NATHWA Vs. STATE

JUDGEMENT

(1.) This is an appeal by ten persons, Nathwa, Niadar, Dharma, Lal Singh, Banwari, Pirbhu, Kirpal, Mohammad Taqi, Achchhan and Laltu, who have all been convicted under Sections 399 and 402, Penal Code, and sentenced to undergo rigorous imprisonment for four years and three years respectively under these two sections. In addition all these appellants have been convicted for the offence under Section 307 read with Section 149, Penal Code. Two of them, Kirpal and Mohammad Taqi alias Kalian have been sentenced to four years' rigorous imprisonment for this offence whereas the remaining eight persons, have been sentenced to three years' rigorous imprisonment. Mohammad Taqi and Kirpal nave further been convicted and sentenced to one year's rigorous imprisonment for the offence under Section 19 (f), Arms Act and Nathwa and Laltu have been convicted and sentenced to six months' rigorous imprisonment under Section 19 (f), Arms Act. All the sentences of imprisonment of all these appellants have been directed to run concurrently.

(2.) The incident in respect of which these appellants have been convicted is said to have taken place on 5-11-1948. It is alleged that all these appellants together with three other persons, Chokhey, Mangal and AH Husain, had collected in the garden house of one Vijay Vir Singh close to the village Chak Goverdhanpur on the night of 5-11-1948, for the purpose of committing a dacoity. Information of this assemblage was carried to the Station Officer Mehtoreby an informer. Station Officer informed the Superintendent of Police, Bijnor, who proceeded to village Chak Goverdhanpur with a large party of policemen, some of whom had fire arms with them. The party also included the Deputy Superintendent of Police. They met Station Officer of Police, Station Mehtore, with members of his staff close to that village. They also took two private citizens residing in Chak Goverdhanpur with them and the whole party then came towards the grove of Vijay Vir Singh. They surrounded the grove. The Superintendent of Police himself led the party which launched the attack on this assemblage of dacoits from the front side of the garden house which was towards the east. As these men approached firing started. A few shots were fired on both sides but no one happened to be injured. Thereafter, the Superintendent of Police happened to come close to the gathering of these men which was in the verandah of the garden house. Mohammad Taqi alias Kalian was the principal man who was firing towards the Superintendent of Police. The Deputy Superintendent of Police grappled with him and he was captured. One of the persons assembled there for the purpose of dacoity who was carrying a gun, ran away and it is alleged that this person was Kirpal, appellant. The remaining persons went inside the room where they were followed by the police officers. The Superintendent of Police threatened to shoot any one who refused to surrender at once and thereupon all these men surrendered themselves. Mohammad Taqi alias Kalian was found in possession of an English-made revolver. Chhokhey, who was also convicted in this case but who has not filed any appeal, was found in possession of a country-made single barrel 12 bore gun. Kirpal, the man who ran away, is alleged to have had a double barrel gun, Nathwa appellant had a sword and Laltu had a spear. A number of lathis were also found in the room when the appellants had surrendered themselves to the police. The case was then investigated. But no case could be worked out against the 13th man who had run away. Twelve persons were, therefore, sent up for trial. These twelve were the nine appellants (besides Kirpal) and Chokhey, Mangal and Ali Husain. During enquiry in the committing Magistrate's Court Ali Husain made a confession. He was then granted a pardon and was then examined as an approver. Ali Husain in his statement named Kirpal appellant and thereupon attempts were made to arrest Kirpal. It is alleged that Kirpal had absconded and proceedings had to be taken under Sections 87 and 88, Criminal P. C. Attachment of his property took place on 10-3-1949 and thereupon Kirpal surrendered himself in Court on 12-3-1949. He was sent to jail and then was put up for identification. Pour constables identified Kirpal as the 13th person assembled for the purpose of dacoity who had escaped with a double barrel gun. On this evidence all these appellants as well as Chokhey and Mangal were sent up for trial. The learned Sessions Judge held that the case against all of them was established and convicted them as mentioned above. Chokhey and Mangal did not appeal against their conviction so that the appeal before me is by ten appellants only.

(3.) In this case, so far as the nine appellants besides Kirpal, who were arrested on the spot, are concerned, the case against them is perfectly clear and is supported by very reliable evidence. The evidence of the Superintendent of Police himself proves the case against all of them. It is completely supported by the evidence of the station officer of police station Mehtore, by the statements of Shahbir Ahmad and Mohammad Hashim, the two private citizens residing in Chak Goverdhanpur who had accompanied the police party and by the evidence of a number of police constables, who did take part in this raid. There is absolutely no reason to disbelieve the evidence of any of these witnesses. The fact that these persons were assembled for the purpose of commission of a dacoity is also clear from the circumstance that Chokhey was found in possession of an unlicensed 12 bore gun, Mohammad Taqi alias Kalian of an unlicensed English-made revolver and Nathwa and Laltu of unlicensed sword and spear respectively. The evidence further discloses that the 13th man, who was also a member of the party, had been carrying a 12 bore double barrel gun. The conduct of this party also indicates that their object was not to gather for any peaceful purpose. These men knew that the police had come to capture them. The police were actually led by the Superintendent of Police himself. Had these persons been there for any innocent purpose, there was no reason at all for them to start firing at the police. They should have actually surrendered themselves and thereafter they should have convinced the Superintendent of Police that they were not the persons assembled for the purpose of commission of a dacoity and thus got away. In addition to all this evidence there is the evidence of Ali Husain approver who also says that all these men had assembled for the purpose of committing a dacoity.