MOLHAR Vs. STATE OF U P

JUDGEMENT

(1.) M. C. Agarwal, J. This appeal by seven persons, namely, Molhar, Ram Dia, Inder Singh, Kurdi, Mir Hasan, Birbal and Bulli is directed against a judgment and order dated 23-8-1980 passed by the Addi tional District & Sessions Judge, Saharan-pur in Sessions Trial Nos. 353 of 1975, 353-B of 1975,354 of 1975 and 355 of 1975 all of which were consolidated and dis posed of by the judgment under appeal and by which Birbal appellant was convicted for an offence under Section 412, I. P. C. and sentenced to undergo rigorous imprison ment for a period of four years. The others have been convicted of an offence under Section 397, I. P. C. and sentenced to under go rigorous imprisonment for a period of seven years each.

(2.) DURING the pendency of this ap peal, appellant Inder Singh has died. The other accused also did not appear and their bail was cancelled. Accused Molhar, Ram Dia and Bulli alias Boolchand were ar rested and brought before this Court on 26-3-1998. Sri S. L. Kesharwani, Advocate appeared for Molhar and Birbal appellants. Ram Dia and Bulli appellants were unrepresented and expressed their in ability to engage a Counsel. Sri S. L. Kesharwani, Advocate was, therefore, ap pointed Amicus Curiae who assisted the Court on behalf of Ram Dia and Bulli accused. Sri G. S. Hajela, Advocate ap peared on behalf of Mir Hasan appellant and Kurdi accused remained unrepresented.

(3.) AT the trial, a large number of witnesses were examined. In addition, af fidavits of large number of formal wit nesses were filed Mehar Singh son of Fakira Singh P. W. 9, Balraj Singh P. W. 10, Rajpal Singh P. W. 11, Gyan Singh P. W. 12 and Saroj Bala P. W. 23, are the witnesses who were examined to establish the factum of the dacoity and the identity of the daeoits. Fakira Singh the first informant of this case was also examined as P. W. 6 but he died before ever his examination-in-chief was complete. As regards the recovery of the goods mentioned above, it was sought to be proved by producing Jhamman Singh, who at the relevant time was Sta tion Officer of Police Station Gangoh as P. W. 13 and Harish Chandra, Dhan Pal and Narain Singh as P. Ws. 14,15 and 16. It may be mentioned here that the public wit nesses, namely, Harish Chandra, Dhan Pal and Narain Singh did not support the prosecution case and stated that no recovery was made in their presence and that their signatures etc. were obtained at the police station. They were treated as hostile by the prosecution. Thus, as regards Birbal appellant who has been convicted for an offence under Section 412, I. P. C. , there remains the single tes timony of Jhamman Singh P. W. 13. He merely stated that he along with the other policemen and public witnesses reached the house of Sheo Singh where accused Birbal was available. He was questioned about the dacoity and taken into custody and them he i. e. Birbal took out the potli (bundle) containing the aforesaid orna ments etc. which had been concealed in a wall. Jhamman Singh does not state what was the statement made by Birbal that led to the recovery of the said articles. Thus, taking the statement of Jhamman Singh at its best what it could establish was merely that Birbal knew where the said articles were kept and the statement does not es tablish that Birbal was in possession of those articles or that he knew the same to be stolen property. Thus, even without going into the credibility of the evidence of Jhamman Singh the same did not estab lish the charge under Section 412, I. P. C. against Birbal accused.