- (1.) This is an appeal against the judgment and order dated 21st of May, 1999 passed by the learned Judge of the High Court of Judicature at Allahabad in Criminal Appeal No.2921 of 1980 whereby the High Court had allowed the appeal of the accused/respondents and set aside the judgment and order dated 29th of November, 1980 passed by the Additional Sessions Judge, VIth Court at Etah in Sessions Trial No.406 of 1978 (State of U.P. vs. Punni and 5 others) convicting the accused/respondents of the offences under Sections 399 and 402 of the Indian Penal Code (for short "the IPC") and sentencing each one of them to undergo rigorous imprisonment for a period of 4 years and 2 years respectively and further convicting each one of them under Section 27 of the Arms Act and sentencing them to undergo rigorous imprisonment for a period of 6 months. However, all the aforesaid sentences were ordered to run concurrently.
(2.) The relevant facts leading to the filing of this appeal may be narrated, in a nutshell, which are as follows: -
(3.) The case of the prosecution, inter alia, was that on 15th of October, 1977, one Ram Charan Singh, Station Officer (S.O.) - Police Station Sikanderpur Vaish, Assistant Sub-Inspector (A.S.I.) Gaya Prasad along with constables Bhanwar Singh, Lakhan Singh, Mulaim Singh, Dina Nath, Jamuna Prasad, Rajendera Singh and Head Constable Hajari Singh were returning to the Police Station from the Patrol duty. When they reached near village Nagla Abdal at about 8 p.m., a reliable informer notified the S.O. Ram Charan Singh that the gang of Punni Habda shall assemble in the grove of Pandit Lakhan Singh of Rani Damer at about 1:00 am to commit dacoity and would loot Nagla Karan. On receiving this information, the S.O. and the A.S.I. had called for two witnesses, namely, Nakdey and Sri Pal from village Nagla Abdal and also procured their licenced firearms through Constable Bhanwar Singh. Thereafter, they came to village Rani Damer wherefrom witnesses, namely, Ranvir, Ram Prakash, Deo Singh and Soran were also taken with them. Out of these witnesses, Ram Prakash (PW 2) was carrying his licensed gun. Thereafter, all of them came to the Madha of Pradhan in village Rani Damer where the witnesses were told the purpose of calling them and the necessary instructions pertaining to dacoity prevention scheme were given. A search was also made on all the persons present to ensure that none possessed any illegal weapons. Thereafter, two parties were formed by the S.O., one in his leadership, which comprised Ram Prakash (PW 2) and the other in the leadership of Gaya Prasad, A.S.I. (PW 1). At 11.00 p.m., the two parties had reached near the grove of Pandit Lakhan Singh. The party headed by the S.O. positioned themselves on the north of the grove while the other party positioned on the east of the grove. While they were waiting there, some persons entered the grove and started conversing and smoking Biri and cigarette. One of them was over heard saying "Nagla chhota hi hai. Ustad nahin aaye hain. Darney ki koyee bat nahin hai. Chalo Chalkar loot lengey." On hearing this conversation, the S.O. and the witnesses were convinced that the assembled persons were a gang of dacoits and that they had assembled there to commit dacoity. The S.O. then challenged the dacoits telling them that they were under siege and commanded them to surrender their weapons, lest they would be done to death. A V.L.P. shot was fired by the Head Constable, whereupon these persons started to run away from that site. The police party arrested 6 persons while 3 managed to escape. The arrested persons were questioned and they revealed their names to the police. On search being taken, one gun and 8 live cartridges were recovered from Punni, one Tamancha and 4 live cartridges were recovered from Munshi, one Tamancha and 5 live cartridges and one torch were recovered from Saligram, one Tamancha and 3 live cartridges were recovered from Sultan, one Bhala and a torch were recovered from Ram Murti, all without licence, and a Bamboo lathi was recovered from Ram Bharose. The empty V.L.P. shot, half burnt pieces of Biris and match sticks were also collected. The recovery memos were prepared on the spot and the collected articles were sealed in separate bundles. Thereafter, the police party returned to the Police Station alongwith the accused and the recovered articles. On 16th of October, 1977, a chik report was prepared in accordance with the dictation given by the S.O. and a case was registered under Sections 399 and 402 of the IPC and separate cases were registered under Sections 25 and 4/25 of the Arms Act. The investigation was completed and the charge sheets were prepared and submitted to the concerned Magistrate who had committed the case to the Court of Sessions.;