DURJAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) - Mr. Sree Pal and then VII Additional Sessions Judge of Aligarh, vide, his order dated 15.5.1985 found Durjan guilty and sentenced him under section 397, I.P.C. to seven years rigorous imprisonment; and under section 25 of the Arms Act to one years rigorous imprisonment making the two sentences concurrent.

(2.) At the very out-set I may point out that the learned Sessions Judge was wrong in directing the conviction under section 397, I.P.C Section 397, I.P.C. only provides for an enhancement of the term of the imprisonment in certain cases in which the offender uses a deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person, and lays down that under such circumstances the imprisonment shall be the minimum of seven years. So actually it should be taken to be the conviction under sections 395/397, I.P.C.

(3.) It is a case of occurrence of dacoity, which took place in the evening of 1 2.4.1981 in village Baai Khurd which lies within the area of Police Station, Barla, District Aligarh. The First Information Report was lodged without much delay at a distance of four miles in the early morning hours on 13.4.1981 at 1.25 a.m. by Sukhram who is the victim of this dacoity. It is contended that at about six in the evening, about 10-12 armed dacoits raided the house of Sukhram. Sukhram rushed lip and went to the roof of Baniram and started crying. His crying attracted at the scene of occurrence Ram Das (P.W. 2), Udai Ram (P.W. 3) and Siyaram (P.W. 4) and a large number of other villagers including the license-holders. The dacoits busied themselves in looting the goods and articles from the home of Sukhram. It so happened that a police party had just left the village and when a noise was created by the villagers, these policemen who had not gone very far away, returned to the scene of occurrence. One man was also sent to call them. One Assistant Sub-Inspector and two constables including the injured Om Gautam (P.W. 6) came on the spot. They started firing. The dacoits after committing the loot, emerged out and tried to run away, but, because the policemen and the villagers and license- holders were pressing them, they entered into a Kotha inside the Gher of the first-informant Sukhram (P.W. 1) and chained it from inside. They were challenged and directed to come out. But they paid little heed to what the police said and continued to rain bullets from inside. Then somebody out of the villagers removed a part of the roof of the Kotha and threw some burning substance inside. The heap of straw and wood that was there inside the Kotha, caught fire and there was a lot of smoke which forced the dacoits to come out. It is contended that one of the dacoits died as a result of burning and some others who came out were killed on the spot by the firing made by Police and the villagers. Ten such dead bodies were recovered from the spot. Two dacoits were arrested on the spot namely Babu and Durjan; and from the possession of Babn, some stolen articles were also recovered. Durjan who is the present appellant was found possessed of a country-made pistol, two live cartridges and one spent cartridge inside the barrel of the pistol.