- (1.) CHALLENGE in this appeal is to the judgment and order dated 6.11.1981, passed by Sri R.N. Tiwari, the then VI Addl. Sessions Judge, Aligarh in S.T. No. 358 of 1979, whereby appellants have been convicted for the offence punishable u/s 399/402 IPC and each had been sentenced to undergo RI for four years. Appellant no. 1 and 2 were further convicted for the offence punishable u/s 25 Arms Act and each had been directed to undergo RI for one year. Sentences of these appellants were directed to run concurrently.
(2.) DURING pendency of appeal, appellant no. 2 Hira had died, so his appeal stood abated. A report of the Tehsildar, Hathras dated 15.5.2006 was received along with the report of the Chief Judicial Magistrate, Aligarh, dated 20.8.2006 intimating that appellant no. 3 Sonpal had died four years ago. The Court vide order dated 6.9.2006 directed the CJM, Aligarh that the death of appellant Sonpal be verified by any police officer not below the rank of Sub Inspector of the police station concerned who will enquire into the matter and submit his report duly countersigned by the Station Officer concerned. It was further directed that the CJM, Aligarh would record the statement of Sub Inspector on oath in addition to the statement of any witness having personal knowledge and thereafter would record its subjective satisfaction from the material placed before him and shall submit his report to the Court along with all the papers. Thereafter police reports were received intimating the Court that Sonpal had left the village for about 20 years and had disposed of his immovable and property and nothing has been heard about him. In these circumstances the presumption of death of appellant no. 3 Sonpal can be had u/s 108 Evidence Act and his appeal also abates. After this report vide order dated 3.9.2012 the Court has proceeded to issue bailable warrant against appellant no. 1, whose counsel has appeared in the Court for arguments.
(3.) SHORN of details, the prosecution story is that in the night of 23/24.9.1978, S.O. Prem Pal Singh of P. S. Mursan, District Aligarh, (now District Hathras) along with other police personnel on patrol duty was proceeding towards Hathras and when he reached near river Karvan at about 12.15 a.m. they saw bidi light and suspected the presence of some miscreants in the dharamshala. The police party then reached on the western side of the dharamshala. They over heard the talks of miscreants from inside the dharamshala that their companion 'Neta' has not yet arrived, the other said that we six are sufficient to commit dacoity and they are armed with sufficient weapons. Being satisfied that the gang of dacoits had assembled there for committing dacoity, the police party intercepted by flashing torch light and warned them that they have been cordoned by the police and if they attempt to run, would be killed . It was alleged that the miscreants tried to make their escape good, but three of them were apprehended by the police near dharamshala who introduced themselves as Bhagwan Singh, Hira and Sonpal. On personal search of Bhagwan Singh one country made pistol 12 bore with six live cartridges 12 bore and one bidi bundle no. 27 containing five bidies and one match box was recovered. Accused Hira was found in possession of a country made pistol and four live cartridges of 12 bore and one bidi bundle, while a knife was seized by the police from the possession of accused Sonpal. All these articles were separately sealed on the spot and memos were prepared. Thereafter the S.O. along with the accused persons came back to police station and lodged oral report of the incident at 2.00 a. m. on 24.9.1978. The investigation of the case conducted by S.I. C.P. Singh, culminated in charge -sheet against accused/ appellants. Sanction for prosecution of accused Bhagwan Singh and Hira under section 25 Arms Act was obtained from the District Magistrate, Aligarh. After committal of the case to the Court of Session charge for the offence punishable u/s 399 and 402 IPC were framed against all the three appellants, while Bhagwan Singh and Hira were further charged for the offence punishable u/s 25 Arms Act. All the accused/appellants abjured their guilt and claimed trial.;