TIRKHA AND OTHERS Vs. STATE

JUDGEMENT

(1.) Eight persons, including the six applicants, were tried in the court of the II Assistant Sessions Judge, Aligarh, of offences punishable under Sctions 399 and 40i IPG, there being a further charge under Section 19(f) of the Arms Act a (gainst three of them. The trial judge came to the conclusion that all the eight accused persons were guilty of the offences with which they had been charged. They were accordingly convicted. In respect of the offences under Sections 309 and 402 IPC, a composite sentence of four years' rigorous imprisonment each was inflicted upon them. Tirka and Raghubir applicants as well as one Dharma alias Dharam Singh, who has not come up in revision, were further sentenced to undergo one year's rigorous imprisonment each under Section 19 (f) of the Arms Act, the two sentences in their case running concurrently. An appeal was taken by the eight convicted persons,, which, however w"s dismissed by the Additional Sessions Judge, Aligarh. Hence this revision, which has been filed by Tirkha, Ramji, Durjan, Budha, Raghubir and Keerat Dharam alias Dharam Singh and Jagdish alias Jaggi have not come up in revision.

(2.) The prosecution case was that on 12.8.1962 at about 7.55 P.M., R.D. Tewari Station Officer, Kotwali, Aligarh, received information that an armed gang of dacoits would assemble in front of the III' class waiting room at Aligarh Railway Junction Station with a view to commit decoity at the house of one Udai Ram Bohra in village Kuarsi, P.S. Civil Lines. A raiding party was accordingly organised, consisting of police officers and some non official witnesses. The raiding party surrounded the gang and managed to arrest eight of them, namely, Tirkha, Ramji Lal, Durjan, Budha, Dharma alias Dharam Singh, Raghubir, Keerat and Jagdish alias Jaggi i.e. the eight accused while the nineth man managed to effect his escape. On being searched, fire arms were recovered from the possession of Tirkha and Raghubir applicants as well as Dharma alias Dharam Singh, who has not come up in revision. The other accused persons were found in possession of lathis, torches, razor blades etc. The arrested persons were escorted to the Kotwali, along with the recovered articles, where a First Information Report was lodged. Another man, was arrested on the route to village Kuarsi where the police party subsequently proceeded. Police investigation followed. The eight accused persons were in due course committed to the court of sessions charged with offences punishable under Sections 399 and 402 IPC, with a further charge under Section 19(f) of the Arms Act against three of them. At the trial, the accused denied the prosecution case in toto, i.e. both their arrest from the neighbourhood of the III class waiting room of the Aligarh Railway Station as well as the alleged recoveries. The trial Judge, however, came to the conclusion that the prosecution had succeeded in establishing its case and accordingly convicted and sentenced them as stated earlier. The appeal to the court of sessions, as already indicated, was successful.

(3.) The learned Counsel for the applicants urged vehemently before me that the courts below have erred in finding the accused guilty of offences under Sections 399 and 402 IPC. This contention was that merely because eight persons were found together near the III class waiting room and fire arms were re covered from three of them (assuming the prosecution case in this regard to be true,, it did not necessarily follow that those persons had assembled there for the purpose of committing dacoity. Mr. Sharafat Afi, learned Counsel for the applicants further pointed out that village Kuarsi where, according to the prosecution, dacoity was to be committed at the house of one Udai Ram, was far off from the railway station. The survey map of Aligarh district shows that the intervening distance is about three miles. In case these eight persons intended to commit dacoity at Kuarsi, as alleged by the prosecution, then it was argued in the ordinary course, they would, have assembled not in a frequented place, like the railway station but in some secluded grove or other lonely place near Kuarsi. The applicants are residents of Bhakrol, within the jurisdiction of P.S. Kotwali, Aligarh. Why should these persons rim the risk of being seen or arrested, by assembling in a frequented place, like the railway station, when they could have easily assembled at some secluded spot near the village where the chances of their being observed, were limited. In coming to the conclusion that the accused had assembled near the III class, waiting room for the purpose of committing dacoity after having made preparations therefor, the courts below appear to have gone by the testimony of S.I.. Mahtab Singh (PW 1 and Ram Charan (PW 2). According to the former he had over heard the accused whispering to each other, that they were going to commit dacoity at Kuarsi in the house of Udai Ram and were waiting for one Chunni. According to the latter, they were giving out that it was getting late, they should go to Kuarsi and return and their associate would meet them at the spot. Apart from the above allegations there is no evidence on the record to show that the object of the accused persons in collecting near the III class waiting room was to commit dacoity at Kuarsi. I find force accordingly in the contention of the learned Counsel for the applicants that in case their object was really to commit dacoity at Kuarsi, then it was hardly likely that instead of assembling at some secluded place near Kuarsi they would have taken it into their heads to assemble at a frequented place like the III class waiting Eoom at the Aligarh railway station, with firearms and other incriminating articles in their possession and hereby run the risk of being observed and arrested.