- (1.) THIS appeal arises out of the judgment and order relating to the conviction and sentences of the appellants in Sessions Trial No. 340 of 1979 connected with Sessions Trial No. 120 of 1980 convicting the appellants under Sections 147, 148, 149 and 307 I.P.C. respectively as referred to in the judgment on the grounds that the charges were proved beyond reasonable doubt that they had attempted to fire at a police party, and that a recovery had been made of certain items which appeared to be subject of a loot that was being distributed in the odd hours of the morning of 29th April 1979 at 4.30 A.M.
(2.) THE FIR was lodged by the Sub-Inspector of Police himself whereafter a charge sheet was filed against all five of the accused. The prosecution examined Sri B.K. Mishra, Sub- Inspector of Police as P.W. 1 and Sri Sarnam Singh, Sub- Inspector of Police as P.W. 2. The recovery memo and recovery of articles and the recovery of a torch from the sight were made exhibits. The charges were framed on 28th March, 1980 and after the prosecution witnesses were examined, the deposition of the accused was recorded under Section 313 Cr.P.C. on 27.2.1982. Five witnesses appeared as D.W.1 to D.W.5 for the defence. The learned trial court on the basis of the evidence available convicted all the appellants and sentenced them accordingly. The prosecution story is that while the police party headed by Sri Pooran Singh Inspector of Police and accompanied by Sri D.K. Mishra and Sri Sarnam Singh Sub-inspector and other constables, were undertaking a police patrol when they witnessed the alleged assembly of these persons who were 7-8 in number, and they heard a call that all the persons were alerted by naming Dharma that the police has arrived. The police party surrounded them and ultimately caught hold five persons who have been charged. The recovery of certain looted items, country made pistols and cartridges have also been recovered. The FIR discloses the details of the alleged incident which was sought to be supported by the recovery memo and the statement of the prosecution witnesses.
(3.) LEARNED counsel for the surviving appellants, as the appellant Nos. 3 and 5 have died during the pendency of the appeal, Sri Shashwat Shukla contends that all the appellants have been falsely implicated and he submits that it was done on account of the alleged involvement of Banni Singh one of the constables of the police raiding party who is the brother- in-law of one Leela with whom the appellant No.1 Dharm Singh had enmity. He submits that this fact is writ large on the basis of cross examination of the prosecution witnesses and which has also been noticed by the trial court, but a perverse finding has been recorded in order to retain a conviction. He further contends that the alleged recovery is absolutely false inasmuch as no recovered item was exhibited before the trial court which fact has been admitted in the judgment itself. He further submits that none of the alleged recovered items were ever connected with any case of loot and, therefore, this evidence was concocted with a view to implicate the applicants. Their presence at the scene of occurrence at 4.30 A.M. is false, therefore, completely, manufactured.;