Alok Singh, J. -
(1.) PRESENT appeal is directed against the judgment and order dated 31.07.2010, passed by Additional Sessions Judge/Ist FTC, Haridwar, whereby appellants were held guilty for the offence punishable under Section 395 and 412 IPC and were sentenced to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs. 10,000/ - each and in default, in making payment of fine, to undergo additional imprisonment of 06 months, for the offence punishable under Section 395 IPC; sentenced to undergo rigorous imprisonment for a period of 05 years and to pay fine of Rs. 10,000/ - each and in default, in making payment of fine, to undergo additional imprisonment of 06 months, for the offence punishable under Section 412 IPC; with the stipulation that both the sentences shall run concurrently. Brief facts of the present case, inter alia, are that PW2 lodged an FIR with Police Station Bahadarabad on 30.09.2008 stating therein that in the intervening night of 29th/30th September, 2008, 8 -9 criminals came at his petrol pump at about 03:00 a.m. and after bolting chawkidar Latif S/o. Ibrahim (PW3), salesman Satendra Kumar (PW1), salesman Deepak Kumar (PW4) in the toilet of petrol pump, they committed loot of Rs. 12,000/ -, mobile oil costing about Rs. 3,000/ - and copper coil of generator; having received the information, PW2 came to lodge the FIR. Investigation was handed over to Ganesh Prashad Bauthiyal (PW9). On 24.10.2008 S.O. Bahadarabad, Surya Bhushan Negi (PW7), S.I. Ajay Kumar (PW6), S.I. Raj Kumar, Constable Ashwani Yadav, Constable Kapil Yadav in a jeep being driven by Constable/Driver Vinod Kumar, left the thana vide report No. 37 at about 09:15 p.m. for patroling and maintaining law and order duty; when police party reached village Sohalpur, police informer passed on secret information that gang of Ram Kumar @ Boby, who was involved in loots at petrol pump of Bhagwanpur and Bahadarabad, was present in the Grove Garden of Naresh and members of the gang were planning to commit dacoity at petrol pump of Imlikhera road; having believed the informer, S.O. Bahadarabad was requested on phone to reach at Gatepur Tirana; S.O. Bahadarabad reached at Gatepur Tirana; thereafter all of them proceeded towards the Grove Garden of Naresh; police personnel could hear that members of the gang were discussing that they could not commit dacoity since long, therefore, they would commit dacoity at petrol pump, Imlikhera road; police party gave lalkara; three criminals succeeded in running from the spot while two miscreants were apprehended by the police party; on being asked one of them disclosed his identity as appellant No. 1 while another disclosed his identity as Sahzad, who was acquitted by the learned trial court. From the possession of the appellant No. 1, one country made pistol of 315 bore along with two live cartridges and Rs. 20,500/ -were recovered while from the possession of the another accused Sahzad, one country made pistol of 12 bore and two live cartridges of 12 bore and Rs. 18,000/ - were recovered; appellant No. 1 confessed before the police party that Rs. 18,000/ - were looted from Bhagwanpur petrol pump while Rs. 2,500/ - were received by him as his share from the looted amount of Bahadarabad petrol pump; in the same way, another accused Sahzad confessed that Rs. 16,500/ - were looted from the Bhagwanpur petrol pump and Rs. 1,500/ - were received by him as his share from the looted money of Bahadarabad petrol pump. Both the miscreants i.e. appellant No. 1 and co -accused Sahzad also told the police party that other miscreants, were Afzal and two friends of Afzal; thereafter Afzal was also arrested on 31.03.2009; from his possession, Rs. 150/ - and one sealed cane of HP Cruise Motor Oil, two cane of HP Milcy 40 and copper coil were recovered. Afzal (appellant No. 2) confessed before the police that he committed loot/dacoity at Bahadarabad petrol pump along with Ram Kumar @ Body, Sahzad R/o Baredi Rajputan, Chaman @ Faiyaz R/o Bhauri Daira and Safakat R/o Mustafabad and two persons brought by Chaman and Safakat.
(2.) HAVING investigated the matter, police filed the charge -sheet against the appellants as well as against co -accused Sahzad. Charges were framed for the offence punishable under Sections 395, 412 IPC. Accused denied the charges and claimed trial. To prove the prosecution story, salesman Satendra Kumar (PW1), informer Hari Om (PW2), Chawkidar of petrol pump Latif (PW3) another salesman of the petrol pump Deepak Kumar (PW4), Sahbuddin (PW5), SI Ajay Kumar (PW6), S.I. Surya Bhushan Negi (PW7), Vinod Singh Gosain (PW8), S.O. Bahadarabad Ganesh Prasad Bothiyal (PW9), Mahendra Singh (PW10), Harish Chand Kandpal (PW11), Ashish Joshi (PW12) were examined. Thereafter statements of the accused were also recorded under Section 313 of the Code of Criminal Procedure.
(3.) LEARNED trial court, having perused entire material made available on record, was pleased to convict and sentence the appellants and was further pleased to acquit the co -accused Sahzad. Feeling aggrieved, appellants have preferred present appeal.;