AMAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) APPELLANTS Amar Singh, Kunwar Pal and Nawal Singh @ Kaluwa have preferred this appeal against the judgment and order dated 30th May, 1981, passed by Sri R.N. Tiwari, VIIth Additional Sessions Judge, Aligarh in Sessions Trial No. 257 of 1980. All of them have been convicted under Sections 399 and 402 IPC and sentenced to undergo five years' rigorous imprisonment on each count. Appellants No. 2 and 3 Kunwar Pal and Nawal Singh @ Kaluwa have further been convicted under Section 25 Arms Act and each sentenced to rigorous imprisonment for two years.

(2.) THE case was that on 8 -2 -1977 S.I. Totaram PW -4 with Constables Mahendra Singh and Rajendra Singh was on patrol duty and reached near the culvert Bambi Tochhigarh at about 10.45 p.m. There he met S.I. Sohan Pal Varshney alongwith four other Constables, namely, Nem Singh, Misri Lal, Raj Singh and Ramesh. He gained information that a gang of dacoits would Assemble at the Dharamshala on Hathras -Iglas road for committing dacoity at the house of Mukandi of Harrampur. There being no village nearby, public witnesses could not be available. The police personnel searched each other and made sure that none had incriminating articles. Two parties were formed to nab the outlaws. One was headed by S.I. Tota Ram PW -4 consisting of Constables Rajendra, Mahendra and Raj Singh and the other one by S.I. Sohan Pal Varshney PW -1 with Constables Nem Singh, Misri Lal and Ramesh Chandra. Both the parties took position near Dharamshala at about 11.15 p.m. The whispering of miscreants present inside the Dharamshala was heard and one of them was saying that Chhanga Ustad had not yet reached and it was useless to wait for him. He was further heard saying that he had seen the house of Mukandi Lal where dacoity was to be committed and as such they should proceed to complete the mission of committing dacoity. On such hearing S.I. Tota Ram PW -4 became confident about the presence of gang of dacoits. He challenged them and fired two VLP shots. About 6 -7 bandits ran towards the south of Dharmshala. The police party chased them and caught hold of three of them (appellants) at a distance of 6 -7 paces from the Dharamshala. They disclosed their names son being inquired. They also disclosed the names of run away dacoits. One SBBL gun (factory made), five cartridges and certain other articles were recovered from Kunwar Pal whereas one country made pistol and three live cartridges were recovered from Nawal Singh @ Kaluwa. Phards were prepared and ultimately, the appellants were brought to police station where the FIR was lodged. Investigation followed which resulted in submission of charge -sheet, ultimately culminating in the conviction of the three appellants as stated hereinabove. The defence was of denial and of false implication.

(3.) AT the hearing of the appeal none appeared from the side of appellants, though they are represented on record by Sri Mohan Chandra Advocate. I have heard learned A.G.A. from the side of the State in opposition of the appeal and examined the record including the evidence with his assistance.