Sharma, J. — This is an appeal by Hindu Singh, Udey Singh and Bheron Singh who have been convicted by the Additional Sessions Judge, Jhalawar under sec. 395 read with sec. 397 of the Indian Penal Code and have been sentenced to seven years rigorous imprisonment and a fine of Rs. 2000/-each, and in default have been given one years rigorous imprisonment.

2. The case for the prosecution is that on the 28th January, 1950 a dacoity took place at the house of Onkar Lal in village Fatehpur in Jhalawar District at about 8-30 P. M. The dacoits numbered about thirteen and the three appellants were the dacoits. Some of the dacoits were armed with guns and others with lathies. Onkar Lal was more harshly treated and his beared was burnt. Amar Singh, his nephew was fired at by Udey Singh and received injury in his leg. Considerable amount of property valued at about Rs. 3,000/- was taken away.

3. A report was lodged at the Police Station Pirawa at about midnight by Mathura Lal constable Choki Kothi. Hindu Singh was arrested on the 9th February, 1950 and was put up for identification on the 13th February, 1950 before Mr. S.P. Mani Magistrate First Class Pirawa. Udey Singh was arrested on the 4th February, 1950 and was got identified by the Sub-Inspector on the date before himself. Udey Singh and Hindu Singh alone were challaned with other accused who were discharged and with whom we are not concerned. Subsequently Bheru Singh was also arrested on the 10th June, 1950 and was put up for identification on the 15th June, 1950 and thereafter he was also challaned. The accused was committed by Mr. Abdul Wahid Khan Sub-Divisional Magistrate, Jhalawar to the court of Additional Sessions Judge, at Jhalawar. The accused were to stand their trial under sec. 395 read with sec. 397. All the accused denied the charge. Hindu Singh and Udey Singh pleaded that they were related to Onkar Lal and his nephews Amar Singh and Kanji who were known to them from before. Udey Singh also pleaded that he was on inimical terms with Onkar Lal. Bheru Singh pleaded that he had travelled with the prosecution witnesses who had identified him two or three days before he was identified. All the accused pleaded alibi.

4. The learned Additional Sessions Judge did not accept the prosecution evidence about the piece of cloth which was alleged to have been taken away at the time of dacoity. He however, based conviction only on the identification of each of the accused by some witness. All the three accused have preferred this appeal against their conviction and sentence.

5. It was argued by Mr. Bajpai appearing on behalf of the accused that the only evidence which has been relied upon for the conviction of the appellants is identification evidence. Hindu Singh was identified only by two witnesses namely Onkar Lal and Kanji who are closely related to him. Both of these witnesses have not been straight-forward in their evidence and have avoided answering certain questions which must have been in their knowledge. Hindu Singh was related to Onkar Lals family and was known to the identifying witnesses from before. The occurence took place at about 8-30 in the night and it was very difficult for these two witnesses to clearly recognise the accused at the time of the offence, during the heat and excit-ment of the event. As regards Bheru Singh it was argued that the same arguments apply as in the case of Hindu Singh. Bheru Singh stated before the Magistrate that all the identifying witnesses travelled along with him in a bus only three or four days before the identification parade. His identification was also very suspicious. As regards Udey Singh it was argued that it has been established that he was on inimical terms with Onkar Lal and that he was very well known to the family of Onkar Lal as he was related in more than one way with the family. It was admitted by Onkar Lal that he knew this accused from before. The fact that his name was not mentioned in the police report throws a good deal

Click Here to Read the rest of this document