CHHOTEY AND OTHERS Vs. THE STATE

JUDGEMENT

(1.) -Heard. The facts giving rise to this appeal are that on 19/20.1973, one Hari Shankar of village Matroi, police station Iglas, District Aligarh lodged a complaint at the police station under Sec. 457 1PC for a theft in his house. The investigation of that case was entrusted to Udai Prakash (P.W.3), who proceeded to village Matroi and from there he went to village Lakhoi. Thereafter he went to guava grove within the limits of village Lakhoi where Babu son of Gariba and accused Chhotey were living alongwith their families. On 29.12.1973, it was about 4 P.M. they reached there. Chhotey and Babu were not found available and as such, their wives Smt. Birma and Smt. Om Vati were arrested. According to the prosecution version, the stolen property was also recovered from that but which was taken into possession and was sealed on the spot. Thereafter, the police came to village Matroi at the house of hari Shankar alongwith aforesaid arrested ladies and recovered stolen articles and called for more force from the police station. Public witnesses, namely, Kali Charan (PW 5), Chandra Kant (PW 6), Bhagwati Prasad and Bishambhar and Bankey were present there. Public witnesses and police officials were divided in two parties and they were asked to go from two different directions of but which was occupied by the family of Chhotey and Babu accused. On 19/20.12.73 at about 1.15 a.m. they surrounded .and apprehended three accused persons, namely, Chhotey, Babu and Soran, who were allegedly arrested on the spot and from the search of Soran and Chhotey, arms and ammunitions were recovered. According to the prosecution version one of the accused asked Chhotey to take out the gun and cartridges and told that they would commit dacoity at the house of Pradhan of village Matroi and thereafter from near the but a gun and cartridges which were hidden under ground, were taken out. On the basis of statement alleged to have been made by one arrested person, Podina one of the appellant was also arrested later on, On the basis of the evidence before the trial court, two of the accused, namely, Babu and Munshi were acquitted as the statements of the witnesses against them were not found to be convincing whereas the present appellants Chhotey, Soran and Podina were convicted under Sec. 399 read with Sec. 402 IPC, and sentenced to undergo R.I. for a period of five years under Sec. 399 Penal Code and three years R.I. under Sec. 402 IPC. Chhotey and Scram appellants were further sentenced under Sec. 25 Arms Act. Both the sentences were ordered to run concurrently.

(2.) Aggrieved, all these three convicts filed this appeal. During the pendency of the appeal, the appellant Chhotey died and the appeal against him stands abated whereas Soran and Podina persued this appeal.

(3.) Learned counsel for the appellants Soran and Podina drew my attention towards the facts and circumstances of the present case. He pointed out that when the two accused, namely, Babu and Munshi, who were named in the F.1.R., were acquitted by dis,believing the evidence o, the prosecution wit messes, it is strange how the statements of the witnesses can be believed against these appellants for their conviction. He also pointed out that the ingredient of Sections 399 and 402 Penal Code are also not fulfilled in the present circumstances of the case. It was only a case of-- committing theft in a house and the investigation was being done under Sec. 457 Penal Code and no case under Sec. 399 and 402 Penal Code is made out.