns and torches, and Dalpat Singh and Ram Nath with Lathis flashing their torches. It is said that they witnessed the entire occurrence from northern side of the Cattle Gher of the complainant standing near a tree and Burji(a place for stocking straw for the cattle). On the challenge of the witnesses and the fires made by the gun-licencees, the ruffians decamped with the looted booty, coming outside the house from the eastern door and then went away in the south. Afterwards the house inmates went inside the Dehliz and found Johari lying wounded who also disclosed that Rameshwar made a fire at him. After some times Johari succumbed to his injuries at the same place. It is alleged that the house inmates and the witnesses saw and recognized fully the accused in the light of the burning lantern in the courtyard and the torches of the witnesses while fleeing."