- (1.) B. K. Sharma, J. This is an appeal against the judgment and order dated 15. 12. 1979 passed by Sri G. S. N. Tripathi, the then IIIrd Additional Sessions Judge, Basti in S. T. No. 110 of 1975 along with connected S. T. Nos. 125 of 1975, 126 of 1975,127 of 1975,128 of 1975 and 129 of 1975, by which he convicted the accused- appellants Babu Lal, Gorakh, Mahangi, Moti Lal and Toofani of the offences under Sections 399/402, I. P. C. and sentenced each one of them to undergo R. I. for a period of 5 years for the offence under Section 399, I. P. C. and for the period of 5 years R. I. for the offence under Section 402, I. P. C. and further convicted Gorakh, Mahangi, Moti Lal and Toofani accused-appellants for the offence under Section 27 of the Arms Act and sentenced each one of them to undergo R. I. for a period of 6 months. Babu Lal accused-appellant, however, was acquitted by the learned Ses sions Judge for the offence under Section 27 of the Arms Act.
(2.) OUT of the accused-appellants, Babu Lal accused-appellant died during the pendency of the appeal and so the appeal has abated to his extent. The prosecution story was that Lal lan Prasad Srivastava, S. O. P. W. 3 of Police Station Menhdawal, District Basti received information from the informer on 29-3-1973 that a dacoit would be com mitted in the house of Ram Lakhan of Baniya Bazar, Bakhira at 11. 00 p. m. that on this, he alongwith the police force make departure from the Police Station and reached outpost Bakhira and took from there Ram Ashray Mishra, head constable P. W. 1, Ram Surat Singh constable and certain other constables and staying there sent Ram Sumer constables and one more constable and called public witnesses Surya Bans Singh P. W. 4, Juggi Lal, Ganesh, Govind, Ram Nath, Onkar Pathak, Bhullan, Roodal Pathak and Uma Shanker Shukla, residents of villages Maidrapar and licence holders Sohrat Singh and Mohd. Raza from the village Bakhira P. S. Menhdawal there and after apprising them of the purpose of calling them made 4 parties, that a party was made in the leadership of Kapildev Mishra, A. S. I. and public witnesses Mohd. Raza, Juggi Lal, Govind and constable Vish-wanath were included in it and it was sent to the house of Ram Lakhan of Baniya Bazar to collect the villagers and to cau tion Ram Lakhan and to do Gherabandi for the protection of his house that then three parties were formed out of the remaining force and the public witnesses that, the first party was headed by Ram Ashray Mishra, head constable P. W. 1 and was consisting of constable Ram Briksha Singh, constable Shohrat Singh, Onkar Pathak public witness and constable Ram Surat Singh P. W. 2 and the second party was made in the leadership of Chhote Lal Mishra S. I. and it was including the public witnesses Surya Bansh Singh and Bhullan and two constables, that the third party was made in the leadership of S. O. Lallan Prasad Srivastava P. W. 3 himself which in cluded Roodan Pathak, Daya Shanker Shukla and three constables, that all the three parties reached in ihcgroveof Shital Nayak on the border of Bakhira Lake (Jheel), that the first parly was posted at the bank of the lake to the north of the grove, the second party was posted towards south west behind the house in the shape of Gomti and the third party was posted on the south of the grove on the Sahjanwa road, that all the parties were posted at their respective locations by 9. 50 p. m. on the date, that at 10. 15 p. m. 3-4 culprits came from south east of the lake from the northern corner of the grove and sat under a mango tree and started conversing with each other in a low tone that one of them said, "abhi Tak Laddoo Va Ustad Nahin Aye". Another retorted "samai Ho Gaya Hai. Aatey Hi Hongey" and again said "pahalwan Biri Dharao, Pi Liya Jaye" and further said "ustad Apney Bajey Men Ka Aek Baja Hamko Bhi Dilwa Do", that in the mean time, 4 more culprits came from the Rasta of the lake and joined the pre viously assembled culprits, that then one culprit said "lo Ustad Va Laddoo Bhi Aa Gaya", that then all the culprits started conversing with each other, one of them said "ustad Ram Lakhan Key Pas Kafi Mai Hai Aur Ab Chalney Ka Samai Bhi Ho Gaya Hai, Kyonki 11 Bajey Ka Samai Diya Gaya Hai", that after saying this, retorting "chalo Chala Jaye", all of them got up, whereupon the police got convinced that it is a gang of dacoits assembled and prepar ing to commit dacoity, that consequently, head constable Ram Ashray Mishra S. I. , P. W. 1 asked the dacoits to stop and simul taneously Chhotey Lal Mishra, S. I. , start ing firing shots from V. L. P. and also flashed torch and in the light of VL. P. shots and in the light of the flash of torch, 5 dacoits were arrested by the raiding parties at a distance of 10-15 paces towards East while going from the spot, that the arrested dacoits were interrogated whereupon they gave their names as Babu Lal,gorakh, Mahangi, Moti Lal and Toofani, that on search being taken, a country made pistol alongwith a live cartridge and 8 live cartridges in a Jhola hanging in his right hand shoulder were recovered from the possession of Babu Lal accused-appellant, a Bujali was recovered from the possession of Gorakh accused-appellant, a Ballam and torch were recovered from the posses sion of Mahangi accused-appellant and a Rampuri knife and a torch were recovered from Moti Lal accused- appellant and a Ballam and a torch were recovered from Too fan i accused-appellant. The recovered properties were sealed separately and recovery memo was prepared at the spot and after that the accused-appellants were taken to the police station and lodged that at 3. 15 a. m. on 30-3- 1973 alongwith the recovered properties and a chik report was prepared and cases were registered against the accused-appellants for the offences under Sections 399/402, I. P. C. and for the offence under Section 25 of the Arms Act and investigation was started.
(3.) THE investigation in this case was made by Lallan Prasad Srivastava P. W. 3 himself and a charge-sheet was submitted by him against all the accused persons aforesaid for the offences under Sections 399/402, I. P. C. separate charge-sheets were submitted against Babu Lal, Gorakh, Mahangi, Moti Lal and Toofani accused-appellants under Section 25, Arms Act. At a joint trial, the accused appel lants were convicted and sentenced as aforesaid by the Sessions Judge.;