DHAKKU Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal appeal has been filed under section 374 (2) Cr.P.C. against the judgment and order dated 5.2.1982 passed by the IVth Additional Sessions Judge, Mathura in S.T. No. 570 of 1978 (Crime No.161 of 1977) under section 395 and 412 I.P.C. P.S. Baldeo, District Mathura ' State Vs. Dhakku and others' arising out of committal order dated 19.12.1978 passed by the then IIIrd Additional Munsif Magistrate, Mathura whereby the learned Additional Sessions Judge has convicted and sentenced each of the appellants (1) Dhakku S/o Ram Dayal, R/o Village Lokera, P.S. Sadabad at present Sailkhera, P.S. Baldeo, District Mathura (2) Balaram S/o Hari Singh, R/o Village Hathkali, P.S. Baldeo, District Mathura (3) Layak Singh S/o Gulab Singh, R/o Village Lokera, P.S. Sadabad, District Mathura (4) Balvir Singh S/o Mishri Lal R/o Village N. Mauji, P.S. Sahpau, District Mathura under section 395 I.P.C. with R.I. for 7 years on the ground that findings of guilt recorded by the learned trial court against them is against the weight of evidence on record and illegal. They are based on conjectures and surmises.

(2.) ALL the aforesaid four accused appellants were charged under sections 395 and 412 I.P.C. on 22.7.1981. They pleaded not guilty and claimed their trial. However, none of the accused has been convicted and sentenced under section 412 I.P.C. against which no criminal appeal has been preferred. During the pendency of the appeal accused Balvir Singh (appellant no. 4) has died, therefore, his appeal has stood abated vide order dated 6.8.2009.

(3.) AFTER making appraisal of the evidence learned trial court recorded its finding of conviction of all the four accused and sentenced them as aforesaid holding that the factum of dacoity is proved; the light available on the spot was sufficient for first informant Mormukat to recognize and identify the faces of the dacoits. Proof of fire arm injury sustained by Sanehi Lal and injury sustained by prosecution witness Neksa; recovery of empty cartridges and sample of ashes apart from the recovery of Lantern and Torches and good identification of appellants by first informant Mormukat and the identification of their looted articles recovered from the possession of the appellants by him and his wife Smt. Shanti Devi are sufficient to hold that; Prosecution has proved its case against all the four accused beyond doubt. Since, prompt recovery of the booty within 24 hours of the incident was made from the possession of all four accused persons, therefore, in the opinion of the trial court, it was sufficient to hold them guilty for the offence punishable under section 395 I.P.C. and there was no need to punish them under section 412 I.P.C. in view of the fact that, according to him, it was a surplusage and redundant. Since, the accused were found guilty of the offence of dacoity itself, therefore, possession of loot property will not constitute a distinct and separate offence, hence, learned trial court did not award any sentence on the charge under section 412 I.P.C.