HOTI Vs. STATE

JUDGEMENT

(1.) - Five appellants Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh and Durjan, being aggrieved by their convictions under sections 399/402 I.P.C. and imposed sentence of four years and three years RI respectively therefor, recorded by Illrd Additional Session's Judge, Mathura in S.T. No. 228 of 1980, State v. Hoti and others, have challenged it in the instant appeal. Appellants Hoti, Hari Singh and Ram Bharose @ Bhagwan Singh have further challenged their convicted under section 25 Arms Act and imposed sentence of one year RI for the said offence. Trial Judge has directed all the sentences of these appellants to run concurrently. Appellant Bhopal Singh has challenged his conviction under section 399/402 I.P.C. and his release on probation of good conduct for a period of two years on his executing a personal bond of Rs.2,000/- and one surety in the like amount with further direction that, in the event of breach, he shall appear before the Court for receiving sentence whenever he is called upon for the said purpose.

(2.) PROSECUTION allegations, as was narrated in the arrest and recovery memo, Ext. Ka-1, sketched by S.I. Jai Pal Singh of P.S. Vrindaban, District Mathura, were that the said inspector was on picket duty regarding identification of sensitive polling booths for the ensuing election along with S.I. Jawahar Singh, S.I. Sobran Singh and constables Kamal Singh, Ram Singh and Rajendra Singh on 11.5.1980. When the said police party was proceeding towards Chhathi- kara then, at trisection of Chhathikara and Parkham, an informer informed them that in the pen (tiwaria) of Maghera Pyau situated at Ral Road, some armed dacoits had assembled to loot roadster (Tonga) and other passengers. Receiving such an information, informant Jai Pal Singh (P.W. 2) joined police constables Nem Singh, Suresh Chandra, who were manning the traffic and dispatched them to collect independent witnesses from village Chhathikara After some time, these constables brought Moti Lal Pradhan, Banke Bihari and Brij Bihari, as independent witnesses, from the said village. Disclosing the reason for their summoning, police party along with those witnesses proceeded towards the incident spot from village Chhahtikara all along railway line and near the line they searched each other to rule out carrying of any illegal weapon etc. except the weapons issued by Government weaponry. Thereafter, I.O. divided the police party into three pickets. First party consisted of informant Jai Pal Singh, constable Suresh Chandra and Moti Lal Pradhan. Second party consisted of S.I. Jawahar Singh, constables Nem Singh and Kamal Singh and independent witness Brij Bihari. Third party consisted of S.I. Sobran Singh along with constables Ram Singh, Rajendra Singh and witness Banke Bihari. The police personnel were armed with revolvers and muskets, whereas independent persons were armed with clubs (lathies). All the three parties were instructed that party No. 1 shall surround the incident place from north east, party No. 2 shall surrounded it from back of pen and party No. 3 shall approached it from south west corner and they will lay in ambush at 1 P.M. All the parties were further instructed not to open fire unless challenged by the informant. All the three parties concealing them behind the agricultural crop, crossed the railway line and laid in ambush, at 3.30 P.M, at the directed spot and started hearing conversations of the miscreants. One of the miscreants uttered that it was noon time and very few passengers are coming and, therefore, the next female passengers of roadster be looted from whom good bounty can be fetched. Another dacoit expressed apprehension that the road is at quite a distance from where they were planning and by the time they will reach the road, Tonga (roadster) may speed away, and a third dacoit seconded this view and, therefore, all the dacoits got up from the place for the road. Believing the collected conglomeration to be a gang of dacoits, assembled to commit dacoity, that the inspector Jai Pal Singh, challenged the gang to lay down their arms, as they were surrounded by the police and, in the event, they will exchange fire or try to sprint away, they will be annihilated. On such thrown challenge, there was commotion amongst dacoits, who started sprinting away towards the road, but were chased by the police party and four out of them, Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh and Bhopal Singh (all the appellants) were apprehended at quarter to 2 P.M. One of the dacoit Durjan Jatav, who was very well known to the police party, however, made his escape good from the spot and could not be arrested. From the possession of Hoti, a SBBL gun and four KF special cartridges and two LG cartridges with one blank cartridge were recovered. From Hari Singh, a factory made gun and 50 grams gun powder, caps, 16 pellets were recovered. From the possession of Ram Bharose @ Bhagwan Singh, a country made pistol of 12 bore, three cartridges of KF special, one plastic cartridge of LG and missed cap was recovered. From the possession of Bhopal Singh, a country made pistol, five cartridges of KF special, one cartridge cap etc. were recovered. Besides this from appellant Hoti, a watch, from appellant Bhopal Singh, Rs.8.50 paise cash and from appellant Ram Bharose @ Bhagwan Singh, Rs.1.50 paise cash were also recovered. All these apprehended accused confirmed the identity of Durjan Jatav as the escaped dacoit. The arrest and recovery memo, Ext. Ka-1, was prepared by the Inspector J.P. Singh, which was counter signed by rest of the police personnel. Apprehended accused were brought to the police station and on the basis of Ext. ka-1, FIR of crime No. 155 to 159, under sections 399/402 I. P.C. and 25 Arms Act were registered against the accused appellants on 11. 5.1980 at 6.15 P.M. Aforesaid crime was investigated and ultimately S.I. Babu Ram Yadav, just after eight days of the incident, charge sheeted the appellants accused on 15.5.1980. Noted here is the fact that the I.O. was a subordinate officer of the informant Jai Pal Singh, who was the Inspector of Police.

(3.) LEARNED Trial Judge after looking into the prosecution evidences concluded that the charges under sections 399/402 I.P.C. have been established to the hilt and therefore, convicted all the appellants for the said charge. Appellant Durjan Jatav was also convicted under section 25 Arms Act. All the appellants were sentenced for those charges, which has already been mentioned in the opening paragraph of this judgment. Hence this appeal challenging both conviction and sentence.