KALIMULLAH KHAN, J. - (1.) THIS criminal appeal has been filed under section 374 (2) Cr.P.C. against the judgment and order dated 5.2.1982 passed by the IVth Additional Sessions Judge, Mathura in S.T. No. 570 of 1978 (Crime No.161 of 1977) under section 395 and 412 I.P.C. P.S. Baldeo, District Mathura ' State Vs. Dhakku and others' arising out of committal order dated 19.12.1978 passed by the then IIIrd Additional Munsif Magistrate, Mathura whereby the learned Additional Sessions Judge has convicted and sentenced each of the appellants (1) Dhakku S/o Ram Dayal, R/o Village Lokera, P.S. Sadabad at present Sailkhera, P.S. Baldeo, District Mathura (2) Balaram S/o Hari Singh, R/o Village Hathkali, P.S. Baldeo, District Mathura (3) Layak Singh S/o Gulab Singh, R/o Village Lokera, P.S. Sadabad, District Mathura (4) Balvir Singh S/o Mishri Lal R/o Village N. Mauji, P.S. Sahpau, District Mathura under section 395 I.P.C. with R.I. for 7 years on the ground that findings of guilt recorded by the learned trial court against them is against the weight of evidence on record and illegal. They are based on conjectures and surmises.
(2.) ALL the aforesaid four accused appellants were charged under sections 395 and 412 I.P.C. on 22.7.1981. They pleaded not guilty and claimed their trial. However, none of the accused has been convicted and sentenced under section 412 I.P.C. against which no criminal appeal has been preferred. During the pendency of the appeal accused Balvir Singh (appellant no. 4) has died, therefore, his appeal has stood abated vide order dated 6.8.2009. The case of the prosecution is that there is one village Patalauni within the police circle of P.S. Baldeo, District Mathura which is about 4 miles far from the police station, and therein lives one Mormukat S/o Munni Lal, Brahmin, who is teacher by profession and is on the rolls of Rashtriya Higher Secondary School, Patalauni. On 4.10.1977 Sri Dharmvir Singh, Inspector, Crime Branch, C.I.D., Agra was posted as S.O., Sadabad. He received information through special informer at 6.20 P.M. that the gang of Dhakko dacoit would swoop village Bisawar within the police Circle of P.S. Sadabad or village Patalauni within the Police Circle P.S. Baldeo the same night some time after 9.00 P.M. substance of this information was noted down vide G.D. report No. 21 -copy Exhibit Ka -29, and believing this information to be true, he informed his counterpart at Baldeo by wireless. He himself left for village Bisawar with necessary force to guard village Bisawar. S.O. Baldeo was Sri Shanti Prakash Tiwari P.W. -5 who was out of station in connection with court evidence at Agra and during his absence Sri Pooran Lal, S.I. II, P.S. Baldeo had left for village Patalauni with necessary force. Sri Tiwari, S.O., Baldeo could return back at 11 -25 P.M. and then he learnt that the force had left for village Patalauni on a tip off given by S.O. Sadabad. This force of P.S. Baldeo had reached village Patalauni at 7.30 P.M. and it took into confidence the villagers, sounded a waring about apprehended swoop, and alerted them to be vigilant. At about 10.30 P.M. a gang of about 9 bandits variously armed was spotted by the reporter Mormukat, coming from the side of the house of Rajjilal. His wife Smt. Shanti Devi P.W. -4 left the house immediately with her two children and took shelter in the house of one Bangali, whose wife gave her shelter, and concealed them in some part of the house. Mormukat apprehended danger, fled away from his house, and his house was invaded by the miscreants, and they fired several shots. Sanehi Lal collected foons, and set the heap of foons ablazed. Dacoits were armed with torches, and a lantern was litting inside the Verendeh of his house. Villagers namely Neksa, Bangali, Mangla and Sanehi Lal appeared on the scene armed with lathis and torches etc. The fires of badmashes, hit Sanehi Lal and Neksa who were rendered injured. Meanwhile the police also resorted to firing, and badmashes after ransacking the house for about 5 to 10 minutes, immediately left it, because of mounting pressure. They took away one box and fled away towards village Selkhaira. Mormukat prepared written report Exhibit Ka -3 and took it to police station Baldeo where it was made over at 2.00 A.M. on 5.10.1977 and on its basis a case was registered under section 395, 397 I.P.C. against unknown persons. Sri Tiwari, S.O. Was present in the police station and he immediately recorded the statements of Sidhhgopal constable, clerk and Mormukat, the reporter, and left for the spot with necessary force alongwith the reporter. The reporter made over a supplementary report of the looted property Exhibit Ka -4. Site was inspected and site plan Exhibit Ka -10 was prepared by the I.O. The house was found ransacked and lantern was seized vide memo Exhibit Ka -5. A heap of ash was also found by Sri Tiwari out of which he took a sample Exhibit Ka -15 and prepared memo Exhibit Ka -11. The I.O. also recovered 6 empties from the darwaza, and they were seized vide memo Exhibit Ka -12 and they were duly sealed up. The statement of Smt. Shanti Devi was recorded, and the torches of the witnesses were inspected, and they were made over to their respective owners vide Supardginama Exhibit Ka -13. The police force which had resorted to firing made over the empties which were seized vide memos Exhibit Ka -14 to Ka -19. Statement of S.I. Pooran Lal was recorded and thereafter the S.O. Left with the police force for village Bisawar where he accosted S.O. Dharmvir Singh of P.S. Sadabad with his force on Jeep. The two police officers discussed the matter, and they left in search of the dacoits who had dacoited the house of Mormukat and at about 5.00 P.M. they reached Canal Culvert of village Tiket. The entire force was divided into two parties, and they took up positions on eithr side of the Patari. At about 6.30 P.M. two persons were noticed each carrying a Jhola in his hand, and they were intercepted and asked to stop, whereupon they tried to flee away and were chased and apprehended. They disclosed their names as Layak Singh and Balvir Singh. Their personal searches revealed as following: 1) Layak Singh: 1 Dhoti janani Exhibit -10, 1 Dhoti Mardani Exhibit -11, 1 Blouse green Exhibit -12, 1 blouse red Exhibit -13 and 1 kurta terrycot Exhibit -14. Memo Exhibit Ka -20 was prepared to evidence this recovery by the I.O. Sri Tiwari and the recovered materials were sealed in the Jhola of Layak Singh. 2) Balbir Singh: 1 woolen coat red in colour Exhibit -6, 1 white kurta Exhibit -7, 1 Janani dhoti Exhibit -8, Bush -shirt Terrycot Exhibit -9. Memo Exhibit Ka -21 was prepared by the I.O. Sri Tiwari to evidence this transaction and the recovered materials were duly sealed up in a Potli. Thereafter, he recorded the statements of Layak Singh and Balbir Singh, and the accused were made Baparda on the spot, and then the police force left for police station alongwith these accused, where the two captives were put behind bars, the gate of Hawalat was fully covered up with a blanket, the Sentry on duty was given necessary directions to keep the two accused Baparda, and they too were informed that they will be subjected to test identification proceedings, and they should keep themselves masked. The two sealed bundles were deposited in the Malkhana of P.S. Sadabad. Entries were made in the G.D. vide report no. 24 of 21 -15 hours dated 5.10.1977 whose copy is Exhibit Ka -22. On 6.10.1977 I.O. Tiwari and S.O. Dharmvir Singh with necessary police force invaded the house of Balram in the city of Mathura in Mohalla Jagnnathpuri but he was not available. They immediately, left for Sadabad, and from there rushed up to village Lokera and one Sahab Singh, a public witness was picked up from the township as also Komal Singh and they were apprised the purpose behind their picking up. It was found on inquiry that Dhakkoo was not available at his house, and police force left village Lokera, and on its way back, and on the chouraha of Mirpur and Moniya, at about 5.00 A.M. they noticed two persons who asked to stop, but they tried to run away, but their attempt was foiled and they were apprehended. On an inquiry they revealed their names as Balram and Dhakko. Their personal searches were taken and they revealed as follows: 1) Balram: 1 woolen coat Ex. 3, 1 Pant Terrycot Ex.4 &1 Janani Dhoti Terrycot Ex.5. 2) Dhakko: 1 Green Coat Ex. 1. and 1 Pant Ex. 2. Memos Exhibit Ka -23 and Exhibit Ka -24 were prepared relating to Balram and Dhakko and the recovered materials were sealed up in their respective bags, copies of the memos were made over to the accused concerned and they were made Baparda then and there, and their statements were recorded. Dhakko was taken back to his house and on his pointing out the police recovered booty of several dacoites. These recovered materials were duly sealed up and were taken to police station Sadabad, where they were deposited in the Malkhana and entries were made in the G.D. vide report no.14 dated 6.10.1977 at 10 -30 A.M. copy is Ex. Ka. -25. On 28.4.1978 Shri L.N. Saxena, the then Special Ex. Magistrate, Mathura conducted test identification proceeding of the recovered properties which were brought from Sadar Malkhana by H.C., Om Prakash, the then Court Moharrir of Shri L.N. Saxena, Thekedar Kalicharan brought the articles to be mixed up in sealed bundles with seals intact, as also a sample of seal. The sealed bundles were brought by the aforesaid contractor, and they were opened in the presence of Sri Saxena in his courtroom, and the suspected articles were mixed up with the articles brought by the contractor and the ratio was 1:4. The articles mixed up duly resembled the suspected articles. Necessary precautions were taken to cover up the prominent marks and the witnesses participated in the T.I.P. were Mormukat, his wife Smt. Shanti Devi. Mormukat identified the items 1 to 13 correctly but failed to pick out item no. 14. Smt. Shanti Devi correctly picked out articles at item no.2, 3, 5, 6, 8, 9, 10, 12, 13 and 14. Sri Saxena prepared memo in his own hand and signatured Ex. Ka. 26 in the presence of A.P.O. Sri Surendra Singh. Thereafter, the suspected articles were sealed up with the court seal and taken back to Sadar Malkhana and deposited there by Court Moharrir. The accused were put up in T.I.P. Sri L.N. Saxena was the Spl. Ex. Magistrate, who conducted these T.I.Ps. On 9.11.1977 in District Jail, Mathura where in the suspects were Dakko, Balram, Layak Singh, Balvir Singh and one Resham alias Roshan. The net result was that only Mormukat was able to pick out correctly Dhakko, Blaram, Layak Singh and Balvir Singh. He could not pick out the 5th suspect Resham alias Roshan, and committed mistake. Witnesses Munshi, Mangla, Kinori could not pick out anyone and committed no mistake. Memo of identification is Ex. Ka.32. On completion of investigation charge sheet was submited in court which is Ex. Ka.35 dated 28.5.1978. To substantiate its case prosecution relied on oral as also documentary evidence. The documents are Ex. Ka.1 to Ex. Ka. 36 and material Exhibits are 1 to 22. Witnesses examined are Dr. J.C. Agrawal, P.W. 1, Mormukat P.W.2, C.C. Sidhgopal Pandey P.W.3, Smt. Shanti Devi P.W.4, Shanti Prakash Tiwari P.W.5, H.C. Om Prakash P.W. 6, Kalicharan Thekedar P.W.7, C. Natthi Lal P.W. 8, Dharmvir Singh, Inspector Crime Branch C.I.D., Agra P.W.9, C. Moti Singh P.W.11, M.H. Nabab Singh P.W. 12, Komal Singh P.W. 13, Public witnesses who had witnessed the arrest of Dhakko and Balram; Sri Surendra Singh A.P.O., P.W. 14, Gajraj P.W. 15, Gyanendra Prkash S.I., P.W. 16 and H.C. Ramgiri, P.W. 17. Accused were examined under section 313 Cr.P.C. wherein they stated as follows: i) Dhakko (50) Formerly r/o village Lokera, P.S. Sadabad & presently r/o Selkhaira, P.S. Baldeo, District Mathura: Stated nothing about the factum of dacoity and pleaded ignorance about it. He denied his arrest at the place and in the manner as alleged by the prosecution and added that he was whisked away from his house in village Lokera and was taken to police station where incriminating materials allegedly recovered from him were planted. He remained unmasked. Witness Mormukat knew him full well from before and all residents of village Patlauni know him. Selkhaira and Patlauni are neighbouring villages and the witnesses who participated in T.I.P. Knew him from before. One Girraj of village Kharba is inimically disposed towards him and he was the instrumental in his arrest. He is a police puppet and also a police broker. ii) Layak Singh (45) S/o Gulab Singh, r/o village Lokera, P.S. Sadabad, District Mathura: Pleaded ignorance about the actual facts as alleged by the prosecution and stated that he was arrested from village Lokera at about midday and nothing was recovered from him. The incriminating articles were planted and he was shown to the witnesses in police station Baldeo and Sadabad. There is parti -bandi in his village, and for this reason he has been falsely implicated in this case. iii) Balvir Singh (45) S/o Mishrilal R/o village N. Mouji, P.S. Sahpau, District Mathura: Pleaded ignorance about the facts as alleged by the prosecution and added that at about midday he was at his sister's house in village Kharba from where he was whisked away by the police. He denied the recovery of incriminating materials and stated that he was kept unmasked throughout and shown to the witnesses in P.S. Baldeo and P.S. Sadabad. Ram Singh of village Lokera in his enemy and he was the instrumental in his arrest from the house of his sister and he has been falsely implicated in this case. iv) Balram (30) S/o Hari Singh, R/o village Hathkoli, P.S. Baldeo: Stated that he knows nothing about the factum of dacoity as alleged by the prosecution. He was arrested from the city of Mathura, as he used to put up in Mohalla Govind Nagar. For one night he was detained in police station Baldeo and he was shown to the witnesses at P.S. Baldeo as aslo at P.S. Sadabad. For this reason he was indentified by Mormukat, and no incriminating material was recovered from him. Pradhan Girraj of his village is inimically disposed towards him and he was the instrumental in his arrest, and he was falsely implicated in this case. In Mohalla Govind Nagar in the city of Mathura he was putting up in Kothi No. 56 of the Srivastava Sahab a railway employee from where he was whisked away while he was sleeping at about 11, 11:30 P.M. One witness was examined in defence by accused Layak Singh and Balvir Singh and he is Sahab Singh D.W. 1. This witness testified that on 5.10.1977 while he was at his tube -well in village Lokera at about midday police came there and picked him up, as also the other villagers including Layak Singh and Balvir Singh.
(3.) AFTER making appraisal of the evidence learned trial court recorded its finding of conviction of all the four accused and sentenced them as aforesaid holding that the factum of dacoity is proved; the light available on the spot was sufficient for first informant Mormukat to recognize and identify the faces of the dacoits. Proof of fire arm injury sustained by Sanehi Lal and injury sustained by prosecution witness Neksa; recovery of empty cartridges and sample of ashes apart from the recovery of Lantern and Torches and good identification of appellants by first informant Mormukat and the identification of their looted articles recovered from the possession of the appellants by him and his wife Smt. Shanti Devi are sufficient to hold that; Prosecution has proved its case against all the four accused beyond doubt. Since, prompt recovery of the booty within 24 hours of the incident was made from the possession of all four accused persons, therefore, in the opinion of the trial court, it was sufficient to hold them guilty for the offence punishable under section 395 I.P.C. and there was no need to punish them under section 412 I.P.C. in view of the fact that, according to him, it was a surplusage and redundant. Since, the accused were found guilty of the offence of dacoity itself, therefore, possession of loot property will not constitute a distinct and separate offence, hence, learned trial court did not award any sentence on the charge under section 412 I.P.C.;