K.K.Birla, J. - (1.) These two appeals arise out of the order dated 8.7.1982 passed by Sri V. K. Agarwal, Addl. Sessions Judge, Dehradun convicting Sarva Sri Kale and Ram Dhiraj alias Dingding for various offences.
(2.) In brief, Shiv Kumar and Sewa Ram (P.W. 2) were residing in house No. 31 Darshani Gate, Dehradun. Sri Shiv Kumar was the landlord and Sri Sewa Ram was a tenant in a portion of this premises. At about 8.30 P.M. on 7-11-80 (Dipawali evening) five persons (these accused and one Narendra alias Majnu) entered the house. One person(Trilok Singh) armed with Khukhri remained standing on the main door and the remaining four started looting the inmates. They snatched chain from the neck of wife of Sewa Ram and removed the watch of Sewa Ram and they also forcibly removed the golden bangles from the hands of wife of Shiv Kumar. When this dacoity was being committed somebody telephoned at 8.50 P.M. in the Control room at P. S. Kotwali.'This information was received by S. I. Vijay Pal Singh (PW 3) who immediately telephoned at Chauki Lakhibagh to S. 1. Muzaffar Ali (PW 1) regarding this. During the commission of dacoity Km. Manglesh (Kamlesh) managed to escape from the house. Shiv Kumar was coming back to the house after doing Pooja at his shop. Km. Manglesh met him on the way and told him about the commission of the incident. He thereupon rushed to the out-post Lakhibagh in a three wheeler. S. I. Muzaffar Ali alongwith the police force and Shiv Kumar went to the spot. Some force was sent from Kotwali as well. When they reached the spot, the dacoity was being committed. Seeing the police force the accused tried to escape. Sri Trilok Singh armed with Khukhri material Ext. Ka-13 was apprehended. While trying to escape Ram Dhiraj and Narendra fired from their country made pistols on the police party but they misfired. A country made pistol Ext. I having a missed cartridge Ext. 2 in its barrel, a live cartridge Ext. 3 and one pair of golden Karas Ext. 4 were recovered from the possession of Ram Dhiraj. A country made pistol Ext. 5 having two missed cartridges Exts. 6 and 7 in its Garari and four live cartridges Exts. 8 to 11 and one golden chain Ext. 12 were recovered from the possession of Narendra. The other two dacoits also tried to escape out of whom Kale appellant alongwith Khukhri (Ext. 13) was apprehended on the spot. The fifth person escaped and was identified as Rais Ahmad who was known to the witnesses from before. The appellants were apprehended after using lathis and received injuries. They were later on, medically examined. The recovered articles were sealed and furds were prepared separately after observing the formalities.The accused and the recovered articles were taken to the police station where Shiv Kumar lodged a written report about the incident. After investigation the chargesheet was submitted by S. 1. Swaroop Singh (P.W. 4). The necessary sanction for prosecution under the Arms Act was obtained.
(3.) Narendra alias Majnu had absconded during the pendency of the trial. Sri Ram Dhiraj was tried for the offences under Sections 395/397395/398, 307 and 412 LP.C. and under Section 25 (1) of the Arms Act. Kale and Trilok Singh were tried for the offences under Sections 395/397, 395/398 I.P.C. and under Section 25 (4) of the Arms Act. Rais Ahmad was tried for the offence under Section 395/397 I.P.C.;