ORDER B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 24-11-1979 passed by Sri D.S. Ram, the then II Additional Sessions Judge, Etawah in Sessions Trial No. 61 of 1978 whereby he convicted the accused-appellants Shiv Ram Singh and Sugriv Singh of the offences under Sections 399/402, I.P.C. and sentenced each one of them to undergo rigorous imprisonment for a period of two years and further convicted Shiv Ram Singh accused-appellant of the offence under Section 25 of the Arms Act also and sentenced him to suffer three months rigorous imprisonment for this offence and directed that in the case of each accused both all the sentences shall run concurrently.
2. Out of the accused-appellants, Shiv Ram Singh accused-appellant has died during the pendency of the appeal and so to his extent this appeal is to abate. So now we have to dispose of this appeal to the extent of Sugriv Singh accused appellant.
3. I have heard the learned counsel for the accused-appellant Sugriv Singh who is in custody and the learned A.G.A.
4. The prosecution story in this case was that on 25-7-1977, two constables of police station Ekdil, who had made departure from the police station on patrol duty through G.D. No. 27 at 7.45 p.m., returned to the police station at 9.45 p.m. along with an informant who informed that a gang of accused Ram Singh will assemble at the Kothari of Sukhnandan Singh in village Mainamau near Mugal Road for committing dacoity of motor and trucks etc. that on getting the said information the S.O. Salig Ram Singh who is P.W. 1 in this case, got the information entered in the G.D. at the police station and made departure from the police station along with force; that he took Om Prakash, Budhi Singh (PW 3) and Shiv Ram from the way and then reached near Chor Barre and there the members of the force and witnesses took mutual search to ensure that no body had any illicit arms with him; that then the S.O. made two parties one party is in his own leadership in which were included constables head constable Mewa Lal and public witnesses Budhu Singh PW 3 and Om Prakash and the informer and the second party in the leadership of S.I. Hira Singh, including the witness Shiv Dayal and constables therein, that after giving necessary instructions to the force and witnesses, he went to the spot along with them and posted his own party on the east of the Kothari of Sukhnandan in the Aar of heap of mud and posted party No. 2 on the west of the Kothari in the Aar of Mand and then started waiting for the arrival of the dacoits; that at 11.30 p.m. dacoits started coming in ones and twos 'and sitting in the Kothari and started smoking Biris; that after some time one of the dacoits said that "Ustad Shiv Raj Singh Jinko Aan Tha Aa Gaye. Dakaiti Ka Samai Ho Gya Hai. Intjar Karne Ka Koi Labh Nahi Hai. Ham Sabke Pas Acchey Hathiyar Hai. Is Samai Kafi Truck Sarak Par Aa Ja Rahe Hai, Truckon Me Kafi Mal Milega and then they got up to proceed"; that hearing this, the S.O. and other got satisfied that it is the gang of dacoits assembled and preparing to commit dacoity; that the dacoits got up to proceed the S.O. fired V.L.P. shot challenging the dacoits that they are under the seize of the police and they will be done to death if they tried to run; that on this the dacoits started running helter skelter; that the police party and the witnesses arrested three of them at the spot while three of the dacoits managed to escape. The prosecution story further is that the arrested dacoits were Shiv Ram Singh, Pancham and Sugriv Singh; That on a search being taken, a country made Tamancha with six live cartridges was recovered a Jhola in the possession of Shiv Ram Singh accused-appellant; that a country made Tamancha and five live cartridge were recovered from a Jhola in possession of Pancha co-accused arrested at the spot (not tried in the present case); that a Pharsa and a knife were recovered from the possession of accused-appellant Sugriv Singh; that pieces of half burnt biris and match sticks were recovered from the place where the dacoits were assembled; that recovery memos were prepared at the spot and these recovered properties were sealed separately and then the police returned to the police station along with the arrested accused and recovered properties. Chick report in this case was prepared at the police station on 26-7-1977 at 2.35 a.m. On the basis of the recovery memo prepared on the spot and a case was registered under Sections 399/402, I.P.C. and 25 of the Arms Act.
5. At the trial, the prosecution has examined Salig Ram Singh S.O., the architect of the raid as PW 1 and Budhi Singh public witness belonging to party No. 1 as PW 3, G.D. entry No. 27 about the departure of patrol party consisting of two constable; the G.D. entry about their return at the police station along with informer which also included an entry about the departure of S.O. with the policy party consequent upon the information given by the informer have been duly proved by Mewa Lal Head Constable (PW 2). The said constable had also proved the Chik report and the G.D. entry made at the police station about the registration of the case which contained the details about the lodging of the arrested accused along with received properties. Sri Mohd. Muin, the investigation Officer of the case has been examined as PW 4.
6. Three witnesses were examined from the side of the defence.
7. The testimony of Saling Ram S.O.(PW 1), who was the architect of the raid and who made the spot arrest and recovery is corroborated variously which is corroborated by G.D. entry No. 27 aforesaid and G.D. entry No. 34 of the police station which have been produced and duly proved before the Court and whose copies have been filed on the record. It is further corroborated by the articles recovered at the spot which were produced at the trial. It is also corroborated by the testimony of Budhu Singh (PW 3) who is a member of party No. 1. Budhu Singh was a public witness.
8. Much has been said against the prosecution story and the prosecution evidence. It has been said that no fire is said to have been made by dacoits arrested at the spot at the police party or by the police party at the dacoits; that no weapon is said to have been used by the assembled dacoits against the police and public witnesses and none of the members of the police force or public witnesses were injured in the occurrence. It is also argued that the retorts of the dacoits testified by Salig Ram S.O. (PW 1) were not corroborated by Budhu Singh (PW 3), the only public witness produced in the trial; that there was also discrepancy about the place where the arrest was made; that while according to Salig Ram S.O. (PW 1), the architect of the raid, the arrest was made outside the northern door of the Kothari where they were said to be assembled; that according to Budhu Singh (PW 3) the arrest was made from inside the Kothari. It has also be said that it will not be easy to hear from outside the conversation of the persons assembled at the Kothari. But this only explains that the public witness Budhu Singh (PW 3) could not decipher the contents of the conversation. In this case, there are some unusual features which are worth notice due to which the prosecution story about the raid, arrests and recovery could be safely believed. The recovery memo makes the specific mention that the three dacoits were arrested on the spot after making necessary Marpit. There is also a mention in the G.D. entry about the return of the police force at the police station after the occurrence along with three arrested that the bodies of the three arrested accused were free from injuries except those caused in the process of arrest. Then there is no allegation anywhere in the cross-examination of Salig Ram S.O. (PW 1) that he had any enmity with any of the three accused whose spot arrest was shown in the case. No reason for false implication was suggested to him in his cross-examination by the learned counsel for the accused persons. There was a unified cross-examination of the S.O. on behalf of both the accused persons Shiv Ram Singh and Sugriv Singh (the present accused-appellants) being tried in the sessions trial. Budhu Singh (PW 3) (public witness of arrest and recovery) was also not suggested anywhere in his cross-examination that he had enmity with any of the two accused-appellants or that he was at the back and call of S.O. Salig Ram Singh (PW 1), the architect of the case. Then in the cross-examination of Salig Ram Singh (PW 1), the suggestion made was that accused-persons were arrested from the house of their relation Gyan Singh resident of village Birare. Out of the three accused persons whose spot arrest was claimed in the prosecution story, Shiv Ram Singh and Sugriv Singh were Thakur by caste while Pancham accused, the third accused said to have been arrested on the spot is Jatav as per the recovery memo. Shiv Ram Singh accused-appellant is resident of village Papare, P.S. Nagla Khangar, district Manipuri while Sugriv accused-appellant is said to be resident of village Bijauli, P.S. Kakewar, district Etawah while the third accused Kanchan was resident of village Birare, P.S. Kakewar, district Etawah. Even taking the suggestion as made only in respect of Shiv Ram Singh and Sugriv Singh accused appellants things do not improve for the defence.
9. Shiv Ram Singh accused-appellant in his statement under Section 313, Cr.P.C. claimed that the prosecution story of arrest and recovery was wrong and that the witnesses gave evidence against them under the influence of the police and he has been wrongly implicated but said nothing further in his statement. He did not claim any enmity with any police or any public witness. Then in his statement under Section 313, Cr.P.C. Sugriv Singh accused-appellant similarly made denial of the arrest and recovery and said that the witnesses gave evidence against him under the pressure of the police. However, he also has not claimed in his statement under Section 313, Cr. P.C. any enmity with police or with any public witness in this case.
10. Then the defence has examined as may as three witnesses in this case. Shyam Babu Singh was examined as DW 1. He is resident of Village Birarey, Police Station Ekdil, district Etawah. He testified that Shiv Ram Singh accused appellant was his relation; that Sugriv accused appellant was of his Khandan and that Gyan Singh was his real Dau (elder brother) and that he and Gyan Singh lived jointly. He testified that 2 years and 3-4 months earlier Shiv Ram Singh accused-appellant came to his place at 5.00 p.m. for the purpose of marriage because he was going with him to Sikela Gaon and he said to Shiv Ram Singh accused-appellant that they would go to see the match (boy) in the morning; that at 7.00 p.m. one S.I. and four constables came and arrested Shiv Ram accused-appellant and Sugriv Singh accused-appellant from their door and on being asked as to what is the matter, the S.I. told him that he would release them after making interrogation. He further testified that Daroga took both the accused-appellants with him at that very time. He further stated in his testimony that Sugriv Singh accused-appellant lived in village Bijauli which was four miles away towards east from his own house while Shiv Ram Singh accused-appellant is resident of Village Pawre district Mainpuri which is 20-25 miles away from his house towards west. He repeated that on that day (the date of arrest) both the accused-appellants had come at his place at 5-6 p.m. Asked as to what is his relationship with accused Sugriv Singh-accused-appellant, he replied that he did not know. "Sugriv Singh Se Hamara Kya Rista Hai Mujhe Nahi Pata." As regards Shiv Ram Singh accused-appellant he claimed that the daughter of his real Phupa Ajmer Singh is married with him. However, he could not give the name of that daughter further more, he stated that he did not know if these two accused had any enmity with police or not. He admitted that he did not give any application before the Superintendent of Police or any other officer complaining of these arrests of the accused-persons from his house by the police. It is obvious, that he is not a relation of any of the two accused-appellants and has simply been produced to serve by way of defence.
11. The defence has examined Har Kishan s/o Mohan, resident of Village Birare, P.S, Ekdil, district Etawah as D.W. 2. He claimed that he was neighbour of Gyan Singh (who according to Shyam Babu Singh D.W. 1 was his real brother). He also testified to the arrest of Shiv Ram Singh and Jai Ram by a Sub-Inspector and 4 constables from the door of Gyan Singh. Then he put his hand on Sugriv Singh accused-appellant and said that he called that person as Jai Ram (meaning thereby that he did not even know the name of this accused-appellant Sugriv Singh because at no stage of the case it has been said by the defence that Jai Ram is another name of Sugriv Singh accused-appellant). Cross-examined from the side of the prosecution, this witness could not tell the name of the father, grand father or any ancestor higher up in the family of Sugriv Singh accused-appellant. He also could not tell as to how many brothers Sugriv Singh accused-appellant had. He claimed that Sugriv Singh accused-appellant migrated from his village 7-8 years ago; that Sugriv Singh accused did not have any cultivation or house in his village. He further claimed that Sugriv Singh accused-appellant had sold away his house to Gyan Singh while migrating from the village. It may be mentioned here that Shyam Babu Singh (DW 1), who claimed to be real brother of Gyan Singh did not mention anything about the living of Sugriv Singh accused-appellant in his village or about the migration of this accused-appellant Sugriv Singh from his village and also did not make any mention of any transfer of his house by Sugriv Singh accused-appellant to Gyan Singh. It may be also mentioned here that Har Kishan (DW 2) claimed in his cross-examination that the house would have been sold for Rs. 400-500/- but he could not tell whether any sale deed was executed. Obviously, he is produced at random in the witness box to serve as a witness of the arrest of the two accused-appellants, from a place other than the place of arrest set up by the police. It has been noticed that while Shyam Babu Singh (PW 1) claimed that Shiv Ram Singh came to his house for the purpose of going for marriage, he did not say for what purpose Sugriv Singh accused-appellant had come to his house. Furthermore, according to Shyam Babu Singh (DW 1), not only Shiv Ram Singh accused-appellant but also Sugriv Singh accused-appellant had come to his house on the date of occurrence (the date of arrest from his house at 5-6 p.m.) In other words, according to him, both the accused appellants Shiv Ram Singh and Sugriv Singh were arrested by the police from his house in the same evening in which they had come to his house, if he is to be believed. In this regard, Har Kishan (DW 2) has something else to say. He claimed that Sugriv Singh accused-appellant had reached there (i.e. at the house of Gyan Singh, real brother of Shyam Babu Singh DW 1) at 11.00 or 12.00 noon on the day of arrest from there while Shiv Ram Singh accused-appellant had reached there in the evening one day prior to the date of arrest. These discrepancies cannot be lightly brushed aside. Obviously, the cumulative effect of the evidence of both these defence witnesses is that both were falsely set up by the defence with a view to show the arrest of the accused-appellants from a place other than the spot of arrest set up by the prosecution.
12. The defence has also examined one Banwari Lal as DW 3. He testified that in the Kotha of Sukhnandan, which existed on the road side in village Maniyamau, Police Station Ekdil the Kotha in which according to the police, the dacoits had assembled and were preparing to commit dacoity and in which they were said to have been arrested by the police Sukhnandan lives for the last 5-6 years. This statement was given by him on 17-11-1979. The occurrence related to the year 1977. He also testified that Sukhnandan cultivated land and that he had become Sadhu and his entire house hold i.e. the family lived there (in that Kotha). Cross-examined by the State, this witness had admitted that Sukhnandan is alive and his wife is also alive; that Sukhnandan has two sons and three brothers. That his one son lived at Etawah and one lived at the house. He, however, admitted that no son of Sukhnandan lived in that Kotha (which is relevant here); that a house of Sukanandan is half furlong away from that Kotha and that the brothers and one son of Sukhnandan lived in that house. From these replies, everything is clear. There is a residential house of Sukhnandan at a distance of half furlong from the Kothari or Kotha (by whatever name called in which according to the prosecution case the dacoits assembled in the night of occurrence and from where they were arrested) and that Sukhanandan or his family did not live in that Kotha. Furthermore Sukhanandan, who was alive or his family members were the best witness to enter the witness box to say that they were living in that Kotha and that no dacoits assembled there and that the prosecution case about the raid, arrest and recovery was false. They have not been produced.
13. In view of the above discussion, I have no hesitation in accepting the prosecution story and the prosecution evidence in this case. The evidence led by the prosecution at the trial establishes beyond doubt that both these accusedappellants assembled along with others on the date, time and place as set up by the prosecution for the purpose of committing dacoity and were preparing to commit dacoity. Consequently their conviction for the offences under Sections 399/402, I.P.C. ought to stand.
14. A submission has been also made on the point of sentence. In my view in such a case, the sentence of two years' R.I. is on the lesser side and there is no occasion to reduce it.
15. For the reasons aforesaid, this appeal is dismissed. The conviction and sentence of accused-appellant Sugriv Singh for the offences under Sections 399/402, I.P.C. is maintained. He is in jail custody at present. He shall serve out his sentence according to law. The appeal in so far as accused appellant Shiv Ram Singh is concerned, abates.
16. Let a copy of this judgment be sent to the Sessions Judge concerned for information and compliance in record.
17. A copy of this judgment shall also be sent at once by the Registry to the Jailor, District Jail concerned for information and compliance.