PUNNI AND ORS. Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 29-11-1980 passed by Sri Sanwal Singh, the then Vlth Additional Sessions Judge, Etawah in S.T. No. 406 of 1978 State v. Punni and 5 others, whereby he convicted the accused-appellants Punni, Munshi, Saligram, Sultan, Ram Murti and Ram Bharose of the offence under Section 399, I.P.C. and sentenced each one of them to undergo R.I. for a period of 4 years, con­victed each one of them of the offence under Section 402, I.P.C. and sentenced them to undergo R. I. for a period of 2 years and further convicted each one of them of the offence under Section 27 of the Arms Act and sentenced them to undergo R.I. for a period of 6 months and the sentences were ordered to run concurrently.

(2.) HEARD counsel for the parties. The prosecution story, briefly stated, was that on 15-10-1977, when Ram Charan Singh S.O. and Gaya Prasad, A.S.I. posted at police station Sikanderpur Vesh, District Etah were together in the circle, the S.O. received information from a reliable in­former that the gang of Punni Habda would assemble in the grove of Pandit Lakhan Singh of Rani Damar at about 1.00 a.m. in the night for committing dacoity and would loot Nagla Karan, that there­upon the S.O. and A.S.I. called for Neksey and Sri Pal witnesses from Nagla Abdal alongwith their licenced fire-arms through constable Bhanwar Singh and taking them went towards Rani Damar and after reach­ing near Rani Damar, called Ram Prakash P.W. 2, Ranvir Dev Singh and Soran Singh witnesses from that place that, out of them Ram Prakash P.W. 2 was a licence holder, that after it they reached near the Kotha of Pradhan and told the witnesses about the purpose of calling them and mutual search was also taken to ensure that no one has any illicit weapon with him, that then two parties were formed by the S.O., party No. 1 in his leadership of which also included Ram Prakash PW 2 and party No. 2 in the leadership of Gaya Prasad A.S.I., P.W. 1 in which there were some members of the police force and some public witnesses, that after necessary instructions were given by the S.O. the two parties reached near the grove of Lakhan at 11.00 p.m. and there party No. 1 took position towards East of the grove in the Aar of Mend and party No. 2 took position towards the North of the grve in the Aar ofKhanyee and they started waiting for the arrival of the dacoits, that after some time some dacoits entered in the grove and sitting in it started smoking Biri and Cigaretteand conversing with each other, that one of the dacoits was over heard saying "Nagla Chhota Hi Hai. Ustad Nahin Aaye Hain. Darney Ki Koyee Bat Nahin Hai. Chalo Chalker Loot Legeny, " tha t from it the two police officers got satisfied that it is a gang of dacoits assembled for the purpose of committing dacoity and preparing to commit dacoity that the S.O. challenged the dacoits that they were under sieze and commanded them to surrender their weapons and themselves telling them that in case they tried to run or did not surrender their weapons, they would be done to death, that at that time Hajari Singh, head constable fired a VL.P shot which created a flood of light due to which the dacoits started run­ning helter and skelter and both the police parties raided them and arrested all the 6 accused-appellants at the spot while three of their companions managed to escape, that they disclosed their names to the police and on search being taken, one gun and 8 live cartridges were recovered from Punni accused appellant, one Tamancha and 4 live cartridges were recovered from Munshi accused-appellant, one Tamancha and 5 live cartridges and one torch were recovered from Saligram accused-appel­lant, one Tamancha and 3 live cartridges were recovered from Sultan accused-ap­pellant, one Bhala and a torch were recovered from Ram Murti accused-ap­pellant, for which they had no licence and a Lathi of Bamboo was recovered from the possession of Ram Bharose accused-ap­pellant, that the recovered articles were sealed in separated bundles and the recovery memo was prepared at the spot, that besides this, half burnt pieces of Biries and match sticks were collected from the spot and sealed in a separate bundle, that the empty cartridge of the V.L.P. was also recovered from the spot, that thereafter the police party returned to the police station and chick report was prepared on 16-10-1977 at 10.00 a.m. on the dictation of Ram Charan Singh S.O. and on the basis of the same a case was registered under Sections 399/402, I.P.C. and separate case were registered under Section 25 of the Arms Act and Section 4/25 of the Arms Act. The accused persons were committed to the Court of Sessions after the filing of the charge-sheets and then they were con­victed and sentenced at the trial as aforesaid.

(3.) NOW there are some very important features worth notice in the present case. The S.O. Ram Chandra Singh who was the architect of this raid and recovery has not entered the witness box. The prosecution also did not examine the investigating of­ficer of this case at the trial further though as per the prosecution story, the dacoits were 9 in numbers and 4 of them were armed with fire-arm and cartridges and one of them was armed with Bhala and another with a Lathi (leaving out whatever weapons the three of their companions might be having), none of the dacoits is said to have fired a single shot in the trans­action nor is there any allegation of the infliction of a single injury on the body of any of the members of the police force or the public witnesses in the transaction. The dacoits arc said to have been caught at the spot without any resistance or struggle on their part. This Court feels hand­icapped due to the absence of the inves­tigating officer from the witness box. The site plan prepared by the I.O. has been proved by Gaya Prasad, A.S.I. P.W. 1. Un­less all the witnesses in the trial are hostile, it is the bounden duty of the prosecution to produce the investigating officer at the trial. Anyhow, the site plan prepared by the investigating officer shows that the grove of Lakhan Singh where dacoits are said to have assembled and prepared to commit dacoity and were arrested along with their weapons etc. was surrounded on three sides by groves. In the North, there was a grove of Ram Dayal and Mauji Ram and in the West, there was another grove of Lakhan Singh and grove of Rasid and in the South, there were groves of Sone Lal and Uamashanker and besides there were fields of Sone Lal, Ram Dayal, Har Dayal and Jiwa in the Eastern side. None of these grove holders or land holders are said to have been present in the grove at the time ofoccurrence.