Point of Law:
In absence of a singular charge under Section 302 IPC against the appellant sans the assembly, we are of the unhesitant opinion that his conviction for dacoity with murder punishable under Section 396 IPC, in the facts and circumstances of the case, cannot be sustained in law. The attention of the courts below we understand had not been drawn to this vital and determinative facet of the case.

JUDGMENT :

1. Heard Sri Pranvesh, Advocate holding brief of Sri Jadu Nandan Yadav, learned counsel for appellants, at length, on facts and law both, and learned A.G.A. for State.

2. This Criminal Appeal under Section 374 of Criminal Procedure Code (hereinafter referred to as “Cr.P.C.”) has been filed by three appellants, namely, Balbir, Mohar Pal alias Chhakauri and Lala Ram against judgment and order dated 11.03.1983 passed by Sri D.C. Srivastava, Judge Special Court (Dacoity), Kanpur Dehat in Session Trial No. 467 of 1981 (State vs. Balbir and others) convicting appellants, Balbir and Lala Ram under Section 395 IPC and appellant, Mohar Pal alias Chhakauri under Sections 395 read with 397 IPC and sentencing appellants, Balbir and Lala Ram to five years rigorous imprisonment and appellant, Mohar Pal alias Chhakauri to seven years rigorous imprisonment.

3. As per first Informant, PW-1, Raj Kumar, the prosecution story is, that, in the intervening night of 26/27.06.1981 appellants alongwith four others committed dacoity in three houses in Village Badra Majra Bakauthia, Police Station Kakwan, District Kanpur Dehat. At about 11.00 O’clock four dacoits jumped into the Courtyard of First Informant and opened door, which allowed other six dacoits to enter into the house. They started beating the inmates and looted belongings. PW-1 ran away and raised alarm. After committing dacoity in the house of First Informant all of them looted houses of Ochhey Lal and Ganga Ram in the same village. They also used firearm in the course of dacoity. As per prosecution story in the light of lantern, torches and fire of Pual, the witnesses saw the features of known dacoits and also recognized three known dacoits, who are appellants. In support of their case prosecution examined PW-1, Ram Kumar, scriber of complaint; PW-2, Sheo Singh, an eye witness of dacoity; PW-3, G.P. Thapalyal, Executive Magistrate, who conducted identification parade; PW-4, S.O. R.K. Verma; PW-5, Head Constable, Sri Krishan, who are formal witnesses and PW-6, SI, Ram Bilas, who was Investigating Officer of the case.

4. After filing of charge sheet charges were framed against appellants, who pleaded not guilty and claimed to be tried on merits.

5. Trial Court after considering the evidence and other material on record convicted appellants, as mentioned above. Relevant finding of Trial Court are as follows:

“35. Thus, after considering the statements of these two witnesses an irresistible conclusion can be drawn that the three accused facing trial before me, were also amongst the decoits, who had committed dacoity in the night of occurrence, in the house of Raj Kumar. Since the evidence on record, does not justify two views, the view in favour of the accused in the circumstances of the case cannot be taken. The case of Kali Ram vs. State of H.P. AIR 1973 (S.C.) 2773 is thus distinguishable on facts.

36. To sum up, it can be said that the prosecution has successfully established that the three accused committed dacoity in the house of Raj Kumar in the night of occurrence. It appears that after disclosure of a material fact by Raj Kumar in his cross-examination that accused Mohar Pal alias Chhakauri fired from his gun at the time of leaving his house, the charges under Section 395 IPC was amended against accused Mohar Pal alias Chhakauri and was regulated with charge under Section 397 IPC. I do not find any reason to disbelieve Raj Kumar on the point that Mohar Pal alias Chhakauri had used fire-arm, during the course of dacoity. The situation would have been different if the witness would have given voluntary statement on the point. On the other hand, the fact was brought on record by the effort of the defence counsel and to my mind, such statement, cannot be called as belated nor it can be rejected on ground of being un-reliable. Thus, to my mind, the prosecution has been successful in establishing the charge under Section 395 IPC against accused Balbir and Lala Ram and the charge under S