R. Chandra, J. - (1.) JAGNU and Mahesh Singh residents of village Jamsara, Mina of Chandrapur, Mohan of Kantha, Rampal Singh and Ram Smgh of Masurha, Jawahar, Chhotey Lal and Gayari of Virahimpur, Harihar Singh of Jagsura--all within the police circle Sandila --and Sumer of village Sahoria, within the police circle Baghauli, in the district of Hardoi, were tried for the offences under Section 399/402, Indian Penal Code, by the Assistant Sessions Judge Hardoi. The charge against them was that on the night between the 18th and 19th December, 1963 they collected in the grove of Ram Nath in village Bhargahna after having made preparations to commit dacoity at the house of Khurram Chamar. Jagnu, Sumer and Jawahar were further charged under Section 25 (a) of the Arms Act. Jagnu, Mohan, Sumer and Harihar Singh were acquitted. The remaining seven, namely, Mahesh Singh Minna, Ram Pal Singh, Ram Singh, Jawahar, Chhotey Lal and Gayari were convicted and awarded five years' rigorous imprisonment each under Sections 399 and 402 Indian Penal Code, (each count). Jawahar was also sentenced to one years rigorous imprisonment under Section 25 (a) of the Arms Act. The State has filed against the acquittal of Jagnu and Sumer. No Government Appeal has, however, been filed against the acquittal of Mohan and Harihar Singh. The three other represented Criminal Appeals -- Nos. 92 of 1965, 109 of 1965 and 288 of 1965--have been filed by Ram Singh, Rampal Singh, Mahesh Singh, Jawahar and Minna against their conviction on the various charges. The remaining two appeals, namely Jail Appeals Nos. 317 of 1965 and 320 of 1965, are the unrepresented jail appeals of Chhotey Lal and Gayari. Since all these appeals arise out of the same trial we propose to dispose them of together.
(2.) WE have heard the learned counsel for the appellants and the Assistant Government Advocate for the State. The case for the prosecution in brief it that on 18th December, 1963, at about 7-30 P.M. Raghubir Singh, Station Officer, Police Station Sandila, got the information from an informant that Jagnu, Mahesh Singh, Minna, Mohan, Rampal Singh, Ram Singh, Jawahar, Chhotey Lal, Gayari, Surner and Harihar Singh were planning to collect in the grove of Ram Nath in village Bhargahna, police station Sandila that night after having made preparations to commit dacoity the house of Khurram Chamar of village Pausra Kher, hamlet of Bhargahna. (An entry about that information was made in the general diary vide Extract Ext. Ka-16). He immediately deputed Bhagwati and Baij Nath, constables, to guard the house of Khurram Chamar. (About that also an entry was made in the genera] diary, vide Extract Ext. Ka-17). At about 8-15 P. M the Station Officer left the thana with the police party for the grove of Gulab Das situated near village Bhargahna. Some constables were sent to call respectable public witnesses. They brought eight witnesses including Kedar Nath P. W. 3, Shahzade P. W. 4, Bharosey P. W. 5, Rajja P.W. 7, Dayal Shanker P.W. 8, Bashtr P.W. 9 and Mewa Lal P. W. 10. Thereafter the entire party was' informed of the purpose of their collecting there and necessary instructions were also issued. They were further told that after it was satisfied that the dacoits had collected for committing the dacoity, signal would bs given by firing a very light pistol. Then they left for the grove of "Ram Nath. There, the entire party was divided into three groups. Party No. 1 was under the leadership of Station Officer Raghubir Singh P, W. 22, and was posted on the western side of the grove. Party No. 2 was headed by S. I. Mukhtar Ali P. W. 6 and was posted towards north of the grove. Similarly the third party was headed by S. I. Chandrapal Singh P.W. 2, and was posted towards east of the grove. The southern side was left open as according to the information received th" dacoits were expected to come from that side. At about 11 P. M. the dacoits started coming and they collected by midnight. They were smoking bidis and talking among themselves. After all the badmashes nad collected, one of the dacoits said, "Now is the time. There is no licence- holder in the village. Dacoity be committed". Thereupon, the other dacoit remarked, "We have sufficient ammunition. Khurram Chamar is a wealthy person and we would get sufficient booty". This talk was overheard by the members of the hiding party. When the Station Officer was satisfied that they were really dacoits and had collected there to commit a dacoity, he fired five shots from a very light pistol. This produced sufficient light. The members of the raiding party also possessed torches and fire-arms. They all immediately rushed towards the badmashes and after inflicting some injuries succeeded in arresting fagnu, Sumer, Jawahar, Gayari and Chhotey Lal on the spot. Their other companions however managed to escape. The members of the raiding party claimed to have seen and identified those badmashes in the light of torches and very light pistol. The arrested persons were searched on the spot. From the possession of Chhotey Lal, one bag Ex. 1 containing Chheni (chisel) Ext. 2, iron bar Ext. 3, hammer Ext. 4, and a torch Ext. 5, were recovered under the memo. Ext. Ka-3. Similarly, from the possession of Tawahar, one country made pistol Ext. 8, two live cartridges Exts. 9 and 10, one empty cartridge from the barrel of the pistol Ext. 11, and one torch Ext, 12, were recovered under the memo. Ext. Ka-4. From the possession of Sumer, one country-made pistol Ext. 16, two live cartridges Exts. 17 and 18 and one torch Ext. 19 were recovered under the memo. Ext. Ka-6. From the possession of Tagnu, one country-made gun Ext. 32 and four live cartridges Exts. 33 to 36 were recovered under the memo. Ext. Ka-9. Similarly, from the possession of Gayari, one kanta Ext. 37 was recovered under the memo. Ext. Ka-10. Jawahar, Sumer and Jagnu held no licence for the firearms and ammunition recovered from them. From the grove of Ram Nath, some empty cartridges, three lathis and other miscellaneous articles, such as match-boxes, match-sticks and the burnt pieces of bidis were recovered under memos. Exts. 5 and 7. The arrested persons with the seized property were removed to the thana where a report Ext. Ka-20 was lodged by the Station Officer Raghubir Singh at 7 A. M. The distance of the police station from the scene of occurrence was about three miles. The arrested persons and the witnesses were interrogated. Rarii Singh and Ram Pal Singh were arrested on 15th January, 1964. Mahesh Singh was arrested on 25th December, 1963 Minna was arrested on 21st December, 1963. They were put up for identification on 1st February, 1964 and 22nd February, 1964. After due investigation and obtaining sanction for the prosecution under the Arms Act, charge-sheets were submitted against all the eleven accused persons.
(3.) THE prosecution in support of its case in all examined 28 witnesses. Out of them, Chandrapal Singh P. W. 2, Kedar Nath P, W. 3, Shahzad P. W. 4, Bharosey P. W. 5, Mukhtar AH P. W. 6, Rajia P. W. 7, Daya Shanker P. W. 8, Bashir P. W. 9, Mewa Lal P. W. 10, Surendra P. W. 11, Ram Singh P. W. 12, Sohan Lal P. W. 13 Mohd. Kazim P. W. 21 and Raghubir Singh P. W. 22 are the eye-witnesses of the occurrence. The remaining witnesses are mostly of a formal nature.;