NAUSHERA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is an appeal by six persons against their conviction Under Section 402, Indian Penal Code, recorded by the Sessions Judge, Bhiwani who awarded sentence of two years rigorous imprisonment to each of them. Out of them, two namely, Nanak and Naushehra belong to district Bhiwani whereas the remaining four are from the ad. joining State of Ra. iasthan.

(2.) BROADLY stated, the case of the prosecution was that on March 21, 1978, the Station House Officer, Police Station City Bhiwani, Sub-Inpector Rajbir Singh (P. W. 9), received secret information that five or six dacoits of the Nanak Gang headed by Nanak were with firearms et cetera sitting in a deserted brick-kiln near Dharamshala Harnam Dass in the area of village Naurangabad, near the Bhiwani-Rohtak Road. The secret information further disclosed that those dacoits had a mind to commit dacoity in the house of Chaturbhuj Brahman of village Rewari Khera, Sub-Inspector Rajbir Singh (P. W. 9) taking with him adequate police force proceeded towards the direction indicated at about 9-15/9,30 P, M. Near the outskirts of the town Bhiwani. he saw Sohan Singh (P. W. 2), Sukhpal Singh (P. W. 3) and one Dalip Singh. Taking them along he went to the place indicated in the area of village Naurangabad. The party split into three groups in order to attack the hideout of the culprits. Having made a cordon, the Sub-Inspector addressed the dacoits in loud voice that they were in police cordon and they should drop their arms on the ground and surrender themselves to the police with their hands up. He had to repeat his direction a couple of times when one of the dacoits replied that the direction had been complied with. The cordon was narrowed and getting near the culprits who were visible in the moon-light, the six appellants were found with their hands up and their weapons lying on the ground. One by one each appellant picked up his weapon at the askance of the Inspector and formally handed the same over to him. It is unnecessary to give out the details of the weapons except to mention that they were of illicit origin. The appellants were arrested, the investigation was completed, the case was sent up for trial and ultimately the appellants were convicted and sentenced as aforesaid.

(3.) ON appeal, the learned Counsel for the appellants, has raised before me three contentions (i) that the acquittal of the appellants of the charge Under Section 399 of the Indian penal Code should be taken to be fatal to the charge Under Section 402 of the Indian Penal Code. To this argument aid was also sought from the fact that the appellants stood acquitted for charges Under Section 25 of the Arms Act also; (ii) that even if the facts alleged by the prosecution were treated to be correct, those facts were parallel to a decision rendered by their Lordships of the Supreme Court in Chaturi Yadav v. State of Bihar 1980 Cri App R (SC) 237 : 1979 Cri LJ 1090 and (iii) that the evidence of the prosecution was discrepant on material particulars and not worthy of reliance.