POONAM SRIVASTAV,J. - (1.) THE appellants namely Mahendra Singh S/o Kali Charan and Malkhan Singh S/o Phool Singh are two appellants in the instant appeal. The appellants and one another person Sahab Singh were put up for trial. Sahab Singh has been released on two years probation of good conduct on his furnishing one surety and entering into a personal bond for Rs. 1000/- (one thousand only) with an undertaking that he shall maintain peace and good conduct during the period of probation and shall appear in the court whenever called upon to receive his sentence. Nothing is brought on record to show violation of the aforesaid restriction while he was on probation under surveillance of District Probation Officer. The other accused namely Mahendra Singh and Malkhan Singh were convicted, they preferred the instant appeal and were granted bail. Bail bonds of the appellants were cancelled by this Court on 4.8.2006. Non-bailable warrants were issued for securing and ensuring their presence but despite repeated reminders on several dates thereafter the accused have failed to appear. A direction was given to trace out the sureties but the office report dated 15.10.2009 shows that neither the sureties nor the accused could be traced. Finally Sri Jeevanji Srivastava Advocate was appointed as Amicus Curiae on 24.10.2009. The Chief Judicial Magistrate, Agra was directed to ensure that if there is any property of the accused the same may be attached and sale proceeds be deposited.
(2.) THE appeal came up for arguments today and Sri Jeevanji Srivastava Advocate appeared on behalf of the appellants and learned A.G.A. for the State. The appellants were convicted in Sessions Trial No. 100 of 1981 sentencing them to 2 years R.I. under Section 399 I.P.C., 2 years R.I. under Section 402 I.P.C. and one year R.I. under Section 25 Arms Act. All the sentences were directed to run concurrently.
(3.) THE occurrence is alleged to have taken place in the night of 16/17.9.1980 at mid night but their arrest has been shown on the same day at 12.30 O' clock at the alleged place of occurrence. The F.I.R. was registered by the Investigating Officer Babu Lal Sharma at 4.00 A.M. on 17.9.1980. Learned counsel for the appellants has placed the F.I.R./recovery memo to demonstrate the prosecution story. According to which accused Malkhan Singh and Sahab Singh are brothers. Accused Mahendra is their maternal-uncle being the brother of their mother. In the night of 16/17.9. 1980 S.I. Babu Lal Sharma (PW-4) who was the S.O. Incharge of P.S. Narkhi, was on beat duty with constables Vir Pal Singh, Cheddi Lal Sahukar, H.C. Shiv Ratan of armed police and Vidhya Ram, Om Prakash, Ram Swarup, Banwari Lal and Raghu Raj Singh, all constables of the armed police. When they reached the bus stand of Kapawali, they found S.I. Seva Lal Yadav (PW-3) along with one constable Puran Singh, who were there in connection with some investigation in a criminal case, together they proceeded to Kotla-Farah Road. They had hardly covered some distance, when they saw some persons flashing their electric torches from near a Dharmshala at a distance of about 100 paces towards south of the Road. Suspecting that they were bandits assembled for the purpose of committing some crime, PW-4 divided his group of police personnels into two parties, took mutual search to ascertain that none of them was carrying any incriminating article and instructed the parties to proceed towards Dharmshala quietly. PW-3 was made leader of one of the parties and PW-4 himself took the leadership of the other. Reaching near the Dharmshal PW-4 placed his party toward its north-western flank. The other party placed itself on the south-western flank of Dharmshala. Towards the east of Dharmshala they saw as many as 9-10 persons smoking 'Biris' and talking among themselves. They over heard their talks. It was about mid night. The conversation over heard by PW-2 and PW-4 was to the effect that it is no use waiting for any one. It has already past mid night. Jogendra Singh is a rich man. We are sufficiently armed. Let us start at once to commit dacoity. Convinced by this conversation that the persons assembled there were making preparation for committing dacoity, PW-4 flashed his electric torch and challenged the dacoits telling them that they were in the cardon of the police, that they should surrender themselves otherwise they would be shot dead. Even then the dacoits tried to run away but three of them were caught at the spot. The other allegation is that from the possession of accused Mahendra a country made pistol (Ex. 1) and three live cartridges (Ex. 2 to 4) and electric torch (Ex. 5) were recovered. From the possession of accused Malkhan Singh a country made pistol (Ex. 6) and two live cartridges (Ex. 7 and 8) were recovered. From the possession of accused Sahab Singh a 'Lathi' (Ex. 9) and electric torch (Ex. 10) were recovered. From the place where the dacoits were sitting and talking among themselves, some burnt butts of 'Biris' and match sticks were recovered. All these articles were sealed and kept in separate bundles, except the 'Lathi'. A recovery memo of all these articles (Ex. Ka 11) was prepared at the spot. Thereafter the accused were taken to the police station where the F.I.R. of this incident was lodged by PW-4. Recovery made by the prosecution is argued by Sri Jeevanji Srivastava Advocate appearing on behalf of the accused to be highly doubtful and no reliance can be placed on the same for the reason that essential requirements to substantiate the alleged recovery were completely missing. The so called recovery from the possession of the appellants was in absence of any public witness. Besides no signature of the accused was taken on the recovery memo which is said to be prepared on the spot itself. The accused have also not been supplied any copy of the said recovery memo to substantiate the actual recovery. Besides, a glaring factor has been pointed out that though the accused were said to be armed with fire arms but no cartridge was found in their pocket and none of the arms were loaded. In the circumstances, it is a recovery which can very well be assumed to be planted by the police itself without any authenticity to corroborate correctness of recovery beyond any doubt. It is also a fact that when the accused were being chased and as claimed by the prosecution they were arrested on the spot, none of them ever tried to open fire at the police party. The allegation is only to the effect that they tried to run away when the torch was flashed at them but none of them made any attempt to ward-off the police party even by making an airal fire. Since the learned Session Judge has also accepted this fact and has concluded that no shots were fired at the time when the accused were captured and live cartridges were recovered from their possession but fire arms were neither used nor any preparation was made for using them in defence. Sri Babu Lal Sharma is the Investigating Officer who has admitted that the assailants had seen the torch light just for a second and when they saw the torch light they started running. Besides, learned counsel has also placed the statement of the Investigating Officer to challenge the seizure as no signatures, even of the police officials was present on the seized articles. This part of the statement has been highlighted by the learned counsel to show that the Investigating Officer has admitted that the articles sealed in a cloth does not bear the signatures of witnesses. The so called signature was also not visible. In the circumstances, this itself is sufficient to establish that there was no signature and entire seizure is apparently fabricated. ;