B.K.Sharma - (1.) THIS is an appeal against the judgment and order dated 8.4.1980 passed by Sri S. N. Singh, the then Additional Sessions Judge, Lalitpur in S. T. No. 43 of 1979, whereby he convicted the accused-appellants of the offences under Section 399/402,I.P.C. and sentenced them to undergo 2 years R.I. for each of the offences. The sentences were made to run concurrently.
(2.) HEARD the learned counsel for the parties and perused the records. The prosecution story was that on 28.2.1979 Sri Chhetrapal Singh, the then S.O. of P.S. Girar received information at 16.05 hours from a reliable informer that the gang of Nathua Kachchi will assemble under Mahuwa tree on the Patha of Murai and make preparation for committing dacoity in the house of Sunder Lal Jain in village Kutgawan. On this information, he made entry in the G. D. at SI. No. 16 and then made departure along with police force through G. D. No. 17 at 16.15 hours. He also took four constables of A. P. Guard from village Balna where they were posted, took public witness Baldeo Singh along with his personal gun and witnesses Pooran Manua and Mardama alongwith lathies and then went to the house of Sundar Lal Jain in village Kutgawan and reached there at 7 p.m. and informed him about the plan to commit dacoity at his house, posted two constables at his house for his security. Then he took public witness Chandra Bhan Singh with his private gun and public witness Baldeo Singh with his private gun and then reached at the primary school of village Kutgawan and there were made three parties of force and the witnesses. The first party was made by him in his own leadership in which there were included three constables and two public witnesses Baldeo Singh and Mardama. The second was made in the leadership of A. S. I. Randhir Singh and two constables and public witness Chandra Bhan Singh and Manua were included in the same. The third party was made in the leadership of Hari Ram constable. It included with him three other constables and public witness Baldeo Singh and Pooran. After giving necessary instructions to them, he took all the three parties to the Patha of Murai at 7.45 p.m. and posted them there. The first party was positioned to the South of the Mahuwa tree in the Aar of stones at the distance of about 20 paces. The second party was posted to the East of the Mahuwa tree in the Aar of stones at the distance of 25 paces. The third party was posted to the West of Mahuwa tree in the Aar of Jhar and Tendu Bush at a distance of 25 paces. The parties took their respective positions at 8.00 p.m. and started waiting for the dacoits. After sometime, the dacoits came from the North and set under the Mahuwa tree and started smoking birtes and conversing with each other. The prosecution case further is that the dacoits were telling each other that the village is a small one and there were only two guns in all in the village, that up till then, people must be doing 'Biyari' and the doors of their houses would be open and it would be easy to commit dacoity and loot cash and ornaments at that rime, that in case they are late, the police guard of village Balna would come, now he would not come let them commit dacoity, that on this, the architect of the raid and leader of the first party Chhetrapal Singh, the then S.O. flashed his torch and all the three parties raided the dacoits and succeeded in arresting 4 of them at the spot, though two of their companions managed to escape. Out of the arrested dacoits, one was Veer Singh from whose right hand one D. B. B. L. loaded gun besides 100 gms. Barood, 10 topies, 25 pellets, torch, one biri bundle and match box were recovered from him. There was said to be a recovery of a single barrel loaded gun from the person of Natthu Kachchi accused along with 8 topies, 10 gms. Barood with 14 pellets, torch, one biri bundle and match box. A ballam was recovered from the possession of Parichhat Kachchi accused beside a biri bundle and match box and a lathi was recovered from the possession of the accused Phundi along with biri bundle and match box. Usual recovery memo is alleged to have been prepared and the accused are said to have been taken to the police station and a chick report was prepared at the dictation of Chhetrapal Singh, S.O. and the case was registered under Section 399/402,1.P.C. against all the 4 accused and the cases were also registered under Section 25 Arms Act against Veer Singh and Nathuwa accused. All the accused made denial of the spot arrest and the recoveries.
(3.) NATHUWA accused claimed that earlier he has been prosecuted in a similar case and after the acquittal, he has been falsely implicated in the present case. Parichhat accused claimed that he has been falsely implicated in this case due to the enmity with witnesses. Veer Singh accused claimed that he was arrested from his house and falsely implicated. Phundi accused claimed that he was falsely implicated as he and other had lodged a report against the witnesses. The trial court accepted the prosecution witnesses in to to. This appeal has been preferred by Parichhat and Phundi accused alone. Apparently, no appeal has been preferred by the other two convicted accused. The record bears out that those two accused were unable to engage a private counsel as they were in custody through out the trial and had sought an amicus to defend themselves. However, non-challenge of their conviction by the said co-accused Veer Singh and Nathuwa does not stand in the way of the present accused appellants in this appeal which is to be decided on merits.;