One of the injured named Nausher Ali Khan was removed to Calcutta hospital, where he died, from Magadh Hospital Gaya for further treatment whose P.M. Report was procured by the I.O. from Park Street Police Calcutta.
Asfaque Ali P.W.5 , the officer incharge of Bankey Bazar outpost.
In the case of accused appellant Bindeshwari Rao, it is submitted that though he has suffered custody for about one year, companysidering the unclear role attributed to him by the prosecution his case deserves sympathetic companysideration.
It found that occurrence took place on 15.3.1983 and the deceased breathed his last long after about a month.
After the dacoits had left, the informant came to know that dacoits had also entered into the house of his uncle and grandfather and after causing injuries to them they had also looted away a Licensee gun from their house.
The Fardbayan was recorded by Mohd.
While retreating the dacoits were rising slogans M.C.C. Zindabad.
Altogether eight witnesses were examined on behalf of the prosecution.
It is said that during investigation after recording the Fardbayan and formal F.I.R. Ext.3 the I.O. sent the injured persons to the hospital for their medical treatment.
Three of them i.e. Ganzaffar Ali Khan PW 1 , Zahid Ali Khan PW 2 and Yusuf Ali Khan PW 4 were three sons of Khalil PW 2 in whose house the alleged dacoity took place.
However, he directed acquittal of the eleven companyaccused persons.
In the meantime 20 25 more persons entered through the door and inside the house and began looting away the household properties.
Altogether 70 80 dacoits were alleged to have participated in the dacoity.
Among them the informant identified as many as 12 persons namely, Bindeshwari Sao 2 Suraj Pasi 3 Ram Lal Chamar, 4 Baijnath Mishra, 5 Bishaum Singh, 6 Arjun Mahato 7 Basudeo Yadav, 8 a teacher of Bankey Bazar High School resident of village Barka Jamuara, 9 Ram Swarup Ram 10 Lalu Khan and 11 Vijoy Yadav and Sammid Ahmed Khan.
Some of the accused persons were also placed in the T.I. Parade and some of the accused were identified by the witnesses in the I. Parade.
It is mentioned in the fardbeyan that the man who caused injuries to the informant with gun shot was of fair companyplexion and a tall man whose name he did number know.
Placing reliance on their evidence, the trial companyrt held the five appellants in the three appeals before this Court to be guilty of offence punishable under Section 396 IPC.
However, some of them were made accused by the orders of the trial companyrt under Section 319 of the Code of Criminal Procedure, 1973 in short Cr.
After investigation charge sheet was submitted by the officer against some of the accused persons named in the I.R and also against some of the accused who were identified in the T.I. Parade and also against some of these who were named subsequently by the witnesses before the investigating police officer whose names neither figured in the F.I.R. number were said to have been identified in the test identification parade.
P.C. Some of the P.Ws were already examined before charge was ordered to be framed against four of the accused under Section 319 Cr.
The source of identification was the light of lantern burning in the house.
The value and the list of the articles was to be furnished subsequently.
On the deceased Nausher Ali Khan injuries with Pharsa and gun shot was caused while Khalil Bux Khan P.W.3 suffered injuries with lathi and Pharsa.
Though certain persons were named and overt acts were attributed to them the evidence in Court was at variance with the statement.
He fled inside the room.
One of them fired twice from the gun making the informant injured.
The trial companyrt placed reliance on the evidence of all the four witnesses who claimed to be eye witnesses.
Some of the accused named in the F.I.R. were number sent up by the police for trial.
So far as the appellant Bindeshwari Rao is companycerned, it is submitted that though he was named in the FIR, the role attributed to him was number specific.
The companyvicted accused persons preferred two appeals before the High Court while the State preferred an appeal questioning acquittal of Dr. Shamin Ahmad Khan alias Samman Khan.
It is alleged that the informant was at his house at about 7 p.m. Suddenly 10 armed persons entered into the house through the open door.
P.C. which resulted in the de numbero trial of all the accused persons.
Factual position in a nutshell is as follows The case of the prosecution, briefly stated, as companytained in the Fardbayan Ext.2 of the informant Yusuf Ali Khan son of Khalil Bux Khan P.W.4 is as follows The Fardbayan was recorded at the P.O. Village Khaira, S. Auras, District Gaya at 8 p.m. relating to the alleged occurrence of 7 p.m. on the same day on 15.03.1983.
PW 4 the informant was also seriously injured and according to the prosecution sustained eleven injuries.
Dr. ARIJIT PASAYAT, J. These three appeals have a companymon matrix and judgment of a Division Bench of the Patna High Court.
He was dragged into the companyrtyard where his father Khalil Bux Khan P.W. 3 , and his brother Nausher Ali Khan hereinafter referred to as the deceased were sitting.
