MOHD HUSSAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals have been heard together and are being disposed of by a common judgment as they are directed against the same judgment.

(2.) Mohammad Hussain is the sole appellant in Criminal Appeal No. 192 of 1982, whereas there are two appellants in Criminal Appeal No. 319 of 1982, namely, Sadique Mian and Jamadar Hajra. Out of these two appellants, Sadique Mian died during the pendency of this appeal and as such the appeal abates so far as he is concerned. Now Criminal Appeal No. 319 of 1982 is confined to only one appellant, namely, Jamadar Hajra. Both the appellants, namely, Mohammed Hussain and Jamadar Hajra have been convicted under Ss.399 and 402 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years each on both the counts. Their sentences have, however, beep made to run concurrently.

(3.) The prosecution case is that in the evening of 7-2-1975 informant Bachha Singh, Officer-in-charge of Raxaul police station, received a confidential information that some dacoits were to assemble in an orchard of village Bharath mahi tola Baluaha with a view to commit dacoity in that village. On receipt of this information, he organised a raiding party and proceeded towards the said place. When he reached near the said orchard, he divided his raiding party into two groups - one of which was led by him and the other by Sub-Inspector Mehdi Abbas. The party led by the informant comprised of 5 persons and the party led by Mehdi Abbas comprised of 8 persons in all. These two groups proceeded towards the orchard from two directions - one from southern direction and the other from south-eastern direction. When they were about 50 yards from the orchard, some members of the raiding party flashed torch in the light of which they found about 20 persons sitting in the orchard in suspicious circumstances. On seeing the flash of torch, those persons started running but they were chased and, ultimately, the raiding party succeeded in apprehending five dacoits and the others managed to flee away. On hearing alarm raised by the raiding party, 7 persons of the locality in the custody of the police party. These apprehended persons disclosed their names and addresses etc. They also disclosed the names of the persons who had managed to flee away. Thereafter a search was made and a country made gun was recovered from the hand of Mangal Kurmi and two live cartridges were recovered from the shirt of Jamil Mian who were amongst those 5 apprehended persons. These two persons, however, died during the pendency of the commitment proceeding and consequently only three appellants were put on trial, out of whom, as stated above, one namely, Sadique Mian died during the pendency of the appeal. It is said that one Farsa, one Tangi, three green bamboo lathis, five phattas and some unburnt ends of Bidis and match sticks were also found at the place of the assemblage of the apprehended persons. The informant seized all these articles and drew up his own Fardbeyan at about 1 a.m. on 8-2-1975 in the orchard itself and took up investigation. Eventually a case was registered on the basis of that Fard-beyan. In due course, charge-sheet was submitted and the three appellants were put on trial with the result as stated above.