STATE Vs. GHISSU KHAN

JUDGEMENT

(1.) Ghissu, Mohar Singh, Janak Singh, Ranicharan, Pemraj and Baburam were tried by the learned Additional Sessions Judge of Budaun under Section 399, I. P. C. In the alternative they all but Mohar Singh were further charged under Section 402, I. P. C. Baburam, Ghissu Khan and Janak were further charged under Section 19/20 (f), Arms Act and accused Mohar Singh was further charged under Section 19(f), Arms Act. The learned Additional Sessions Judge acquitted all the accused under Section 399 or 402, I. P. C. He, however, convicted Janak Singh, Ghissu Khan and Baburam under Section 19/20 (f) of the Arms Act and sentenced them to three years' R. I 2 1/2 years' R. I. and 2 years' R. I. respectively. The three accused who have been convicted under Section 19/20 (f), Arms Act have filed an appeal to this Court against their convictions which is numbered Criminal Appeal No. 754 of 1952. The State has filed an appeal against Ghissu Khan, Janak Singh, Ramcharan, Pemraj and Baburam against their acquittal.

(2.) The prosecution case is that on 16-10-1951, one Phullan Shah who is a prosecuting witness was going from his village Jagat to his father-in-law's place in village Chandernagar Kharer. In the way at about 11 a.m. he met the accused Baburam, Ghissu and Mohar Singh (who has been acquitted by the Sessions Judge and there is no appeal against him) in a grove in village Budhwai. Phullan Shah inquired from them as to where they were going. The accused Baburam thereupon told him that next day they were going to commit a dacoity at the house of one Piarelal in village Shanti Nagla close to railway station Kachla Ghat: Thereupon, Baburam asked the witness Phullan Shah if he would also accompany them. Phullan Shah then inquired from him about the time of their departure and was told that all would leave by 2-30 p.m. train from Budaun for Kachla Ghat. Phullan Shah then left them and promised that he would join them at Budaun railway station. Next day he returned from his father-in-law's place and informed the Circle Inspector, Mohammad Ismail Khan, at Budaun about the talk which he had with Baburam. The Circle Inspector produced Phullan Shah before Sri Singhal, the Deputy Superintendent of Police. They then came to Sher Ali Khan who was then in charge Superintendent of Police. Phullan Shah narrated the whole talk, which he had with Baburam, to the Superintendent of Police. He was then directed to proceed by train with the gang and was told that the police party would meet him at Kachla Ghat Railway Station. When the train would reach the station he would be waiving his hand from outside the window pointing out the compartment in which the dacoits would be travelling. Phullan Shah complied with the instructions and joined them at the appointed station as arranged before. The police party consisting of the in charge Superintendent of Police, the Deputy Superintendent of Police, the Circle Inspector and some ten or 15 constables left in a truck and a pick up. On reaching Kachla, the Circle Inspector called Raghunandan Prasad, Nawab Singh and Narottam Singh witnesses and then all proceeded to the railway station. The Station Master was informed and was asked to detain the train. When the train reached Kachla Ghat at 3-30 p.m., Phullan Shah, as arranged, waived his hand & the compartment was then surrounded by the police and, on being pointed out by Phullan Shah, all the five opposite parties in the Government Appeal were arrested. They were taken down to the platform & in the presence of Nawab Singh, Raghunandan Prasad, Narottam Singh, Station Master, the Deputy Superintendent of Police and in charge Superintendent of Police their persons were searched. Inside the folds of Janak Singh's dhoti a tamancha containing live cartridges was recovered. In the pocket of Baburam were found three live cartridges tied in a piece of cloth and in the folds of Ghissu Khan's dhoti was thrust and, concealed one spearhead. Nothing incriminating was found with the other two accused. The Circle Inspector left for the police station in the truck with the accused and recovered properties and the other police party went the other way in the pick up for sight seeing on the banks of the river Ganga. When the truck reached near the grove of Baghunandan Prasad at a distance of about one furlong from the railway station Kachla Ghat at 4-30 p.m. a person was noticed sitting there in suspicious circumstances. The truck was stopped and the man was challenged. He made an attempt to escape but was chased and arrested by the constables. This man was accused Mohar Singh. He had a jhola with him and inside that jhola were found an unlicensed tamancha, two live cartridges and one angochha. The Circle Inspector then arrived at the police station Ujhani with the arrested persons and the property in the evening of 17-10-1951 and wrote down the first information report. As there was no station officer the Circle Inspector himself started the investigation. He recorded the statements of Sher Ali Khan and Sri singhal on 17-10-1951. He then went to the railway station and prepared the site plan. On these facts the accused were prosecuted and tried by the Additional Sessions Judge.

(3.) All the accused denied the charges and pleaded not guilty. The four accused Ghissu, Janak Singh, Baburam and Pemraj admitted that they were arrested in the train at Kachla Ghat on the date and at the time alleged by the prosecution. They, however, denied any recovery of arms and ammunition from their person and maintained that they were in different bogies and were never pointed out by Phullan Shah. They have, in their defence, said that they were proceeding to different places. The Sessions Judge, however, came to the conclusion that the rest of the five accused got down from the compartment together and the recovery of the firearms and the spear has been amply proved by the testimony of the police witnesses. He has further held that the prosecution has only been able to establish that these five persons were arrested in a railway compartment together and two of them had in their possession firearms and one had a spear but the mere fact that the five persons were arrested together and three of them were armed with unlicensed weapons does not necessarily lead to the inference that they had collected their having made preparations to commit dacoity. Section 399, I. P. C. provides: