KALESHWAR Vs. STATE OF U P

JUDGEMENT

(1.) MRS. Saroj Bala, J. This criminal appeal is directed against the judgment and order dated 8. 10. 1982 passed by the IV Additional Sessions Judge, Fatehpur in S. T. No. 740 of 1980 State v. Kaleshwar and an other whereby convicting the appellants for the offences punishable under sections 302/149, 307/149, 399 read with section 402 I. P. C. and sentencing each of them to rigorous imprisonment for life under sec tion 302/149 I. P. C. , two years rigorous im prisonment with fine with default clause under section 307/149 I. P. C. and five years rigorous imprisonment with fine with de fault clause for the offence under section 399/402 I. P. C. The appellant No. 1 Ka leshwar has also been convicted for the offence under section 25 of the Arms Act and sentenced to one year's rigorous im prisonment.

(2.) THE background facts leading to this appeal are: On receiving information, through po lice informer about the likely assemblage of dacoits at the tube- well to commit dacoity in the house of Bhagwant Singh (P. W. 3) in village Pariharan Dera. S. H. O. P. S. Kalyan-pur Jai Karan Singh (P. W. 4) along with po lice force, arms and ammunition proceeded to village Pariharan Dera at about 8. 15 P. M. on 21. 6. 1977 and reached at the tube-well of Shambhu Nath Bajpayee. Constables Mannan Singh and Ram Gopal Singh reached there along with public witnesses Surya Bhan Singh (P. W. 1), Ram Swaroop (P. W. 2), Bharat Singh (P. W. 5) and others and joined the police party. THE Station Officer (P. W. 4) divided the force and pub lic witnesses in two parties. THE first party took position towards the southern, west ern side of tube-well whereas the second party stood in wait for the arrival of mis creants on the eastern side. THE culprits came one by one after about 15-20 minutes and assembled in the thatched room of the tube-well. On hearing their conversation S. H. O. Jai Karan Singh and members of both the parties were satisfied that it was a gang of dacoits. S. H. O (P. W. 4) challenged the dacoits to surrender and fired a V. L. P. shot. THE miscreants ran away towards the northern side of tubewell opening fire at the police personnel and public witnesses. Bharat Singh (P. W. 5) and one Ram Adhar sustained firearm injuries. THE appellants were captured at a distance of about one furlong from the tube-well. On their per sonal search the recovery of lathi was made from the appellant No. 2 Jawahar and of Pharsi from appellant No. 1 Kaleshwar. THE injured and captured appellants were given in the custody of A. S. I Laxmi Narayan. THE other members of the police party continued their chase after the fleeing dacoits. On the way Bachoo Kachi (deceased) resident of village Govindpur and Devi Dayal Pradhan and others joined the police and public in chasing the fleeing dacoits. Bachoo Kachi sustained injuries with the shot fired by the dacoits and later on succumbed to the injuries. Two dacoits were killed with the shots fired by the po lice personnel and public witnesses. THE killed dacoits were identified by the appel lants. THE recovery of arms was made from the possession of killed dacoits. THE recov ery memo (Ext. kal) was prepared by the S. H. O. Jai Karan Singh Chauhan (P. W. 4) at the spot. On the basis of recovery memo chick F. I. R. (Ext Ka-2) was prepared by Constable Moharir Jagdev Prasad (P. W. 7) and crime was registered at serial No. 2 of the G. D. at 12. 10 A. M. on 22. 6. 1977. THE G. D. entry is (Ext. ka-7 ).

(3.) THE committal proceedings were conducted by the Chief Judicial Magistrate. THE appellants were committed to the Court of sessions by the order dated 8. 12. 1980 for standing trial under sections 399/402, 302, 307 I. P. C. and section 25 of the Arms Act. Co-accused Fuddi and Chhatrapal died before the committal of the case to the Court of sessions. Both the appellants were charged for the offences under sections 399, 402, 307/149 and 302/149 I. P. C. THE appellant Kaleshwar was separately charged under section 25 of the Arms Act. THEy pleaded not guilty and claimed to be tried. THE prosecution, in support of the charges examined Surya Bhan Singh (P. W. 1), Ram Swaroop (P. W. 2), S. H. O. Jai Karan Singh Chauhan (P. W. 4), injured Bharat Singh (P. W. 5) as witnesses of fact. Dr. B. R. Bajpayee (P. W. 6) was examined to prove the injury reports. Constable Mo-harrir Jagdeo Prasad (P. W. 7) proved the entries made in the G. D. S. H. O. Dev Nath Pandey (P. W. 8) was the investigation offi cer. Bhagwant Singh (P. W. 3) was the per son in whose house dacoity was to be committed. THE accused -appellants in their state ments under section 313 Cr. P. C. stated that they had been taken away by the police from their residence and were falsely im plicated due to enmity with the people of Thakur community of village Pariharan Dera.