BHAGWAN SINGH AND GHANSHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal arises out of appellant's conviction under Section 399 IPC & sentence of; 3 year's R. I. with a fine of Rs. 1000/- (in default, 6 months further R. I.), imposed by the Addl. Sessions Judge, Bharatpur.

(2.) ON 20. 10. 1981 at 6 a. m. a report by the Circle Officer, Bayana (Teg Bahadur Singh) was lodged at police station Bayana stating therein that upon receiving a secret information in the intervening night of 19th & 20. 10. 1981 to the effect that the dacoits are hiding in the Bayana Fort with intention to commit dacoity in village Sikandra, a police party consisting of Station House Officer & other police personnel, proceeded to the scene of occurrence and reached the fort at about 6 a. m. where found five persons engaging themselves in discussion thereupon the police started firing from 'beri pistol' so as to flash light but the dacoits attempted to flee from the scene and three dacoits managed to escape and the two were arrested. From the arrested persons, one 12 bore Katta with 5 cartridges & another 12 bore Katta with 4 cartridges were recovered alleged from appellant, Bhagwan Singh & Ghanshyam respectively. The police registered a criminal case against the appellants for the offences punishable under Section 399, IPC & 3/25 of the Arms Act and after usual investigation, filed a challan. After committal proceedings, the Court of Sessions framed charges against the appellants for the aforesaid offences. After due trial, and hearing both the parties, the trial Court held the appellants guilty under Section 399 IPC, and acquitted them of the offence charged under Section 3/25 of the Arms Act, and sentenced them for the conviction u/s 399, IPC, as indicated above. Hence this appeal.

(3.) IN view of the foregoing, I am of the considered opinion that the prosecution has failed to establish on record by means of cogent ad reliable evidence that there were five persons who had assembled on the alleged date and place and they were making preparation for committing a dacoity. Only two appellants were arrested allegedly at the place of spot but surprisingly enough their arrest has not been proved by the prosecution beyond doubt inasmuch as the investigating officer has not been produced in the witness box to prove significant facts and circumstances of the case.