B.K. Sharma, J. - (1.) This is an appeal against the judgment and order dated 10th December, 1990 passed by Sri S.S. Rudra, the then special Judge (Dacoity Affected Area), Mainpuri in S.T. No. 216 of 1981, State v. Lal Singh and 4 others whereby he convicted the present accused appellants for the offence under Section 394 IPC and sentenced each one of them to undergo rigorous imprisonment for a period of seven years and further convicted them of the offence under Section 411 IPC and sentenced each one of them to undergo rigorous imprisonment for a period of three years. Both the sentences were directed to run concurrently.
(2.) Out of the accused-appellants, Hukum Singh and Prakash Chandra accused-appellants are real brothers inter se being residents of Khairabad, Police Station Jahanabad, district Fatehpur. Chandrika Prasad accused-appellant was also the resident of the same village Khairabad, police station Jahanabad, district Fatehpur. Lal Singh accused-appellant was resident of Azmatpur, police Station Dibiyapur, district Etawah (now district Auraiya).
(3.) The prosecution story briefly stated is as follows : (a) There is a firm Panna Lal Banarasi Das at Kanpur at which Hari Shanker (PW- 4), Amar Nath informant (PW- 1) and one Sharda Charan were employed. On 28.10.1980, Hari Shanker carried 5 lakh cash and Amar Nath and Sharda Charan carried silver metal from the said firm to Delhi by train and on 20.10.1980 on reaching Delhi went to Lunia & Co. and later on went to the Delhi Branch of the (Panna Lal Banarsi Das) and delivered the said cash and silver to Gaya Prasad Lath (PW- 16) employed at the Branch the same day. However, the same day, a telephone message from Kanpur firm having been received by Gaya Prasad to send back other said Rs. 5 Lakh with Afnar Nath (PW- 1) and Sharda Charan he gave Rs. 31/2 lakh to Amar Nath (PW- 1) and Rs. 11/2 lakh to Shard Sharan for being carried to the Kanpur firm. Amar Nath (PW- 1) tied the cash given to him inside his holdall while Sharda Charan safely tied the cash entrusted to him around his loin and went to the railway station and boarded in a three tier bogie in 12 Down Delhi-Howrah express from Delhi for Kanpur in the night between 29th/30th October, 1980. (b) Gaya Prasad Lath (PW- 16) had come to the railway station to see them off. He saw that two persons in police like dress were strolling on the platform. When the train started, Gaya Prasad got down from the bogie and the said two persons boarded the bogie. Earlier he had seen these two persons eating Chat in Chandni Chowk Delhi in front of the Delhi Branch of the firm. Amar Nath informant and Sharda Charan both were having reservation of berths in the bogie. Electric light was burning in the bogie. Amar Nath informant was keeping the holdall under his head (pillow). Sharda Charan and other co-passengers of the bogie were on their respective berths. Besides them, some extra persons were also travelling in the gallery of the bogie without any reservation. When the train reached Ghaziabad railway station, the informant had seen two persons standing in the gallery wearing khaki dress similar to one worn by policemen, one of whom was carrying a gun. He kept awake all the night. Then at abut 4.45. A.M., the train started from Shikohabad railway station. When it was still moving slowly, one culprit, who was travelling in the same bogie suddenly dragged the holdall from under the head of the informant whereupon the informant got up and caught the holdall. A struggle tookplace between him and the said culprit and his three companions. One of the said companions of the said culprit put the barrel of his gun at the cheek of the informant causing slight injury and the said culprit passed on the holdall to his another companion who, in his turn, passed it on to his third companion. The first culprit then jumped down from the compartment and his companions three also followed him. The informant chased them and got down from the train and followed them but one of the culprits threatened him at the point of gun with dire consequences if he chased and then the other co passengers of the bogie advised him to come back to the compartment. Consequently, he boarded the same bogie. He had received some injury while getting down from train. Then had stop the train by pulling the chain but could not succeed. There was electric light present in the compartment all along. When the train reached Etawah railway station, the informant lodged a written FIR (Ext. Ka-1) at police station G.R.P. Etawah at 6.15 A.M. on which basis a Chick report was prepared and a case was registered under Sections 394/397 IPC against four unknown persons. (c) The informant was sent for medical examination. His injuries were medically examined by Dr. Sharad Mehrotra, Medical officer (Emergency), District Hospital, Etawah at 8.30 A.M. The doctor found a contusion on his right side cheek and abrasions on his fingers and left toe. (d) The investigation of the case was entrusted in Nov. 80 to Suraj Singh, Inspector C.B. C.I.D. Sector Agra (PW- 48). He recorded the statement of informant, inspected the scene of crime on his pointing out, prepared site plan and then went to Delhi and recorded statement of Gaya Prasad Lath P.W. 16 and inspected the records of the firm Pannalal Banarsi Das. He went to Kanpur and then examined Han Shanker P.W. 4, Durga Prasad Goel P.W. 3 and others. Durga Prasad Goel was one of the co-passengers in the compartment wherein the occurrence took-place. On 17.12.1980, the I.O. received an information that constable driver Hukum Singh lives in police station Collectorganj and that his own brother Prakash Chandra had been dismissed from police at Lalitput and usually lives there and that both of them are squandering money and have purchased motor cycle and that they were the residents of Village Khairabad, Police Station Jahanabad district Fatehpur. On this information he deputed constable Prakash Chandra C.I.D. Sector Kanpur to collect information. It came out from the information collected by Prakash Chandra constable C.I.D. that apart from Hukum Singh and Prakash Chandra accused appellants one Chandrika also was squandering money and that one friend of theirs namely, Lal Singh had also come. On this information on 28.12.80, Surjan Singh Inspector (PW- 48) and O.P. Tyagi Inspector, C.B. C.I.D. Agra (PW- 8) and others rached Jahanabad and there at 1.30 P.M. they received information from a reliable informer that Prakash Chandra and Chandrika Prasad are coming from village towards town Jahanabad by Patri of Banda Kora Jahanabad. They, therefore, took public witnesses and after taking mutual search, left the vehicle behind and came at the culvert of town Kora Jahanabad at 2.00 P.M. from where the pucca road passes and arrested Chandrika Prasad, and Prakash Chandra accused appellants at 2.30 P.M. from that Pulia. On a search being taken Rs. 5,000 consisting of currency notes of Rs. 100/each tied in a Gaddi were recovered from the pant pocket of Prakash Chandra accused appellant and recovered Rs. 7,500/tied in a Gaddi, consisting of currency notes of Rs. 100/each from the possession of Chandrika Prasad accused-appellant, and prepared separate recovery memo Ex .Ka-111 and Ex. Ka-112 about the respective recoveries. There were seal of the firm and signatures of Gaya Prasad on each Gaddi. These recovered currency notes were material Exts. 2 and 1 respectively. Both the accused appellants were made baparda and were interrogated. From their interrogation, the involvement of Lal Singh and Hukum Singh accused-appellant, who were employed in police Kanpur at Rasoolabad came to light and it also came to light that some money of loot had been deposited in post office and in bank. (e) On Interrogation, Chandrika accused-appellant offered to give N.S.C. F.D.R. receipts and pass-book relating to the aforesaid money. On this Suraj Singh Inspector (PW- 46) and O.P. Tyagi Inspector (PW- 18) were taken by Chandrika Prasad accused-appellant to his Kotha in village Khairabad where he took out from a box a pass-book of current account issued by Koda Jahanabad Branch of District Co-op Bank, Fatehpur in his name i.e. in the name of Chandrika Prasad accused-appellant for Rs. 4000/bering the photograph of Chandrika Prasad Ex. 59: 12 NSC. of Rs. 500/each (i.e. for a total sum of Rs. 6000/-) in the name of Chandrika Prasad accused appellant issued from post office Jahanabad Ex. 61-72, a fixed deposit receipt for Rs. 9,000/issued from the same branch of the same bank in the name of Chandrika Prasad accused-appellant and Smt. Pana Devi Ext. 60 and a receipt for depositing Rs. 9000/in the same branch of the said bank. A memo Ext. Ka-114 was prepared about it. After this Suraj Singh Inspector returned to police station Jahanabad where both the accused-appellants were lodged Baparda in the lock up of the police station and the recovered property was also lodged at the police station. (f) It was revealed that Chandrika Prasad accused-appellant had deposited Rs. 4000/in his S.B. Account No. 2627 on 6.12.80 in Fatehpur District Co-operative Bank Koda Jahanabad whose deposit voucher was Ext. Ka-104 and that Chandrika Prasad and Smt. Pana Devi deposited Rs. 9000/in term deposit Khata No. 425 in the same bank on 6.12.1980 whose deposit voucher was Ext. Ka-105 and signature card was Ex. Ka-106 and that he purchased N.S.Cs. of Rs. 6000/from Koda Jahanabad post office on the same day i.e. 6.12.1980. (g) A search was made for Lal Singh accused-appellant and then O.P. Tyagi (P.W. 18) and Raghunath Prasad Inspector were deputed to arrest constable driver Hukum Singh accused-appellant. (h) O.P. Tyagi and Raghunath Prasad, Inspectors came to Kanpur and went to police station Rasoolabad on 28.12.80 and arrested constable driver Hukum Singh accused-appellant from there and made him Baparda and at 11.55 p.m. made entry in G.D. of P.S. Rasoolabad and brought him to Kanpur and lodged at P.S. Juhi on 29.12.80 at 2.45 A.M. (i) While on 28.12.80 Surjan Singh Inspector P.W.48 was returning from searching for accused-persons, he received information from a reliable informer at Chauraha Sara Devi at 10.00 P.M. that Lal Singh accused-appellant is about to reach his house in Safed Colony Govind Nagar, whereupon he took witnesses Zile Singh P.W.40 and Sunil Mishra and after taking mutual search reached at Safed Colony at 10.30 P.M. and arrested Lal Singh accused-appellant at 10.45 P.M. from the road infront of his house when he reached there. On a search of his person being taken Rs. 71/(material Ext. 75) in cash and keys of an attached-case were recovered from his coat-pocket. On his interrogation, the LO. got the clue of his link with the trainrobbery of this case. He, therefore, made him Baparda and at his pointing, took him to the upper story of his house where he (this accused-appellant) got the door of its eastern room opened from his wife and took out an old Dibba of tin from inside the attachee case which was concealed in a large box of tin underneath cloths. This accused-appellant Lal Singh opened the Dibba tin with the said key recovered earlier from his possession. When this accused-appellant opened the Dibba of tin, it was found containing Rs. 63,200/in currency notes. These contained six Gaddies of Rs. 10,000/each consisting of currency notes of denomination of Rs. one hndred (material Exits. 9 to 14) and 32 loose currency notes of Rs. 100/each (material Ext. 74). The Gaddies which were recovered, were having the seals of the firm Pannalal Banarsidas, Delhi on the Chits affixed to them and the chits were also bearing the signatures of Gaya Prasad Lath P.W. 16 aforesaid dated 29,10.1980. These recovered currency notes were sealed in the same tin Dibba. A licensed gun and cartridges were also recovered from the same attachee. A recovery memo Ex. Ka. 116 was prepared and then the accused appellant and the recovered exhibits were brought to the police station Juhi and lodged there. (j) Surjan Singh Inspector interrogated Hukum Singh accused appellant at police station Juhi. He disclosed that from the money which he and his brother Prakash Chandra received in their share of the loot of train docoity, they purchased utensils, rings (ornaments) and a motor cycle (kept at the house) and have also purchased N.S.C. from the post office Kora jahanabad and Rs. 20,000/had been deposited in the name of Prakash Chandra accused-appellant on 4.12.1980 in special Term Deposit at Lalitpur Branch of Bank of India, and volunteered to go to his (own) house and give all these articles. On this, Surjan Singh and O.P. Tyagi, Inspectors took Hukum Singh accused-appellant to his house situated in the campus of police station collectorganj. In the presence of witnesses, Hukum Singh accused-appellant went ahead and took out 20. N.S.Cs. of Rs. 1000/each issued on 10.11.1980 in his own name from post office Kora Jahanabad Ex. Ka 118 to Ka. 137, twenty N.S.Cs, of Rs. 1000/each issued on 10.11.1980 in the name of Prakash Chandra accused-appellant from the post office Jahanabad Ex. Ka. 138 to Ka. 157, a Special Term deposit receipt of Rs. 20,000/(Ext. Ka. 158) issued by Lalit pur Branch of State Bank of India in the name of Prakash Chandra accused-appellant, two gold rings (material Ext. Ka 76 and 77), new utensils of stainless steel Ex. 79 to Ex. 102 from a large box found in the house, concealed below clothes in the box. They also found a bullet motor cycle (Material Ext. 78) standing there in the house. All these recovered articles were taken into custody. A SBBL gun Ex. 103 gun and 15 live cartridges (material Ext. 104) were also recovered from there. Necessary recovery memo Ex. Ka. 117 was prepared. The N.S.Cs. and S.T.D.R. were sealed in an envelope and the utensils were sealed in a gunny bag, the gold rings were sealed in a match box. Hukum Singh accused-appellant had told him that these N.S.Cs. and S.T.D.R. also had been purchased from the money looted in train dacoity. These recoveries were dated 29.12.80. The recovered articles were lodged at Police Station Collectorganj, Kanpur while Hukum Singh accused-appellant was lodges Baparda in the lock-up police station Juhi. (k) The same day, on receipt of information from Hukum Singh accused-appellant that out of the looted money, he and his brother Prakash Chandra accused appellant given Rs. 80,000/to Constable Bishambher Singh Yadav, Resident of Baragaon, Police Station Kotwali, Hamirpur and posted in the police lines of Lalitpur and he was told to keep this money and permitted to spend out of it in case of need but return the whole money later on. On 30.12.1980, Surjan Singh Inspector reached Hamirpur and took Sughan Singh S.O. P.W. 41 with force from police station and reached village Baragaon and took witnesses and reached at the house of Bishambhar Singh (P.W. 17). Bishambhar Singh disclosed that on 4.12.1980, Hukum Singh and Prakash Chandra accused-appellants came at his quarter at Lalitpur and while Hukum Singh accused appellant went away saying that he would meet at the bus stand, Prakash Chandra accused appellant gave him (Bishambher Singh) Rs. 80, 000/consisting of currency notes of 1000/each in the form of 4 Gaddis of Rs. 20,000/each containing rubber rings over them, and that Prakash Chandra accused-appellant had also told him that this money is of his house and had also asked him to spend this money and return it later on that he took leave and came to his village Baragaon in district Hamirpur alongwith this money, that out of that money, he (constable Bishambhar Singh (P.W. 17) purchased a motor cycle for Rs. 13,000/from Shyam Behari Shukla and also purchased a gun alongwith cartridges for Rs. 2355/and spent some money on house etc. and that only Rs. 57,000/were left with him. He gave these remaining currency notes of Rs. 57,000/to the Inspector. These currency notes were in paddies. Each Gaddi was having seal of the firm Panna Lal Banarsi Das, Delhi. These gaddies were of currency notes of the denomination of Rs. 100/each out of these gaddies, five gaddies contained one hundred notes each being Ex. 3-7 and the sixth gaddi ext. 8 contained only seventy currency notes of rupees one hundred each. The inspector took these currency notes into custody and sealed them and also took into custody, motor cycle (Ex. 17) gun (Ex. 18) and cartridges (Ext. 19-43) given by Bishambhar Singh P.W. 17 and prepared memo (Ex. Ka-51) about it. (1) On 3.1.1981, Surjan Singh Inspector again interrogated Lal Singh accused-appellant at police station Juhi during which he disclosed that he had given Rs. 5000/to Hira Chandra R/0 Sirki Mohal, Police Station Collectorganj, out of the same money by way of payment against a loan outstanding and also offered to get it recovered, whereupon he was taken out by the inspector from the lock-up Baparda and taken to the house of Hira Chandra Jethmal at about 1 A.M. There the inspector met Hira Chandra Jain P.W. 32 who offered to return the money in the morning after looking into the Rokarbahi whereupon this accused-appellant Lal Singh was taken back to the police station and lodged in the lock-up Baparda and later in the day (3.1.1981) itself Hira Chandra Jain presented Rs. 5,000/to the inspector regarding that payment who took it in custody in presence of witnesses. A memo Ex. Ka. 160 prepared about the same. These currency notes of Rs. 5000/were material Ext. 106. Lal Singh accusedappeilant had borrowed Rs. 5000/from Hira Chandra Jain on 9.6.1980 and had paid back Rs. 5000/to him on 5.12.1980. Surjan Singh Inspector examined the Rokerbahi of Hira Chandra Jain and found therein entries about the deposit of Rs. 5000/and of its return. Ex. Ka. 168 is the extract of the cash book. (m) The same day on 3.1.81 Surjan Singh Inspector further interrogated Lal Singh accused-appellant who consequently disclosed that out of the money of this loot he got the money deposited in his own name and in the name of his daughter and also disclosed that the documents about the deposits have been kept by him behind the photo of Radha Krishan in his house which he can give after going there. On this he was taken Baparda from the lock up of the police station to his house and there on his pointing out, these documents, namely two F.D.Rs dated 22.12.1980 of Rs. 10,000/each in the name of Lal Singh accused- appellant issued from Govind Nagar Branch of Allahabad Bank, Kanpur (Exts. 108 and 109) and S.T.D.R. of Rs. 20,000/(Ext. 110) issued from the State Bank of India, Govind Nagar Branch, Kanpur in the name of Km. Ishwar under the guardianship of Lal Singh accused-appellant were recovered. Recovery Memo Ex. Ka. 161 was prepared about it. Inquiry from the bank confirmed these deposits. A true copy of the Khata of the branch of Allahabad Bank and the signature card of Lal Singh accused were Ext. Ka102 and Ka-103. Ext. 73 was the deposit form about this amount of Rs. 20,000/signed by Lal Singh accused-appellant. (n) On 2.1.1981, O.P. Tyagi Inspector P.W. 18 took Hukum Singh accused-appellant Baparda to Jahanabad to the house and shop of Jhabboo alias Jamuna Narain P.W. 34 but could not find him and so returned to the police station Juhi and lodged Hukum Singh accused-appellant there Baparda. Then on 3.1.1981, O.P. Tyagi Inspector again took Hukum Singh accused-appellant to the house and shop of Jhabbu alial Jamuna Narain. On being asked, Jhabbu alias Jamuna Narain gave currency notes of Rs. 10,000/(Ex.58) to him in presence of public witnesses saying that this money was given to him by Hukum Singh accused-appellant for preparation of ornaments. The Inspector prepared memo Ext. Ka-52 about the same, thereupon O.P. Tyagi Inspector lodged the recovered money at the police station Jahanabad and lodged Hukum Singh accused-appellant Baparda at P.S. Juhi. (o) Then on the basis of information given by Hukum Singh accused-appellant, Surjan Singh Inspector P.W. 48 went to Chunni Lal Kamaria (P.W.43), resident of village Athan, P.S, Mehrauli, District Lalitpur on 19.1.1981 and took his statement. Chunni Lal told him that the currency notes of Rs., 3000/were given to him by Hukum Singh driver of Kanpur on 4.12.1980 and deposited these currency notes of Rs. 3000/(Ex.III) with him (i.e. with the inspector). He prepared a memo Ex. Ka-164 about it and deposited each property at P.S. Jahanabad. (p) On 22.1.1981, Surjan Singh Inspector verified from the office of S.S.P. Kanpur the service record of Hukam Singh and Lal Singh accused-appellants and obtained a certificate Ext. Ka.166 about the monthly salary in respect of Hukum Singh and Lal Singh accused-appellants since they were employed as constables in the police. (q) The identification proceedings in respect of all the four accused-appellants were conducted by Sri G.C. Saxena, Special Executive Magistrate, Mainpuri on 4.2.1981 at District Jail, Mainpuri. In the identification proceedings, Amar Nath informant P.W.1 correctly identified all the 4 accused-appellants and did not commit any mistake. Durga Prasad P.W. 3 correctly identified Hukum Singh and Lal Singh accused-appellant without making any mistake while Gaya Prasad Lath P.W. 16 correctly identified Hukum Singh and Lal Singh accused appellant at the identification parade without making any mistake. Surjan Singh Inspector submitted charge-sheet in this case against all the accused-appellants. (r) After committal, all the 4 accused-appellants were charged for the offence under Section 394 I.P.C. for committing robbery of currency notes of Rs. 3,50,000/from the possession of Amar Nath informant and having caused hurt to the said Amarnath while committing robbery. Besides this, Prakash Chandra accused-appellant was charged of the offence under Section 411 I.P.C. on 3 counts: one was for being found in possession of currency notes of Rs. 5000/on 28.12.1980 at Kora Jahanabad, Police Station Jahanabad, District Fatehpur which he had obtained by commission of robbery on 30.10.1980 and which he knew to be a stolen property, on the second count, he was charged for purchasing National Saving Certificates of Rs. 20,000/in his name on 10.11.1980 at post office Cora Jahanabad out of the currency notes obtained by committing the said train robbery and having knowledge of the same to be stolen property. In the third count, he was charged for having purchased special term deposit certificate for Rs. 20,000/in his name on 4.12.1980 from State Bank of India, Lalitpur out of the currency notes which were obtained by him by committing train robbery aforesaid and having the knowledge of the same to be the stolen property. (s) Chandrika Prasad, accused-appellant was also charged under Section 411 I.P.C. on 2 counts. Firstly, for having been found in possession of currency notes of Rs. 7500/on 28.12.1980 in Cora Jahanabad which he had obtained by committing the said robbery and knowing fully well that the said currency notes are the stolen property. The second count was that on 6.12.1980, he purchased National Saving Certificates for Rs. 6000/in his name at post office Jahanabad and purchased fixed deposit certificate of Rs. 9000/in the name of his wife Smt. Panna Devi and himself and deposited Rs. 4000/in current account in District Co-operative Bank Jahanabad in his own name which have been abated by him, by commission of train robbery aforesaid which he knew to be stolen property. (t) Hukum Singh accused appellant was further charged for the offence under Section 397 I.P.C. for having used deadly weapon namely a S.B.B.L. Gun in an attempt to cause grievous hurt to the informant while committing robbery of cash of Rs. 3,50,000/from his possession. He was further charged for the offence under Section 411 I.P.C. on two counts. Firstly, for having been found in his house on 29.12.1980 in possession of National Saving Certificates of Rs. 20,000/purchased in his name from post office Cora Jahanabad on 10.11.1980 from the cash which was looted in the trian robbery aforesaid and which he knew to be stolen property. Secondly, that on 30.12.1980 he was found in possession of currency notes of Rs. 57,000/which was recovered on his information in police custody from Bishambhar Singh police constable which the said Bishambhar Singh deposited with the police on demand on his information, which he (Hukum Singh accused-appellant) had obtained by the commission of the said train robbery and which he knew to be stolen property. (u) Lal Singh accused-appellant was further charged for the offence under Section 411 IPC on two counts. Firstly, for having been found in possession of currency note of Rs. 63,200/on 28.12.1980 at his house at Govind Nagar which he had obtained by commission of the train robbery aforesaid and which he knew to be stolen property. Secondly, for having been found on 3.1.1981 in possession of fixed deposit receipts for Rs. 20,000/each of State Bank of India, Govind Nagar and two fixed deposit receipts of Rs. 10,000/each of Allahabad Bank, Govind Nagar, at his house in Govind Nagar colony which deposit receipts he had obtained by depositing on 22.12.1980 currency notes obtained by committing robbery aforesaid or which he knew to be stolen property. (v) Ram Swaroop co-accused and Hukum Singh accused-appellant were further charged for the offence under Section 124. I.P.C. (w) The accused-appellants and also Ram Swarup co-accused pleaded not guilty to the respective charges framed against them.;