S. N. Saxena, J. - (1.) THIS Criminal Appeal was heard yesterday and the operative order allowing the appeal and acquitting the appellants of the charges levelled against them was pronounced after the conclusion of the arguments. Necessary order in respect of material exhibits also wae passed. The reasons for allowing the appeal are being given now.
(2.) ALL the five appellants were convicted and sentenced for different offences including the offences under sections 399 and 402, IPC by the learned IV Addl. Sessions Judge, Bulandshahr on 31-3-1979 in Sessions Trial No. 351 of 1974 and Sessions Trial No. 42 of 1976, both of which were consolidated and heard and decided by a common judgment. S. T. No. 351 of 1974 was the loading case. The accused persons, on 11-8-73. at about 10.00 P.M. had allegedly assembled in the "Dharmshala" of Shastriji at the out-skirts of village Sondha Habibpur in police station Khuurja, district Bulandshahr, after having made preparations for commiting dacoity. They were illegally carrying arms due to which accused Ghoorey. Dal Chand, Ram Lal and Mahmood were tried under section 25 (1) (a) of the Arms Act in respect of the arms which were found in their possession at the time of their arrest by the police. Appellant, Hukum Singh, was charged under section 27 of the Arms Act as he was found in possession of his gun, which, if required, could be used by him for commission of the dacoity. Accused Chhattar had been charged under section 5 of the Explosives Act also for having been found In possession of one hand-grenade on the said date, time and place as aforesaid. Accused Chhattar is not an appellant in this appeal. Accused Mahmood was found in possession of a sten-gun and a few live-cartridges. Accused Ram Lal was armed with a country-made pistol and soma live cartridges. Accused Dal Chand and Ghoorey were armed with guns. It may be mentioned at the outset that there was no public witness in this case. The reason given by the prosecution was that sufficient time was not there for collection of public witnesses (Sue to which the polloe party had divided itself into two groups and had apprehended the accused persons after having become satisfied that they had assembled there for committing dacoity at the house of Raghnnath. The police party consisting in all of ten police personnels had left police-station Khurja at 8.40 P.M. on 11-8-73 in a jeep car to arrest an alleged dacoit, named, Kanuwa of Arnia Mansoorpur village. PW 1 Sub-Inspector, Indraj Singh, was the Station Officer of Khurja police station. He had received information that Kanuwa was residing in the house of Faqira Jatav in village Zahidpur Kalan on the aforesaid date, time and place. The police party, besides the Station Officer, consisted of two Sub-Inspectors, two head-constables and five constables. AIl of them were carrying fire-arms and ammunitions as well as a few torches. The jeep was being driven by driver, Bharat Singh. On the way, they met a person, who, too was going to participate in the aforesaid dacoity alongwith his companions who had assembled in the aforesaid "Dharmshala". The police party searched him and recovered one country-made pistol and a few cartridges from the bag which he was carrying In his right-hand. He gave out his name as Yashpal and on interrogation by the police party disclosed the intended commission of dacoity by the appellants. The police party, thereafter, divided Itself into two and successfully apprehended the accused persons. Admittedly not a single shot was fired from either side during the arrest of the accused persons by the police party. Help was taken from torches with the police party during the arrest as well as for drafting of "Fards" etc. after the recovery of the fire arms and hand-grenade from the possession of the appellants.
(3.) LEARNED Sessions Judge believed the two witnesses, examined by the prosecution, and convicted and sentenced the appellants against which they have preferred this appeal. The evidence adduced by the prosecution consisted of the statements of PW 1 Indraj Singh who was posted as Sub-Inspector on 11-8-1973 in Khurja Kotwali and PW 2 S. D. Sharma who too was posted as Sub-Inspector at Police station Khurja that day. PW 1 Indraj Singh was holding the charge of the Kotwali on 11-8-73.;