KHAYALI Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been filed by Khyali, Shanker, Horam and Phool Singh against their conviction under section 299/402 I P.C. and 25 Arms Act and sentence of various terms of imprisonment-vide the judgment of Shri V. S. Kulshresth, AddI. Sessions Judge, Moradabad dated 22.7.1976.

(2.) Out of the above appellants Phool Singh has died and his appeal has abated.

(3.) The case against the appellants was that on 12.8.1972 at about 8.05 p.m. a secret information was received that 7 or 8 miscreants would assemble in the verandah of the Kothri of the tube-well operator and could commit dacoity at the house of one Masooq Ali resident of Bakenia. Rajendra Singh Station Officer left with the police force after making an entry in the General Diary and took with him constables and reached the tube-well by 10.30 p.m. He sent some constables to the house of Masooq Ali with Sub-Inspector Ram Veer Singh. After taking the evidence of the public witnesses, he divided the force in three parties and took mutual search of the members. He headed the first party of four constables and two witnesses of the public namely Razik Ali and Shah Nawaz P.W. 5. The second party was headed by Ram Veer Singh with three constables and Ram Swarup and Chhidah public witnesses and the third party was headed by S. I. Gulab Singh with four constables and two witnesses of the public including Shariff Ahmed P.W. 4. The parties took their position on the west of the tube-well on the south of the Kothri and towards the east of the Kothari at about 11.30 p.m. At about 12.00 in the night the dacoits started coming and sat in the verandah and started smoking bins. They were discussing that now was the right time to commit dacoity and the Pahalwan had not turned up, that there was no licence-holder in the village Bakenia and that they would get good properties. After hearing the conversation the police party ascertained that it was a gang of dacoits. The Station Officer then flashed his torch and challenged the dacoits to surrender their weapons. Despite this challenge one bullet was fired and simultaneously all the members of the three parties flashed their torches and attacked the dacoits and succeeded in arresting all the six dacoits. The arrested dacoits were interrogated. From the possession of Khayali a pistol, live cartridges, torch and a bin bundle and from the possession of Shanker one pistol, four live-cartridges, Bin bundle Ex. 17 to Ex. 23 were -recovered. Horam had a Sooja and Bin bundle Ex. 24 and Ex. 25 and Phool Singh had a Sooja Ex. 26. The other two dacoits Sobi and Udal were also arrested. The articles were scaled and a memo was prepared. Thereafter, the accused were marched to the police station and report Ex. Ka. 5 was lodged. A case was registered in the General Diary. The articles were kept in the Malkhana of the police. Sri R. P. Mishra was entrusted with the investigation of the case. He interrogated the witnesses and prepared site-plan, Ex. Ka. 8. He found small pieces of Bin and matchsticks towards the east of the Kothri in the verandah and took them in possession vide memo Ex. Ka. 9. After completing the investigation he submitted charge-sheet, against the appellants.