KEDARI & OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment and order dated 26.7.1982 passed by IIIrd Addl. Sessions Judge Moradabad in ST No.183 of 1979 State vs. Kedari and others, under Section 399, 402 IPC and 27 Arms Act whereby the trial court has convicted the appellants Kedari, Shiama alias Shiam Lal, Anandi and Murari and sentenced them to undergo 3-1/2 years R.I. under Section 399/402 IPC and one year R.I. Under Section 27 Arms Act.

(2.) Shorn of unnecessary details the prosecution version, in brief, is that on 9.6.1978 the Station Officer Dharam Vir Singh of P.S. Bahjoi received a confidential information from some informer that an armed gang of Kedari would assemble on the Bahjoi-Islam Nagar road between the villages Bahpur Patti and Mau Ka Ther for looting a businessman of Rab who is coming by some truck. After making an entry in the General Diary to this effect the Station Officer along with S.I. Iqbal Uz Zaman (PW-1), Chhajju Singh (PW-2) and other police personnel proceeded to the spot with necessary arms and ammunitions. He collected two public witnesses Najmul Khan and Kalloo Singh from village Bahpur and reached the culvert of the Government tube well on the Bahjoi-Islam Nagar road over which the miscreants had to assemble. Two public witnesses namely Virender Pal Singh (PW-3) and Bharosey were called for on the spot. The Station Officer thereafter explained the purpose of assembling there to all the members of police force and public witnesses and gave necessary instructions. He divided them into three parties. One party was kept by him under his charge and another one party was given in the charge of S.I. Iqbal Uz Zaman (PW-1) and the third party was given in the charge of S.I. Chhajju Singh (PW-2) at about 10 p.m. The party no. 1 took its position in ambush towards north of the road in the bushes. The party no.2 also took its position towards north of the road to the east of the drain by the side of the bushes and the third party took its position towards south of the road by the side of the bushes. At about 10.30 p.m. six miscreants arrived there and sat down on the culvert and began to talk. They were saying that Kedari had not come so far. After about ten minutes two more persons arrived from the western side and joined them after salutation and one of them said that there was no bricks or stones to block the road, then one another miscreant advised to cut down a Babool tree and place the same over the road to stop the truck and also to make a fire on the tyre of the truck if necessary. The accused persons then began to load their weapons and one of them began to cut the Babool tree. Thereafter the Station Officer on his satisfaction that the persons assembled there were the dacoits about whom the confidential information was received by him and under his instructions a V.L.P. Fire was made which produced sufficient light and on the challenge given by the Station Officer the members of all the three police parties surrounded the miscreants and arrested four of them namely accused Kedari, Shyama, Anandi and Murari on the spot and remaining four miscreants managed to escape from the spot. The search of the arrested persons was taken. From the possession of Kedari one SBBL gun with one cartridge in its barrel and five cartridges in a bandolier were recovered and from the possession of accused Anandi a country made pistol and three live cartridges and currency notes of Rs.7/- were recovered. From the possession of accused Murari one pistol and four live cartridges, five biri bundles, three match boxes and currency notes of Rs.8/- were recovered. From the possession of accused Shyama one country made pistol, four live cartridges, a towel and a torch were recovered. All the articles recovered from the possession of the accused persons were sealed and separate recovery memos (Ext.Ka.3 to Ka.6) were prepared in respect thereof. One empty cartridge of V.L.P. was also sealed by the Station Officer and a separate memo (Ext.Ka.7) was prepared in respect thereof. From the spot a rope from the Babool tree was also taken into possession and in that regard also a recovery memo was prepared. The arrested accused and the sealed bundles were taken to P.S. Bahjoi at 2.45 p.m. on 10.6.1978 and in this connection the Station Officer lodged oral first information report.

(3.) Constable Chhajju Singh (PW-2) prepared a chick report (Ext.Ka.9) on the basis of the above FIR and entered the gist thereof in the general diary, the extract of which is Ext.Ka.10 and registered the case against the accused persons. The investigation of this case was entrusted to S.I. Narrender Singh (PW-5) who after making inspection of the spot prepared site plan (Ext.Ka.11) and after completing the investigation filed charge sheet (Ext.Ka.12) against all the accused persons under Section 399, 402 IPC. He also submitted charge sheets (Ext.Ka.13 to Ka.16) against these accused for their prosecution under Section 25 Arms Act after obtaining necessary sanction from the District Magistrate concerned. Thereafter this case was committed to the court of Sessions by the Munsif Magistrate Moradabad where the same was registered as ST No.183 of 1979 and thereafter the same came before the court of IIIrd Additional Sessions Judge for disposal.