- (1.)Challenge in this appeal is to the judgement and order dated 5.8.1982, passed by II Additional Sessions Judge, Aligarh in Sessions Trial No. 221 of 1981 (State vs. Umesh and others) whereby the accused-appellants Umesh and Arjun have been convicted and sentenced to undergo five years rigorous imprisonment each under section 395 IPC.
(2.)In nutshell, prosecution case is that written report was lodged on 11.2.1980 at Police Station Sasni, District Aligarh by Sri Jai Pal Singh son of Basdeo Singh with the effect that in the intervening night of 9/10 February, 1980 dacoity was committed in his house when he and his children were sleeping in a room and in another Gher his nephew Ratendra Kumar was sleeping with his children and the lantern was lighting inside the house. It is stated that at about 2.00 a.m. he heard a noise of breaking the door leaves of his stair case and he came out with flashed torch and saw that miscreants had entered into his house. Thereafter he awakened his children and the children of his brother and came out from another door of his house and made hue and cry that the miscreants had come. Thereupon Netra Pal Singh, Jogendra Kumar, Khushal Singh, Raghu Nandan Singh, Mohan Singh gun licensee holders came out with their guns and other witnesses brought their lathis and lit fire to the heap of KARAB kept near the house of Shish Pal Singh. On seeing the light, the dacoits, who were standing on the roof, started firing and caused bullet injury to Hira Lal, Jai Chand and Mohan Singh. In reply, when the witnesses opened fired, then the dacoits ran away in the eastern side. They were about 15-16 in number and have been identified by the witnesses. On the basis of the aforesaid report, a case was registered on 11.2.1980 as Case Crime No. 57 of 1980 under sections 395/397 IPC at Police Station Sasni, District Aligarh but both the accused-appellants were charged under section 395 IPC only because neither any specific lethal weapon was recovered from the possession of the accused persons nor looted property was recovered from them.
Prosecution has produced two witnesses of the fact namely P.W. 2 Jai Pal Singh son of Basdeo Singh and P.W. 3 Jogendra Kumar son of Raghu Nandan Singh. Both these witnesses have deposed about the commission of the dacoity at the house of Jai Pal Singh in the presence of adequate and sufficient light of Lalten and burning KARAB. They also stated that they identified these accused persons during the commission of the dacoity. They did not know any of these accused persons from before.

Prosecution claimed the complicity of both of these accused-appellants on the basis of the result of test identification parade and produced formal evidence consisting of P.W.1 Sri Fasiuddin, Special Executive Magistrate, Aligarh who deposed that on 22.4.1980 he conducted test identification parade of Umesh, Prakash Chand and Arjun in District Jail, Aligarh. The names of the witnesses were read over to the accused persons and their statement was recorded in column no. 1. The distinctive marks on the faces of the accused persons were noted in column no. 3 and the precautions taken in respect of each accused were mentioned in column no. 4. Witnesses were called one by one and after participating in the identification parade they were asked to sit at a place where from they could not talk or hint to the subsequent prosecution witnesses. Separate parades were arranged in respect of each accused and 10 under trials were mixed of similar description in the parade of each accused. The accused persons were wearing fetters as such each parade was covered upto waist with blankets. The result of test identification parade was that accused Umesh was correctly identified by witnesses Jai Pal Singh, Raghu Nandan Singh and Jogendra Kumar without committing any mistake and accused Arjun was correctly identified by witnesses Jai Pal Singh, Ratendra Kumar and Jogendra Kumar and Khushal without committing any mistake. He proved the identification memo (Ex.Ka-1) which was prepared and signed by him at the time of the identification parade and the carbon copy was on record prepared in the same process with the original identification memo. He had mixed the under trials of the same height as that of these accused persons and it was not necessary to mention in column no. 3 as it was mentioned in the identification memo that the undertrials of similar description of the accused were mixed in their parades. These undertrials were picked up by the accused themselves, which was not written in column no. 3 and was written on different place in this identification memo.

Prosecution witness Sri C.S. Rathor P.W. 4, Inspector In-charge of Police Station Sasni stated that on 18.5.1980, he was posted in Sasni Police Station and he conducted the investigation after the transfer of Sri Tota Ram Gupta, Inspector. After completing the investigation he submitted the charge-sheet on 26.5.1980 which was written and signed by him. He had perused the case diary before submission of the charge-sheet.

Prosecution witness Sri Pratap Singh Chauhan P.W.-5 S.I. stated that on 21.2.1980 when he was posted as Sub-Inspector in the concerned Police Station he along with S.O. and other members of police force on that date had gone to the bridge of Sengar river where they met with the members of the police force of Police Station Hathras Junction and Police Station Sasni then they raided in village Bagharaya collectively and arrested accused Umesh and Arjun. He denied that these accused persons were not kept BAPARDA. Prosecution also filed affidavit of Head Constable Keshao Deo who had deposed that on 22.2.1980 he was posted at Hathras Junction Police Station and took accused Umesh and Arjun and other accused persons along with constable Raghubar Dayal and Constable Shiv Kumar BAPARDA to the District Jail, Aligarh. Nobody was allowed to see them. Identification parade was taken on 22.4.1980 in District Jail, Aligarh.

Prosecution has produced F.I.R. (Ex.Ka-5) and site plan (Ex.Ka-6), injury report of Hira Lal (Ex.Ka-7) and injury report of Jai Chand (Ex.Ka-8) and extract of G.D. vide report no. 18 at 11.15 a.m. dated 20.2.1980 (Ex.Ka-9) and the recovery memo of torch (Ex.Ka-10 & Ex.Ka-11) and supurdginama of lanterns (Ex.Ka-12 and Ka-13) and recovery memo of empty cartridge (Ex.Ka-14) and burnt ash (Ex.Ka-15).

(3.)After the evidence of the prosecution was closed, the statement of the accused was recorded under section 313 Cr.P.C., in which they denied the occurrence and stated that they have falsely been implicated in the case.
Accused Umesh stated that the prosecution witnesses knew him from before. He added that earlier he used to study in Thulai school in 1979 in IX class. He had a quarrel with Jai Pal teacher and he had been visiting the house of Sri Mahendra Singh. Accused Arjun Singh stated under section 313 Cr.P.C. that he was not present on the spot and the prosecution witnesses knew him from before. He was falsely implicated due to enmity. He further added that Sri Mahendra Pal Singh, Sarpanch of village Mohari was father's sister's son and Pappu was his son. He stated that since before this dacoity he was residing at the house of Mahendra Pal Singh Sarpanch and was looking after his agricultural land. His Bua Parwati was married to Ishwari Singh deceased in village Mohari. He had a quarrel with one Bhoori in village Mohari prior to commission of this dacoity in respect of which a case was pending. He was falsely implicated in another dacoity of adjoining village in which he was acquitted. After the death of his Phoopha Ishwari Singh, his land was illegally possessed by Jai Chand, Bhoori and Raghu Nandan Singh.