H.N.Kapoor, J. - (1.) THESE are three connected appeals by five persons, Chandrika, Kashi, Amrika, Fakirey and Mohammed Jamil against the order and judgment dated 11-8-1976 of the First Addl. Sessions Judge, Bahraich convicting them u/Section 399/401 IPC and sentencing each of them to five years RI. Fakirey. Jamil and Chandrika have been further convicted u/Section 25/27 Arms Act and have been sentenced to one year's RI each. All the sentences have been directed to run concurrently. Two other persons Kallu and Chhotey too were convicted u/Sections 399/402 IPC but they have not filed any appeal.
(2.) THE prosecution case is that on 24-8-74 at about 8.40 p. m. station officer Chandra Shekhar Singh PW 1 of police station Nanpara got information that a gang of dacoits would collect at the Khandhar of Suleman in village Lakhaiya to commit a dacoity at the house of Baburam Kurmi of that village. At that time on account of the panchayat elections in the village armed constabulary was also stationed at Nanpara. SO Chan- drashekher Singh took with him SI Ramdeo Singh and a police force and also took the Platoon Commander Sri Purshottam Singh and some constables of the PAC and started with the informer from police station Nanpara at 9.05 p. m. on the same night for arresting the gang of Faqirey. THE Station Officer had a revolver, SI Ramdeo Singh had a 12 bore DBBL gun. THE PAC Commander also had a revolver and some PAC constables had rifles. THEy also had torches. THEy reached near the Khandhar at about 10.30 p. m. and they had divided themselves into three parties. THEy concealed themselves in three directions of that Khandhar. One party headed by SO Chandrashekhar Singh took position at a distance of about 20-25 paces from the Khandhar. THE second party took position at a distance of about 40-45 paces from the Khandhar and the third party concealed itself at a distance of 60-65 paces from that Khandhar. SI Ramchandra Yadav PW 2 was incharge of the third party. Two public witnesses Suleman PW 3 and Atmaram PW 4 who had been taken by the police with them also concealed themselves. Suleman was in the second party while Atmaram was in the first party. Before proceeding there, the S O Chandrashekhar Singh had taken care to depute a constable at the house of Baburam Kurmi and had also given him information that a dacoity was to be committed at his house. It is surprising that Baburam Kurmi has not been examined in this case. THE station officer had also a VLP pistol with him. All these persons had taken their positions at about 11. 30 p. m. THE miscreants arrived there in groups at about 1 a. m. According to the FIR one of them had said "all the persons have arrived. Let us go and do the work." THE second dacoit then said, "Dat to Pakki hogi, ham logon ko dhoka to na hoga." THE third dacoit then said, "dat to Pakki hai." THE station officer was then satisfied that the miscreants had collected there with the object of committing dacoity. In the statements an improvement has been made by the witnesses that the dacoits had also said that all of them had collected and let them go to commit the dacoity. At that very time, a signal was given by the station officer who also fired with his VLP pistol which emanated light. THE dacoits tried to run away but they were surrounded and arrested. No fire was exchange ed. THE dacoits then gave out their names. One DBBL gun of 12 bore was recovered from the possession of Jamil, and a single barrel gun of 12 bore was recovered from the possession of Faqirey. In the judgment the gun recovered from the possession of Faqirey is described as the gun of Sri Virbhan Singh, Advocate of Bahraich and the gun recovered from the possession of Mohammed Jamil is described as the gun of Dularey Mian. THEy have also been ordered to be returned to these gentlemen. THE country-made pistol was recovered from the possession of Chandrika and some live cartridges were also recovered from the possession of these three persons. Axe, Lathis etc. were recovered from the possession of other persons. A joint recovery memo Ext. Ka-3 was prepared at the spot. All the recovered articles were sealed in separate bundles. THE arrested persons with the recovered articles were taken to the police station in the morning. THE articles were deposited and the arrested persons were put in the hawalat. SO Chandrashekhar Singh then lodged the FIR Ext. Ka-10 on 25-8 1974 at 11.15 a.m. On his report, investigation of the case was entrusted to SO M. P. Singh PW 5 of P. S. Rupaidia. He went to the site and prepared the site plan. He interrogated the witnesses. He then obtained sanction of the District Magistrate for prosecution u/Section 25/27 Arms Act. After completing the investigation he submitted the charge sheet against all the accused persons. THE accused persons denied the prosecution allegations and stated that they were falsely implicated in this case due to enmity of the police. THEy denied that any weapon was recovered from their possession. Faqirey stated that he was arrested at Nanpara bus stand at the instance of Yusuf Pradhan and his brother Suleman while Jamil stated that he was arrested from in front of the Bah- raich eye-hospital in the day time at 8 a. m. Chandrika, Kashi and Amrika stated that they were arrested from their houses. THE defence taken by Chhotey and Kallu is not material for the purpose of these appeals. Chandrika, Amrika and Kashi examined Jwala Prasad as DW 1 in support of their defence that they were arrested from their houses. THE accused persons also stated that they were kept at the police station for a couple of days and shown to the witnesses. In support of its case, the prosecution has examined SO Chandrashekhar Singh PW 1, SI Ramchandra Yadav PW 2 Suleman PW 3 and Atma- ram PW 4 as eye-witnesses of the occurrence. These witnesses, no doubt, in their examination-in-chief corroborated each other about the arrest of the various accused persons and the recovery of the weapons etc. from their possession. Atmaram in his cross-examination wrongly stated that the double barrel gun was recovered from the possession of Jamil and that the single barrel gun was recovered from the possession of Faqirey. No doubt, he stated that the matter had become old and so he did not remember it correctly. It may be so, but a very damaging statement has been made by Suleman PW 3 iu his cross-examination on behalf of Amrika, Chandrika and Kallu, he stated that he had seen them for the first time at the police station. He further stated that he was brought for his evidence by the constable. He made a further statement that the police constables had threatened him that he would be beaten in case he did not depose properly. He pointed out to a constable who was standing in the court that he had brought him for his evidence. Subsequently when he was cross-examined on behalf of Kashi and Chhotey, he, no doubt, stated that it was not a fact that he had gone there to depose under the pressure of the police. The learned Sessions Judge has tried to explain away his earlier statement by observing that he had only meant that he had seen Amrika, Chandrika and Kallu at the police station for the first time after the occurrence. I do not think that it is possible to interpret his statement in this manner. The plain reading is that he had not seen Amrika, Chandrika and Kallu at the time of the occurrence. It is not the prosectuion case that besides these seven persons some other persons had also collected there having made preparations to commit dacoity. According to the prosecution all the seven persons who were there were arrested. If the presence of three persons becomes dobutful, none can be convicted u/Section 399 or 402 IPC. It is significant that Suleman was not declared hostile. I have already observed above that an attempt has been made by the witnesses to make an improvement in their testimony as it has been stated that the miscreants had said that all of them had collected there and that they should go to commit the dacoity. In the FIR it was only stated that they had collected there and they should go and one dacoit had enquired whether the information was correct or not. These words would not be sufficient for showing that they were to proceed for committing the dacoity. There appears to be some force in the argument of the learned counsel Sri S. S. Misra that it would not have been possible for the persons who were concealing themselves in a pit at a distance of many paces from the Khandhar to have heard the whisper. There is yet a very important circumstance in this case. The learned Judge has held that the SBBL gun belonged to Sri Virbhan Singh, Advocate while the DBBL gun belonged to Dularey Mian. I have gone through the entire record with the help of the learned Assistant Govt. Advocate. There was no evidence to this effect. The learned Assistant Govt. Advocate has also examined the case diary and could not point out any portion to me on the basis of which it could be said that these two guns belonged to these gentlemen. There should have been some evidence to the effect that these guns had been stolen or looted. Learned counsel for the appellants has, therefore, argued that it was possible that these persons might have been supplied these guns by their owners specially when the panchayat elections were to take place. For the purpose of this case, it is not necessary for me to give any finding on this point. It may be that there might have been some other case pending in the court of the learned Sessions Judge and he might have arrived at this conclusion that these guns belonged to these gentlemen on the basis of his findings in that case. For the purposes of this case, it is sufficient that Faqirey and Jamil were found in possession of these guns belonging to other persons for which they themselves did not hold any licence. Both of them, therefore, are liable to be convicted u/Section 25 Arms Act. So far as Chandrika is concerned, his arrest and the recovery of the country made pistol from his possession has become doubtful in view of the statement of Suleman. On the basis of his statement it is also doubtful if at least five persons had collected there to commit the dacoity. The appellants, therefore, are entitled to be given the benefit of doubt so far the offence u/Section 399/402 IPC is concerned.
(3.) IN the result the appeal of Chan- drika, Kashi and Amrika is allowed. Their conviction and sentences are set aside. They are on bail. They need not surrender to their bail bonds which are hereby discharged. The appeals of Faqirey and Mohammed Jamil are partly allowed to this extent that their conviction and sentences u/Section 399/ 402 IPC are set aside. But their conviction and sentences u/Section 25/27 Arms Act are maintained. Their learned counsel informs that they have already served the entire sentence. IN case they haws served the sentence of one year's RI after taking into consideration the period during which they remained in prison as undertrials u/Sec. 428 CrPC, they shall not be taken into custody again and in that case their bail bonds shall stand automatically discharged. IN case they have not served out the entire period of one year's RI, they shall be taken into custody to serve out the remaining sentence. Appeal allowed.;