(1.) By the Single judgment, two criminal appeals, i.e. Criminal Appeal No.278/2009 and Criminal Appeal No. 254/2009 are being decided.
(2.) These criminal appeals have been filed against the judgment dated 4.2009 passed by Special Judge, MPDVPK Act, Gwalior in Special Sessions Trial No.62/2005 whereby the appellants have been convicted under Sections 399, 402 of Penal Code read with Sec. 13 of MPDVPK Act and under Sec. 25 (1B) (b) of Arms Act and the appellants have been acquitted of the charge punishable under Sec. 400 of Penal Code read with Sec. 13 of MPDVPK Act.
(3.) The prosecution story in short is that on 31.5.2005 Atmaram Sharma Incharge Inspector of Police Station Padav, District Gwalior received an information from an informer that five accused persons have gathered in the graveyard situated in front of Khwaja Kanoon with an intention to commit dacoity in the house of Subhash. The said information was entered in Rojnamchasanha and the entire staff of the police was called. They were informed about the information and the rifle and ammunitions were given to them. The entire police force was divided into two parts. Party No.1 was being led by Atmaram Sharma Incharge Inspector in which the ASI Devendra Singh, Head Constable Shivraj Singh, Gambhir Singh, Constable Suresh, Kamlesh, Prakash Chandra and Kishore were included whereas the second party was being led by Incharge Sub Inspector Gurbachan Singh in which ASI S.R. Barua and R.S. Chaudhary, Head Constable Ram Bahadur, Ram Prakash, Constable Vijay Pratap Singh, Rajesh Chaturvedi, Arun Mishra and Yashpal Singh were included. Two witnesses Sanjay Bhadoriya and Chhuttan Khan were also taken by the police parties along with them and both the parties were given two torches. The force went towards the spot on government vehicle and after reaching near Sai Baba Temple the force left the government vehicle and the party No.2 was directed to go to the graveyard from the side of Ravi Nagar and whereas the party No.1 went towards the graveyard from Phoolbagh Road. The party No.2 was directed that after reaching on the spot they should give an indication by showing the light of the torch. The entire police force and the witnesses took their position by the side of the wall and at that time they heard the conversation between the accused persons. One person was saying that Amrit Bhaiya you are the leader of our gang and we have to commit dacoity in the house of Subhash which is rich party and in case if they succeed then they would get lot of material. That person also said that Chandra Shekhar, Surendra and Harishchandra would enter in the house of Subhash whereas the said person and Shekhar would remain outside. Thus, after hearing the conversation of the dacoits/accused and when it was found that the information which was received is true, the party No.2 gave an indication by the light of the torch. Atmaram Sharma challenged the accused persons to surrender themselves as they have been surrounded by the police party. They were also warned that in case any activity is done by them, then they will be killed. The accused persons after noticing the police tried to run away from the spot. Both the parties by surrounding the accused persons, caught hold of them. One person disclosed his name as Amrit Singh from whose possession one 12 bore loaded country made pistol and one cartridge was found, another disclosed his name as Harishchandra and from his possession, 12 bore country made pistol with two live cartridges were found, third disclosed his name as Chandra Shekhar from whom one knife was found, fourth disclosed his name as Surendra Singh from whom one knife was found and the 5th person disclosed his name as Shekhar Kumar from whom one lathi was found. When the accused persons could not produce any license for keeping the country made pistol and the knife, the said weapons were seized on the spot in the light of the torch. Thereafter the accused persons were arrested and they were brought to the police station along with the seized weapons. FIR was recorded and the offences under Sections 399, 402 of Penal Code under Sec. 11/13 of MPDVPK Act, 1981 and under Sec. 25/27 of Arms Act was registered. After completing the investigation the police filed the charge sheet.