MUNNA AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) Appellants Munna, Bhawani and Bal Singh have filed this appeal against their conviction and sentence under Sec. 395 Indian Penal Code to five years' R.I. each passed by Addl. Sessions Judge, Moradabad on 31.1.1978 in Sessions Trials No. 9 of 1976 and No. 284 of 1977.

(2.) At the time of admission of the appeal this Court had issued notice to the appellants why sentence awarded to them be not enhanced hence this appeal has been listed before the Division Bench for disposal under the Rule of the Court.

(3.) The charge against the appellants was that three appellants along with fourth acquitted accused Man Singh and four unknown persons on 26.9.1975 at about 11.45 P.M. near the brick kiln of Lala Gulzari Lal on Chandausi - Moradabad road, police station - Chandausi, district-Moradabad committed dacoity punishable under Sec. 395 Indian Penal Code. It may be mentioned here that at the stage of 227 Criminal Procedure Code the trial Judge discharged the fourth accused under Sec. 397 Indian Penal Code as according to him there was no evidence to proceed against any one of those accused under that Section, though charge-sheet showed that all the accused were sent up under Sec. 397 Indian Penal Code. It may further be mentioned here that Munna appellant was also charge-sheeted under Sec. 412 Indian Penal Code because of the alleged recovery of a wrist-watch from his possession at the time of his arrest which was said. to be a looted property. But there was no committal order in respect of Sec. 412 Indian Penal Code with regard to the said accused and, therefore, no charge was framed against the appellant Munna under that Section. However, since the learned trial Judge has recorded a finding that the alleged recovery of the wrist-watch was not proved to be a looted article, he has not used that evidence against him.