Judgment : B.K. Sharma 1. THIS is an appeal against the judgment and order dated 8.4.1980 passed by Sri S. N. Singh, the then Additional Sessions Judge, Lalitpur in S. T. No. 43 of 1979, whereby he convicted the accused-appellants of the offences under Section 399/402,I.P.C. and sentenced them to undergo 2 years R.I. for each of the offences. The sentences were made to run concurrently. 2. HEARD the learned counsel for the parties and perused the records. The prosecution story was that on 28.2.1979 Sri Chhetrapal Singh, the then S.O. of P.S. Girar received information at 16.05 hours from a reliable informer that the gang of Nathua Kachchi will assemble under Mahuwa tree on the Patha of Murai and make preparation for committing dacoity in the house of Sunder Lal Jain in village Kutgawan. On this information, he made entry in the G. D. at SI. No. 16 and then made departure along with police force through G. D. No. 17 at 16.15 hours. He also took four constables of A. P. Guard from village Balna where they were posted, took public witness Baldeo Singh along with his personal gun and witnesses Pooran Manua and Mardama alongwith lathies and then went to the house of Sundar Lal Jain in village Kutgawan and reached there at 7 p.m. and informed him about the plan to commit dacoity at his house, posted two constables at his house for his security. Then he took public witness Chandra Bhan Singh with his private gun and public witness Baldeo Singh with his private gun and then reached at the primary school of village Kutgawan and there were made three parties of force and the witnesses. The first party was made by him in his own leadership in which there were included three constables and two public witnesses Baldeo Singh and Mardama. The second was made in the leadership of A. S. I. Randhir Singh and two constables and public witness Chandra Bhan Singh and Manua were included in the same. The third party was made in the leadership of Hari Ram constable. It included with him three other constables and public witness Baldeo Singh and Pooran. After giving necessary instructions to them, he took all the three parties to the Patha of Murai at 7.45 p.m. and posted them there. The third party was made in the leadership of Hari Ram constable. It included with him three other constables and public witness Baldeo Singh and Pooran. After giving necessary instructions to them, he took all the three parties to the Patha of Murai at 7.45 p.m. and posted them there. The first party was positioned to the South of the Mahuwa tree in the Aar of stones at the distance of about 20 paces. The second party was posted to the East of the Mahuwa tree in the Aar of stones at the distance of 25 paces. The third party was posted to the West of Mahuwa tree in the Aar of Jhar and Tendu Bush at a distance of 25 paces. The parties took their respective positions at 8.00 p.m. and started waiting for the dacoits. After sometime, the dacoits came from the North and set under the Mahuwa tree and started smoking birtes and conversing with each other. 3. THE prosecution case further is that the dacoits were telling each other that the village is a small one and there were only two guns in all in the village, that up till then, people must be doing 'Biyari' and the doors of their houses would be open and it would be easy to commit dacoity and loot cash and ornaments at that rime, that in case they are late, the police guard of village Balna would come, now he would not come let them commit dacoity, that on this, the architect of the raid and leader of the first party Chhetrapal Singh, the then S.O. flashed his torch and all the three parties raided the dacoits and succeeded in arresting 4 of them at the spot, though two of their companions managed to escape. Out of the arrested dacoits, one was Veer Singh from whose right hand one D. B. B. L. loaded gun besides 100 gms. Barood, 10 topies, 25 pellets, torch, one biri bundle and match box were recovered from him. There was said to be a recovery of a single barrel loaded gun from the person of Natthu Kachchi accused along with 8 topies, 10 gms. Barood with 14 pellets, torch, one biri bundle and match box. Barood, 10 topies, 25 pellets, torch, one biri bundle and match box were recovered from him. There was said to be a recovery of a single barrel loaded gun from the person of Natthu Kachchi accused along with 8 topies, 10 gms. Barood with 14 pellets, torch, one biri bundle and match box. A ballam was recovered from the possession of Parichhat Kachchi accused beside a biri bundle and match box and a lathi was recovered from the possession of the accused Phundi along with biri bundle and match box. Usual recovery memo is alleged to have been prepared and the accused are said to have been taken to the police station and a chick report was prepared at the dictation of Chhetrapal Singh, S.O. and the case was registered under Section 399/402, I.P.C. against all the 4 accused and the cases were also registered under Section 25 Arms Act against Veer Singh and Nathuwa accused. All the accused made denial of the spot arrest and the recoveries. 4. NATHUWA accused claimed that earlier he has been prosecuted in a similar case and after the acquittal, he has been falsely implicated in the present case. Parichhat accused claimed that he has been falsely implicated in this case due to the enmity with witnesses. Veer Singh accused claimed that he was arrested from his house and falsely implicated. Phundi accused claimed that he was falsely implicated as he and other had lodged a report against the witnesses. The trial court accepted the prosecution witnesses in to to. This appeal has been preferred by Parichhat and Phundi accused alone. Apparently, no appeal has been preferred by the other two convicted accused. The record bears out that those two accused were unable to engage a private counsel as they were in custody through out the trial and had sought an amicus to defend themselves. However, non-challenge of their conviction by the said co-accused Veer Singh and Nathuwa does not stand in the way of the present accused appellants in this appeal which is to be decided on merits. 5. THE entire prosecution story in this case appears to be a paper transaction. However, non-challenge of their conviction by the said co-accused Veer Singh and Nathuwa does not stand in the way of the present accused appellants in this appeal which is to be decided on merits. 5. THE entire prosecution story in this case appears to be a paper transaction. As per the prosecution story, the architect of the raid S.O. Chhetrapal Singh made his departure from the police station with one A.S.I. and seven constables with arm and ammunition but he did not rest content with this and claimed to have taken from the way four constables with arms of A. P. Guard from village Balna. Further he claims to have taken public witnesses Baldev Singh, Pooran Manuwa and Mardama. Then he claims to have gone to the house of Sunder Lal intended victim in village Khutgawan and to have taken two public witnesses from village Khutgawan also and then they are said to have reached at the primary school of the village and there the formation of parties was made. All this exercise is said to have been done in time, though this movement if actually made was not likely to escape the notice of the bad characters if they were about to assemble as alleged and make preparation for committing dacoity at the house of Sunder Lal Jain. The evidence about the positioning of the parties is also suspect. The three parties could hardly conceal themselves behind jhar Jhankhar and behind stones. The culprits when they came below the Manuwa tree, could hardly fail to notice the presence of so many persons around them. A graphic description of the conversation amongst the dacoits have been given from the prosecution side, though if the culprits really assembled at the place and actually made conversation with each other, their voices were not likely to be overheard as claimed. The departure G. D. No. 17 (Ex. Ka-2) contains an averment that the S.O. made his departure with a pistol and 30 cartridges and one V. L. P. with 13 cartridges and a torch. In the chik F.I.R. also, there is mention of his departure from the police station alongwith one V. L. P. and 13 cartridges but in the recovery memo (Ex. Ka-2) contains an averment that the S.O. made his departure with a pistol and 30 cartridges and one V. L. P. with 13 cartridges and a torch. In the chik F.I.R. also, there is mention of his departure from the police station alongwith one V. L. P. and 13 cartridges but in the recovery memo (Ex. Ka-3) or in the chik report or in the evidence of the S.O. Chhetrapal Singh at the trial, there is absolutely no mention of a single V.L.P. shot being fired at the time of occurrence though, the occurrence is said to have taken place at 8.30 p.m. as per chik report. 6. CHANDRABHAN Singh, P.W. 2 a public witness categorically stated in para 15 of his evidence that it was a dark night and that no V.L.P. shot was fired in the occurrence. Mardan P.W. 3, another public witness claimed in para 9 of his evidence that the S.O. had fired a V.L.P. (very light pistol) shot which had created a flood of light. He further stated that when the V.L.P. fire was made by the S.O., an explosion had taken place. He further stated that the V.L.P. shot has been fired by the S.O. Chhetrapal Singh as soon as he challenged the dacoits. Then as per prosecution story, the S.O. challenged the dacoits and the raid was made and also the spot arrest was made all without fire of a single shot by the dacoits two of whom are said to have been arrested at the spot with their barrels loaded. There is also no allegation that any member of the police force or anyone of the public witnesses received any injury of any kind on their person in the entire transaction nor is there any allegation that any of the arrested accused received any injury of any type of their person in the transaction. 7. CHANDRA bhan Singh, P.W. 2 claimed in para 14 of his evidence that in all three fires were shot at the spot but in that, he has been contradicted by the S.O. Chhetrapal Singh who was the architect of the raid. 8. 7. CHANDRA bhan Singh, P.W. 2 claimed in para 14 of his evidence that in all three fires were shot at the spot but in that, he has been contradicted by the S.O. Chhetrapal Singh who was the architect of the raid. 8. MARDAN P.W. 3, did not mention in his statement at the trial about any firing at the spot except that he mentioned about a V.L.P. fire being shot at the spot by the S.O. S.O. Chhetrapal Singh has claimed in his evidence about the coming of the dacoits from North some time after they (the raiding parties) had taken position at the spot. Chandrabhan Singh P.W. 2 claimed the coming of dacoits in three instalments, two bad characters came sometime after the parties had taken their position, then after sometime two more came and joined the earlier ones and after sometime yet two more persons came. Mardan P.W. 3 claimed in para 2 of his evidence that 5-6 dacoits came one behind the other and sat under the Mahuwa tree. There is discrepancy about the contents of the retorts imputed to the dacoits. According to the S.O., retorts were, "nagdi va jewar lootna". According to Mardan, P.W. 3, they were saying "bartan vagaira nahin balki sona chandi lootna hai". According to the S.O., dacoits were saying "Der honey per baina ki police guard aa sakti hat" Chandrabhan Singh P.W. 2 and Mardan P.W. 3 did not testify to having heard any such retorts. According to the S.O., dacoits were retorting, "gaon chhota hai fail do bandukey hai. Abhi log byari kar rakhey hongey". Chandrabhan Singh P.W. 2 and Mardan P.W. 3 did not testify to having heard any such retorts. It seems that words have been put in the mouth of the persons alleged to have assembled so that their intention of assembly and preparation for committing dacoity could be inferred. Chandrabhan P.W. 2 claimed to have overheard the conversation from a distance of 20-25 paces. He claimed that the conversation was being made in the ordinary pitch of normal conversation. Mardan P.W. 3 claimed that his party was located at a distance of 20 paces towards South from the place where the dacoits were sitting under the Mahuwa tree. 9. Chandrabhan P.W. 2 claimed to have overheard the conversation from a distance of 20-25 paces. He claimed that the conversation was being made in the ordinary pitch of normal conversation. Mardan P.W. 3 claimed that his party was located at a distance of 20 paces towards South from the place where the dacoits were sitting under the Mahuwa tree. 9. IN his examination-in-chief, the architect of the raid Chhetrapal Singh S. O. did not say anywhere that he gave a copy of the recovery memo to the accused persons. Chandrabhan Singh, P.W. 2 stated in para 14 of his evidence that on the spot, the accused persons were not given copy of the recovery memo. On the other hand, in the original recovery memo Ex. Ka-3 in the body writing, it has been stated in the last line, "Nakleyen muljiman ko di gayee to unhon ney leney sey inkar kiya." This is yet another circumstance to show that the prosecution story was a paper transaction. IN the ordinary course the question of giving copies of the documents to the accused would arise only after the document had been prepared and had been signed by the S.O. and the public witnesses and so if after all this was done, copies of the recovery memo were offered to the accused persons arrested at the spot an endorsement would have been made by the S.O. at the bottom of the documents. In fact, the sentence of the witnesses copies being offered to and refused by the accused/appellants was entered in the body writing of the document. The fact that the sentence has been incorporated in the body writing of the recovery memo itself shows that no copies were offered to the accused. 10. CHHETRAPAL Singh S.O., who was the architect of the raid, arrest and recovery admitted in his cross-examination in para No. 17 that he had challaned Parichhat present accused/appellant alongwith Nathuwa in the offence under Section 399/402, I.P.C. wherein he has been acquitted. He also admitted that he had arrested Parichhat accused/appellant in the year 1976 in some case. Chandrabhan Singh, P.W. 2 admitted that Baldwan Singh (another public witness) in the prosecution story though not examined) was his real brother and that Vijai Raja is the son of Baldwan Singh. He also admitted that he had arrested Parichhat accused/appellant in the year 1976 in some case. Chandrabhan Singh, P.W. 2 admitted that Baldwan Singh (another public witness) in the prosecution story though not examined) was his real brother and that Vijai Raja is the son of Baldwan Singh. The defence suggestion was that Vijai Raja had done Marpit with Chopa, younger maternal uncle of Phundi, accused/appellant and then police had done marpit with Vijai Raja and that for this reason he has given evidence against Phundi, accused/appellant. 11. IT is also to be noticed that the recovery memo does not contain the signatures of anyone of the police force being members of the raiding parties except the S.O. Chhetrapal Singh. The fact that their attestation was not got made on the documents throws further doubt over the prosecution story. 12. The defence suggestion to Chandrabhan Singh, P.W. 2 was that Parichhat accused/appellant refused to fill water at his house and for that reason, he has given evidence against him. Mardan, P.W. 3 in his cross-examination has admitted that Raman (Raggan) was his Kska and Pooran witness was son of that Raggan. He has further stated that he had apprehended one Manohar from Madhya Pradesh and given him in the custody of the S. O. Girar and has given his evidence in that case. He claimed that in that arrest, Chopa, maternal uncle of Phundi accused/ appellant was also with him. He admitted that Phundi accused is of his Khandan but the defence suggestion was that Phundi accused/appellant has lodged two F.I.Rs. against him (this witness). In P. S. Girar. He made no categorical denial about it but only pleaded ignorance. 13. IN view of the above discussion, the prosecution case cannot be believed and the accused/appellants Parichhat and Phundi must be acquitted. ORDER 14. THE appeal is consequently allowed. The judgment and order dated 8.4.1980 passed by the Additional Sessions Judge, Lalitpur in S. T. No. 43 of 1979 is set aside to the extent of the accused/appellants and they are acquitted of the offences under Section 399/402,I.P.C. They are on bail. They need not surrender to it. Their bail bonds are cancelled and sureties discharged. Let a copy of this judgment be sent to the Sessions Judge, concerned for information and compliance. Compliance report be submitted to this court within three months from today.