- (1.) THIS appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C), is directed against the judgment and order dated 20.5.1992 passed by the II Additional Sessions Judge, Dehradun in Sessions Trial No. 91/87, State v. Yogendra Singh & 4 Others; 93/87, State v. Rajvardhan; 92/87, State v. Vijay Thapliyal and 94/87, State v. Rajendra @ Raju. By the aforesaid judgment and or­der dated 20.5.1992, the learned II Ad­ditional Sessions Judge has convicted the appellants-accused Vijay Thapliyal, Rajvardhan Singh Bhandari and Rajenra Singh @ Raju under Section 399 of In­dian Penal Code, 1860 (for short, I.P.C.) and sentenced each of them to undergo five years' R.I. They were further convicted under Section 402 I.P.C. and sentenbed to undergo five years' R.I. The appellants-accused Vijay Thapliyal and Rajvardhan bingh Bhandari have also been convicted under Section 25 of The Arms Act, 1959 (for short, the Act) and both of them have been sentenced to undergo two 2 years' R.I. It has further been directed that all the sentences shall run concurrently. The appellant-accused Rajendra Singh @ Raju was not found guilty under Section 25(4) of the Act and has been acquitted of the said charge by the trial court.
(2.) IN brief, the prosecution case is that on 29.12.1986 at about 11.30 PM, on the information of Mukhbir that some persons would assemble in the hut of Shaym Bahadur @ Pahalwan behind Hem Kund Gurudwara in Rishikesh to commit dacoity in the house of one Mr. Bansal near the petrol pump, Ghananand Sharma, the S.H.O./Inspector In-charge, Rishikesh Police Station, made a police team consisting of S.I. Bhullan Singh Sharma, S.I. Rajendra Singh Tomar, S.I. Srinivas Sharma, S.I. Sureshanand Sharma, S.I. Shoveer Singh, S.I. Rajvardhan Gaur, S.I. Anjur Kumar Tyagi, S.I. M.R. Dugtal, Head Constable Kuwar Singh, Constable Jai Kumar, Con­stable Sukhveer Singh, Constable Harendra Singh, Constable Tilak Singh, Constable Dharam Pal Singh, Constable Rajendra Prasad and Constable Tilak Ram. The said police team armed with weapons moved from the police station along with the Mukhbir at 11.40 PM. In their way to the place of occurrence, they tried to find the public witnesses, but no one was ready to accompany the police party. The said police party reached near the hut of Shyam Bahadur at about 12 in the night. Thereafter the police party was di­vided into two groups. S.I. Bhullan Singh Sharma led the first group, whereas S.I. Srinivas Sharma led the second group. The first group took position from the north side of the hut towards the sugarcane filed, while the second group positioned itself from the west-south side under the wall at about 12.20 AM. After 20 minutes, four dacoits arrived 3 inside the hut and started talking to each other. One of them stated that Jassu Netaji has still not arrived. After two minutes, two more dacoits also arrived there. One of the dacoits uttered that first of all they will commit dacoity in the house of Bansal near the petrol pump. Thereafter they will commit dacoity in the nearby houses. After hearing the talks, the police party challenged the dacoits and asked them to surrender as they have been encircled by the police. Then the police fired two rounds of VLP. On that, all the six dacoits left the hut and ran towards the eastern side. Police party chased the dacoits and arrested four of them at about 1 AM, while two dacoits were successful in escap­ing from the place of occurrence.
(3.) OUT of four arrested dacoits as mentioned above, one named himself as Vijay Thapliyal from whose possession one country-made pistol of 315 bore and two live cartridges were recovered. Second dacoit identified himself as Rajvardhan Singh Bhandari from whose possession one country-made pistol of 303 bore and two live cartridges were recovered. Third dacoit told his name as Rajendra Singh @ Raju and one knife was recovered from him. From the possession of fourth dacoit, who identified himself as Balwant Singh Patwal, one khukhri was recovered. Recov­ery memo was prepared in the light of the torch by S.I. Sureshanand Sharma and re­covered items were sealed separately on the spot. Specimen of seal were prepared. None of the accused was able to show the license of the weapons recovered from their possession. The names of two per­sons, who fled the spot, were told as Yogendra Singh Panwar and Jasbir @ Jassu (acquitted by the trial court). Recov­ery memo Ex. Ka-1 prepared on the spot was signed by the policemen. Fard baramadgi khokha of VLP Ex. Ka-2 was also prepared on the spot. Specimen of seal Ex. Ka-3, Ka-4, Ka-5, Ka-6 and Ka-7 4 were also prepared on the spot. There­after all the four arrested persons were made Baparda on the spot.;