CHANDRIKA Vs. STATE

JUDGEMENT

(1.) THESE are three connected appeals by five persons, Chandrika, Kashi, Amrika, Fakirey and Mohammed Jamil against the order and judgment dated 11-8-1976 of the First Addl. Sessions Judge, Bahraich convicting them u/Section 399/401 IPC and sentencing each of them to five years RI. Fakirey. Jamil and Chandrika have been further convicted u/Section 25/27 Arms Act and have been sentenced to one year's RI each. All the sentences have been directed to run concurrently. Two other persons Kallu and Chhotey too were convicted u/Sections 399/402 IPC but they have not filed any appeal.

(2.) THE prosecution case is that on 24-8-74 at about 8.40 p. m. station officer Chandra Shekhar Singh PW 1 of police station Nanpara got information that a gang of dacoits would collect at the Khandhar of Suleman in village Lakhaiya to commit a dacoity at the house of Baburam Kurmi of that village. At that time on account of the panchayat elections in the village armed constabulary was also stationed at Nanpara. SO Chan- drashekher Singh took with him SI Ramdeo Singh and a police force and also took the Platoon Commander Sri Purshottam Singh and some constables of the PAC and started with the informer from police station Nanpara at 9.05 p. m. on the same night for arresting the gang of Faqirey. THE Station Officer had a revolver, SI Ramdeo Singh had a 12 bore DBBL gun. THE PAC Commander also had a revolver and some PAC constables had rifles. THEy also had torches. THEy reached near the Khandhar at about 10.30 p. m. and they had divided themselves into three parties. THEy concealed themselves in three directions of that Khandhar. One party headed by SO Chandrashekhar Singh took position at a distance of about 20-25 paces from the Khandhar. THE second party took position at a distance of about 40-45 paces from the Khandhar and the third party concealed itself at a distance of 60-65 paces from that Khandhar. SI Ramchandra Yadav PW 2 was incharge of the third party. Two public witnesses Suleman PW 3 and Atmaram PW 4 who had been taken by the police with them also concealed themselves. Suleman was in the second party while Atmaram was in the first party. Before proceeding there, the S O Chandrashekhar Singh had taken care to depute a constable at the house of Baburam Kurmi and had also given him information that a dacoity was to be committed at his house. It is surprising that Baburam Kurmi has not been examined in this case. THE station officer had also a VLP pistol with him. All these persons had taken their positions at about 11. 30 p. m. THE miscreants arrived there in groups at about 1 a. m. According to the FIR one of them had said "all the persons have arrived. Let us go and do the work." THE second dacoit then said, "Dat to Pakki hogi, ham logon ko dhoka to na hoga." THE third dacoit then said, "dat to Pakki hai." THE station officer was then satisfied that the miscreants had collected there with the object of committing dacoity. In the statements an improvement has been made by the witnesses that the dacoits had also said that all of them had collected and let them go to commit the dacoity. At that very time, a signal was given by the station officer who also fired with his VLP pistol which emanated light. THE dacoits tried to run away but they were surrounded and arrested. No fire was exchange ed. THE dacoits then gave out their names. One DBBL gun of 12 bore was recovered from the possession of Jamil, and a single barrel gun of 12 bore was recovered from the possession of Faqirey. In the judgment the gun recovered from the possession of Faqirey is described as the gun of Sri Virbhan Singh, Advocate of Bahraich and the gun recovered from the possession of Mohammed Jamil is described as the gun of Dularey Mian. THEy have also been ordered to be returned to these gentlemen. THE country-made pistol was recovered from the possession of Chandrika and some live cartridges were also recovered from the possession of these three persons. Axe, Lathis etc. were recovered from the possession of other persons. A joint recovery memo Ext. Ka-3 was prepared at the spot. All the recovered articles were sealed in separate bundles. THE arrested persons with the recovered articles were taken to the police station in the morning. THE articles were deposited and the arrested persons were put in the hawalat. SO Chandrashekhar Singh then lodged the FIR Ext. Ka-10 on 25-8 1974 at 11.15 a.m. On his report, investigation of the case was entrusted to SO M. P. Singh PW 5 of P. S. Rupaidia. He went to the site and prepared the site plan. He interrogated the witnesses. He then obtained sanction of the District Magistrate for prosecution u/Section 25/27 Arms Act. After completing the investigation he submitted the charge sheet against all the accused persons. THE accused persons denied the prosecution allegations and stated that they were falsely implicated in this case due to enmity of the police. THEy denied that any weapon was recovered from their possession. Faqirey stated that he was arrested at Nanpara bus stand at the instance of Yusuf Pradhan and his brother Suleman while Jamil stated that he was arrested from in front of the Bah- raich eye-hospital in the day time at 8 a. m. Chandrika, Kashi and Amrika stated that they were arrested from their houses. THE defence taken by Chhotey and Kallu is not material for the purpose of these appeals. Chandrika, Amrika and Kashi examined Jwala Prasad as DW 1 in support of their defence that they were arrested from their houses. THE accused persons also stated that they were kept at the police station for a couple of days and shown to the witnesses.

(3.) IN the result the appeal of Chan- drika, Kashi and Amrika is allowed. Their conviction and sentences are set aside. They are on bail. They need not surrender to their bail bonds which are hereby discharged. The appeals of Faqirey and Mohammed Jamil are partly allowed to this extent that their conviction and sentences u/Section 399/ 402 IPC are set aside. But their conviction and sentences u/Section 25/27 Arms Act are maintained. Their learned counsel informs that they have already served the entire sentence. IN case they haws served the sentence of one year's RI after taking into consideration the period during which they remained in prison as undertrials u/Sec. 428 CrPC, they shall not be taken into custody again and in that case their bail bonds shall stand automatically discharged. IN case they have not served out the entire period of one year's RI, they shall be taken into custody to serve out the remaining sentence. Appeal allowed.