BAKSHI Vs. THE STATE

JUDGEMENT

(1.) Both these appeals are directed against the judgment passed by the learned Addl. Sessions Judge, Gangapur City, dated 30-11-1985 in Sessions Case No. 53/1984 by which both the accused appellants were convicted. Appellant Ramprakash, was convicted and sentenced under Sec. 399 Penal Code to 5 years rigorous imprisonment and fine of Rs 200.00. In default of payment of fine to further rigorous imprisonment for two months. For the offence under Sec. 402 Penal Code he was also sentenced to R.I. for 5 years and fine of Rs. 200.00. In default of payment of fine to further undergo one months rigorous imprisonment. For the offence under S. 3/25 of the Arms Act, the appellant was convicted and sentenced to one year rigorous imprisonment. All these sentences were ordered to run concurrently. Appellant Bakshi. was convicted for the offence under Sec. 399 Penal Code to 3 years rigorous imprisonment and fine of Rs. 100.00, in default of payment of fine to further undergo one months rigorous imprisonment. For the offence under Sec. 402 Penal Code he was sentenced to 3 years rigorous imprisonment and fine of Rs. 100.00 and in default of payment of fine to further undergo one months rigorous imprisonment. For the offence under S. 3/25 of the Arms Act, he was sentenced to one year rigorous imprisonment. All these sentences were ordered to be run concurrently. Both the accused appellants being dis-satisfied with the aforesaid conviction and sentence awarded to them by the learned trial court, have filed these appeals against the same judgment. Since both the appeals arise out of the same judgment therefore, they are disposed of by one common order.

(2.) Briefly, stated the facts of the case are that on 31st March 1984, at about 10.30 p.m. motbir informed the S.H.O. Dharampal Singh, that 6.7 bad character persons were sitting near wall of Bandh of Gangapurcity and Udai-kala, who were armed with guns and lathis and from their talks in hushed voice he felt that they were preparing to commit dacoity in the house of Radhey Lal Meena. There-upon Dharam Pal Singh, alongwith the other police constables went in jeep which was stopped at a short distance from the college They went on foot and reached the spot at about 11.30 p m. where they found some people sitting in darkness. When they reached near them they found that they were 6 persons who had guns and were talking. On seeing the police they started running and the police party was successful in catching two persons namely Ramprakash and Bakshi. Accused Ramprakash (Ex P. 5) was having single barrel gun of 315 bore and 22 live cartridges of the same bore were also found in the pocket of his paint. Apart from this, he was also having a torch Accused appellant Bakshi (Ex. P. 4) was also found in possession of one single barrel gun of 12 live cartridges of the same bore were also found in the pocket of his kurta. Apart from this the 4 persons who were successfully in running away left following arms on the spot which were also recovered as Ex. P 6. One country made (Local) single barrel, 12 bore gun, one cloth bag which contains 17 live cartridges, one axe made of iron and one lathi. Both these accused appellants were not having any licence for the local made gun found in their possession. Therefore, they were charge-sheeted under Ss. 309, 402 Penal Code and also for the offence under S. 3/25 of the Arms Act. The learned trial court after recording the evidence and the statements of the accused appellants under Sec. 313 Crimial P.C. and hearing the arguments of both the parties found then guilty and convicted and sentenced them as indicated above.

(3.) Learned Amicus Curise, Shri Saini, appearing on behalf of accused appellant Ram Prakash, has contended that all the witnesses in this case are police employees and no independent witnesses have been produced. He therefore, urged that no reliance can be placed on the witnesses who are police employees. He has pointed out that only eye witnesses are police employees. He has further pointed out that (Ex. P. 12) is an application dated 23-3-1984, which was filed in another case namely State Vs. Ramprakash , in which it is mentioned that appellant Ramprakash is not in position to attend the court of learned A C J.M. Gangapur City, in connection with the same quarrel took place in previous night. Therefore, it was prayed that his personal attendance may be exempted. It has therefore, been contended that the appellant Ram prakash, was already in police custody from 23rd March, 1984 therefore, he could not have been arrested on 31-3-84 as alleged by the prosecution. He has also pointed out Ex. DI, is the certified copy of the judgment dated 10.4.1985 given by the learned Addl. C. J M. Gangapurcity, in the case of State Vs. Ramprakash (Case No. 162/1984) which shows that he was acquitted for the offence under S. 3/25 of the Arms Act. He has also pointed out that (Ex. D-3) is also an application dated 6.4.1984 filed in the court of learned Addl. CJ.M. Gangapurcity. It was also mentioned in it that since the accused appellant was in police custody therefore, he was not position to be present in the court on that day i.e. 6.4.1984. He therefore, contends that this clearly proves that a false case has been made out by the prosecution against the accused appellant who was already in police custody on 31.3.1984 and he could not have been arrested on this date as alleged by the prosecution.