JUDGMENT :

Raj Beer Singh, J.

1. This appeal has been preferred against the judgment and order dated 15.12.1981, passed by the IVth Additional Sessions Judge, Bijnor in S.T. No. 111 of 1979 (State vs. Birju and others), under Sections 395, 397 and 412 IPC, whereby appellant Birju and co-accused Om Prakash, Umesh Kumar and Faiza were convicted under Section 395 IPC and they were sentenced to eight years rigorous imprisonment along with fine of Rs. 2,000/-under Section 395 IPC. In default of payment of fine, the accused-appellant has to undergo six months additional rigorous imprisonment.

2. During hearing of this appeal, a report was called from the office whether any appeal of co-accused Om Prakash, Umesh Kumar and Faiza is pending and it was reported that as per the official website data, only present appeal has been preferred against ST No. 111 of 1979, and no other appeal relating to S.T. No. 111 of 1979 is pending.

3. Case of prosecution is that on 09.01.1979 one State Transport Bus No. U.S.T. No. 5205 was being plied by driver Hari Singh from Dehradun to Kotdwar. At around 17:00 hours the bus started from Haridwar to Najibabad and at around 18:25 hours when the said bus reached at some distance from village Mandawali, suddenly one of the passengers fired a shot in the bus and threatened that bus be stopped. The driver Hari Singh stopped the bus and thereafter 2-3 persons, who were traveling as passengers, started snatching the gun from the constable of RTO, who was sitting among passengers and in that grappling one of the miscreant fired a shot, which hit said constable and the miscreants snatched his gun. There were total seven miscreants and they started robbing the passengers of bus and snatched watches, cash and transistor etc from several passengers. They have also snatched the cash of Rs 341/ including government cash of Rs 319/ and other valuables from the complainant Om Prakash (bus conductor). Similarly they snatched Rs. 300/, purse and one belt from Shakti Dhar Pathak, Traffic Superintendent, who was also traveling in the same bus. After committing dacoity, all seven miscreants left the bus and went away. Thereafter, the bus was taken to police station Najibabad. The complainant has also stated about physical description ¼gqfy;k½ of the miscreants and he reported the matter to police by submitting Tehreer Ex. Ka-1, and on that basis a case was registered against seven unknown bandits under Sections 395, 397 IPC vide First Information Report Ex. Ka-9. One Jhau Ram and Narayan, both constables of RTO office, who have sustained injury, were sent for medical examination. Jhau Ram has sustained fire-arm wounds and he examined vide MLC Ex. Ka-2 and Narayan was examined vide M.L.C Ex. Ka-3.

4. During investigation, PW-21 S.I. V.N. Verma inspected the spot and recorded the statements of victims. He was informed that police of police station Nangal has arrested some persons connected with this dacoity and that some looted property has also been recovered from them. PW-21 S.I. V.N. Verma reached there and interrogated the three accused persons, namely, Birju (appellant), Umesh Kumar and Om Prakash, who were arrested by police of Nangal police station, and the contents of recovery memo, prepared by police of Nangal, were taken down in case diary. Initially accused-appellant Birju has told his name as Mahesh to conceal his identity. Accused-appellant Birju has also disclosed the name of one Shyam Lal and Daya Ram Tyagi amongst his associates in the said incident. On 15.01.1979 Birju was taken into police custody remand with permission of Court and during this period he was kept Baaparda (face covered). Co-accused Faiza and one Mehboob were also arrested. On 06.02.1979 test identification parade of appellant Birju and co-accused Om Prakash, Umesh Kumar and Faiza was held in district jail Bijnor and he was identified vide identification memo Ex. Ka-31. On 20.03.1979, the identification of recovered property was also made in presen