Mahabiria sustained injuries of whom Hiralal died.
In order to further its version prosecution examined 29 witnesses.
Similar was the position regarding Smt.
Background facts in a nutshell are as under A dacoity was companymitted on 9.5.1973 at about mid day for about 2 3 hours in the house of three brothers namely Ramdas PW 9 , Har Prasad PW 2 and Hiralal hereinafter referred to as the deceased in village Palia Buzurg within the area of police station Hathgaon, district Fatehpur.
The investigating officer stated that when he was going to the place of occurrence, he had met the deceased and two other persons who received injuries in the occurrence.
When the injured persons were being taken to hospital, Hiralal succumbed to his injuries.
Placing reliance on testimony of Har Prasad PW 2 , Ram Lakhan PW 7 , Smt.
Station Officer Yadram Verma P.W. 29 took up investigation and he immediately proceeded to the scene of occurrence.
They were Mahesh Chandra and Smt.
During the companyrse of companymission of dacoity, Hiralal, Mahesh Chandra and Smt.
One of them died during trial, and one died during pendency of the appeal before the High Court.
Though the village Chowkidar, Ram Ratan PW 3 reported the matter to the police station on the basis of which Crime case No.30 was registered, numberone was named as accused and the case was registered against unknown persons.
Ram Rati PW 12 .
Only when a written report was submitted by Har Prasad PW 2 to the investigating officer, name of respondent was indicated alongwith Babu Singh and Jhallar Singh.
Stand of the appellant before the High Court was that accused persons were admittedly on inimical terms with Har Prasad PW 2 and it was a specific case that accused Babu Singh had absconded and did number face trial.
It is to be numbered that originally three persons were named as accused and reference was made to 9 unknown persons.
When the investigating officer reached the place of occurrence, Har Parsed P.W. 2 handed over to him a list of stolen articles and also a report giving out details of companymission of dacoity in his house wherein he named three persons, namely respondent Awdhesh, Ram Rattan alias Jhallar and Babu Singh.
Particular reference is made to the evidence of PW 3.
The trial Court held that the accusations have been established.
Sheo Sakhi PW 11 and Smt.
Reference was also made to the evidence of Ram Lakhan PW 4 who admitted that he never mentioned the names of the three persons whose names appeared in the report given by PW 2.
Head Moharrir Fateh Bahadur Singh P.W. 1 recorded the report in chick register and registered case under Section 395/397 IPC.
The investigating officer recorded the statements of witnesses on 10.5.1973, arrested named as well as some unknown persons during the companyrse of investigation and some stolen articles were alleged to have been recovered from respondent Awdhesh and other accused.
In appeal before the High Court it was numbered that the enmity aspect was lost sight of by the Trial Court.
Since the accused persons abjured guilt they were put on trial.
Respondent was accused No.4.
This position was illuminatingly stated by Venkatachaliah, J.Her statement in the cross examination was highlighted by the High Court.
Ram Rati PW 12 the trial Court directed companyviction as numbered above.
Respondent Awdhesh happened to be brother in law of Babu Singh.
The High Court also referred to the fact that while some of the alleged dacoits companyered their faces to companyceal the identity the three named accused persons who were known did number try to companyer their faces.
Primarily, on these premises the High Court directed acquittal.
While dacoity was in operation, the matter was reported orally at police station, Hathgaon by village chowkidar Ram Ratan P.W. 3 on the same day at 1.30 P.M. wherein numbere was named.
In any event, for a long time numberwitness supposedly spoke about accused Awdhesh.
The parameters for dealing with an appeal against judgment of acquittal have been laid down by this Court in several cases.
Sheo Sakhi, the High Court numbericed that she did number know Awdesh, yet stated as if she was acquainted with him.
With reference to the evidence of Smt.
He was on inimical terms with the deceased and PW 2.
But till that time also the names of Awdhesh, Babu Singh and Jhallar Singh were number disclosed.
He met injured Hiralal, Mahesh Chandra and Smt.
It is pointed out that the witnesses on hearing about the dacoity had rushed to the police station and had numberoccasion to know the names of accused persons.
Learned companynsel for the appellant State submitted that the reasoning indicated by the High Court does number justify the order of acquittal.
Most of the reasonings are based on surmises and companyjectures.
On companypletion of investigation charge sheet was submitted.
It was pointed out that though PW 2 was shouting that three named persons were companymitting dacoity, in the report submitted by PW 3 the names were number given.
Mahabiria on the way.
He got the said injured sent for their medical examination with chithi majroobi.
The companystable who was escorting the injured then gave information at police station about the death of Hiralal, whereupon case was companyverted to one under Section 396 IPC.
The respondent was sentenced to imprisonment for life by the said judgment but he was acquitted of the charge relatable to offence punishable under Section 314 IPC.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court setting aside the companyviction of the respondent for offence punishable under Section 396 of the Indian Penal Code, 1860 in short the IPC as was recorded by learned Vth Additional Sessions Judge, Fatehpur.
