B.K.SHARMA, J. - (1.) THIS is an appeal against the judgment and order dated 24-7-1980 passed by Sri Khem Karan, the then IVth Additional Sessions Judge, Jalaun at Orai in S.T. No. 242 of 1979, State v. Puttu Singh, Ghasi alias Ghasote and Mathura, under Sections 399/402, I.P.C. and Section 25 of the Arms Act, P.S. Dakore, whereby he convicted Puttu Singh, Ghasi alias Ghasote, Mathura and Sheo Singh present accused-appellant of the offences under Sections 399/402, I.P.C. and sentenced each one of them to suffer R.I. for 5 years for the offence under Section 399, I.P.C. and R.I. foraperiodof3 years for theoffence under Section 402, I.P.C. and further con­victed Puttu Singh, Ghasi alias Ghasote and Mathura accused-appellants of the offence under Section 25 of the Arms Act and sen­tenced each one of them to undergo R.I. for a period of (sic) half year.
(2.) DURING the pendency of this ap­peal, Mathura accused-appellant died and consequently the appeal abates to his ex­tent. Puttu Singh accused-appellant is not traceable as yet. Ghasi alias Ghasote and Sheo Singh accused-appellants are repre­sented by their counsel. Heard their coun­sel and learned A.G. A The prosecution story, briefly, stated, was that on 28-8-1979, in the eve­ning an information was received by the S.O. Ramayan Singh of Police Station Dakore, District Jalaun that a gang of dacoits would assemble at the Mazar of Dadiya-wala-baba and would prepare to commit dacoity at the house of Ram Das Verma in village Mohana in mid-night, that this information was entered in the G.D. of the Police Station at 8.15 p.m. and the S.O. then made a departure from the police station with Chandra Bhan Dubey, 5.1 and the police force with the V.L.P. pistol, arms and ammunitions and torches and reached at the bus stand of village Mohana and took from there Ram Das Verma, Bhag Chandra Tripathi, Shrec Ram, Bhan Singh and Balwan Singh ard apprised them of the purpose and sent two constables to the house of Ram Das Ven la and then made departure for the spot r d then arrived at the temple near the Mazar of Dadiya-wala-baba that after reaching there he made three parties that party No. 1 was made by him (the S.O.) in his own leadership, which included Bhagya Chandra Tripathi, P.W. 1 and it was posted at a distance of 25 paces towards North from the Mazar in theAar of Mahuli tree and a Teela, that party No. 2 was formed in the leadership of S.I. Chandra Bhan Debey, P.W. 3 and included public wit­nesses Ram Das Verma and Balwan Singh P.W. 2 that party No. 2 was posted at a distance of 25 paces towards North-West from the Mazar and in the Aar of Babul tree and Teela that party No. 3 was formed under the leadership of Ram Gopal Singh, Head Constable and it included a Con­stable and a public witness Sri Ram Tripathi, that was posted at a distanceof 30 paces towards west of the Mazar in the/tar of Teela. Necessary instructions were given to the force and public witnesses, that on 11.30 p.m. two bad characters came from the south of the Mazar from the side of the river which was following at South-East from the Mazar and sat at the North of the Mazar adjacent to it and started smoking Biries and started talking to each other, that one of them was saying, "Sardar Nahin Aya", that then three more bad characters came from the same direction and joined the earlier two persons and started saying, "Ram Das Ke Yahan Dacoity Dalna Hai. Pahley Bandook Per Kabja Karney Hai". After it, one bad character shouted "Jai Ho Dadiya-wala-baba" retorting, "Chalo Dacoity Ka Samai Ho Gaya Hai", that thereupon, the S.O. and Chandra Bhan Dubey S.I. got satisfied that it is a gang of dacoits assembled and preparing to com­mit dacoity and consequently, the S.O. challenged the dacoits and fired with V.L.P. saying that they are under the seize of the police and commanded them to surrender their weapons otherwise, they would be shot dead; that the fire from V.L.P. created light, that all the three raiding parties sur­rounded the bad characters and arrested four of them, namely Puttu Singh, Ghasi, Mathura and Sheo Singh (who were ac­cused-appellants before this Court) but Babbu alias Babu Ram co-accvsed managed to escape from the spot; that on a search being taken, a double barrel gun along with belt of cartridges carrying five live cartridges and a torch were recovered from the possession of Puttu Singh ac­cused-appellant; that a Girinar gun with a live cartridge loaded in it and five Jive cartridges were recovered from the posses­sion of Ghasi alias Ghasote accused-ap-nellant along with a torch; that a gun with a live cartridge in the barrel, a torch and 9 live cartridges were recovered from the possession of Mathura accused-appellant and a pharsa was recovered from Sheo Singh accused-appellant; that a recovery memo was prepared at the spot about the recoveries made from these accused-ap­pellants and the recovered properties were sealed there and that then the police force returned to the police station along with the arrested accused and the recovered articles and lodged them at the police sta­tion. The prosecution case furtherwas that the accused-appellant Puttu Singh, Ghasi and Mathura did not have any licence for the fire-arms recovered from their posses­sion. On the basis of the recovery memo which was prepared at the spot, the head constable prepared the chik report at the police station at 4.10 a.m. on 29-8-1979 and a case was registered under Sections 399/402, I.P.C. against all of them and separate cases were registered under Sec­tion 25, of the Arms Act against Puttu Singh, Ghasi and Mathura accused-appel­lants.
(3.) THE prosecution case further was that the gun recovered from Puttu Singh accused-appellant was obtained by him by committing the murder of Babbo Singh of lemro about which a case was pending in the Court and the gun recovered from Mathura accused-appellant was one which had been stolen by making house breaking by night at the house of Kacchi about which also a case was pending in Court. Necessary sanction for prosecution under Section 25 of the Arms Act was obtained from the appropriate authority.;