T. P. GARG, J. ( 1 ) PRESENT Sri Sunil Kumar, learned counsel for the appellants, and the learned A. G. A. for the State. ( 2 ) RADHARAMAN, Narendra and Suraj, accused, have filed the present appeal against their conviction under Sections 399/402, I. P. C. , and Section 25 of the Arms Act and sentence to undergo R. I. for five years each under Section 399, I. P. C. , R. I. for three years each under Section 402, I. P. C. and R. I. for one year each to Radharaman and Narendra, accused under Section 25 of the Arms Act, passed by the I Addl. Sessions Judge, Mathura vide judgment dated 6-9-1979. During pendency of this appeal, Narendra, appellant No. 2, died on 8-11-1996 and hence his appeal stands abated under the provisions of Section 394 of the Code of Criminal Procedure. 2a. Brief facts giving rise to the present appeal are as under :sri Harveer Singh was posted as Station Officer, P. S. Barsana, District Mathura, in the year 1976. At about 8. 30 p. m. on 20-1-1976 he received a secret information that a gang of dacoits headed by Kishanveer would assemble in the Dharamshala of Janki Prasad in the Jungle of village Janau, at about 11. 30 p. m. , and would commit dacoity at the house of Roshan Singh Pradhan of village Janau at mid-night. Believing the aforesaid secret information reliable, Harveer Singh formed a raiding party consisting of several police officials and two independent witnesses; namely, Babu Lal and Sughar Singh, from village Barsana and started for the place of occurrence. An entry (Ext. Ka-1) was also made in the G. D. of the Police Station. The police party along with the aforesaid independent witnesses reached near Hathia-Ka-Pul. From there Harveer Singh sent two constables to collect few more witnesses from the public from village Hathia, but they carne back as none was available. Thereafter, they proceeded further and reached near the culvert in the area of village Janau. Harveer Singh deputed two constables for the protection of Roshan Singh Pradhan and two other constables to procure independent witnesses from village Janau. As many as four witnesses from the public were brought by the aforesaid two constables and they were Karan Singh, Kuddi, Hari Ram and Ramjit. Harveer Singh deputed two constables for the protection of Roshan Singh Pradhan and two other constables to procure independent witnesses from village Janau. As many as four witnesses from the public were brought by the aforesaid two constables and they were Karan Singh, Kuddi, Hari Ram and Ramjit. Personal search of the members of the party was taken amongst themselves, but nothing objectionable was recovered from the possession of any one of them. Harveer Singh separated the entire force in two parties : one was to be headed by him and the other by Sub-Inspector, Ram Singh Negi. The pass word gulab was decided amongst themselves. He gave necessary instructions to the entire force. Both the police parties, so formed, took their positions around the Dharamshala of Janki Prasad at about 11. 30 p. m. After about five minutes of their taking positions, a jeep came from the side of village Palson and stopped near the Dharamshala. As many as eight dacoits got down from the jeep, went inside the Dharamshala, sat in the Verandah, and started smoking Bidis. One of the culprits said that "bhaiwoh to Nahi Mila". The other said that they should wait for sometime more. Thereafter, the culprits remained sitting for 5/7 minutes more and went on smoking Bidis. when one of them said that the time was ripe; that all the village folks must have gone to sleep; that the Pradhan was a rich man, who was not keeping even a gun, whereas they were armed with sufficient weapons and that they should proceed and commit the dacoity. On hearing the aforesaid talks of the dacoits, Harveer Singh became satisfied that the culprits assembled there were dacoits and their purpose was to commit dacoity at the house of Roshan Singh Pradhan. Soon the culprits got up and were ready to proceed when Harveer Singh challenged them saying that they had been surrounded by the police and they should not try to run away, otherwise they would be killed, and further that they should hand over their weapons to the police. As directed by him, S. I. , Ram Singh Negi fired three very light pistol shots causing sufficient light in the entire area. The members of both the police parties also lit their torches and rushed towards the dacoits, who, by that time, had started running towards the jeep. As directed by him, S. I. , Ram Singh Negi fired three very light pistol shots causing sufficient light in the entire area. The members of both the police parties also lit their torches and rushed towards the dacoits, who, by that time, had started running towards the jeep. However, the police parties apprehended as many as five dacoits on the spot, while three others managed to escape. On being questioned, the dacoits arrested on the spot, disclosed their names as Chokhey, Narendra, Gyan Singh, Radharaman and Suraj. Their persons were searched. From the personal search of Radharaman, accused, a country made pistol (Ext. 1) and four live cartridges (Exts. 2 to 5) were recovered. There made into a sealed parcel and taken into possession, vide memo (Ext. Ka-3. ). From the possession of Narendra, accused, a country-made pistol (Ext. 6) and four five cartridges (Exts. 7 to 10) were recovered. These were made into sealed parcel and taken into possession, vide memo (Ext. Ka-2 ). From the possession of Suraj, accused, a knife (Ext. 11) and torch (Ext. 12) were recovered. These were taken into possession, vide memo (Ext. Ka-5 ). Recoveries were made from Chokhey and Gyan Singh as well, but we are not concerned with the same in the present appeal. The jeep was also taken into possession, vide Memo (Ext. Ka-G ). Three empty very light pistol cartridges were also taken into possession, vide memo (Ext. Ka-4 ). The recovered articles and the dacoits arrested on the spot were all brought to the Police Station, Barsana where Harveer Singh got the F. I. R. recorded by Constable Than Singh, which is Ext. Ka-7. A case was also registered in the G. D. , vide entry Ext. Ka-8. ( 3 ) THE investigation of the case was taken up by J. P. Sharma, Station Officer, P. S. Chhata, who recorded the statements of the witnesses, and prepared site-plan (Ext. Ka-9 ). He arrested the remaining three accused, viz. Kishanveer, Pooran and Ghasita, who had managed to escape, held an identification and on receipt of the result of the identification, he submitted a final report against Ghasita and charge-sheets (Exts. Ka-9 and Ka- 10) against Kishanveer, Puran, Narendra, Suraj and Radharaman. He also submitted separate charge-sheets under Section 25 of the Arms Act against Radharaman and Narendra, accused, which are Exts. Ka-9 and Ka- 10) against Kishanveer, Puran, Narendra, Suraj and Radharaman. He also submitted separate charge-sheets under Section 25 of the Arms Act against Radharaman and Narendra, accused, which are Exts. Ka-12 and Ka-13, after obtaining the sanction of the District Magistrate (Exts. Ka-14 and Ka-15) to prosecute these two accused under Section 25 of the Arms Act. ( 4 ) THE learned Addl. Sessions Judge charged Narendra, Suraj and Radharaman, present appellants (and Chokhey and Gyan Singh, who subsequently absconded and their trial was separated) under Sections 399/402, I. P. C. on the accusation; that on the night between 20/21-1-1976 at about 12. 00 O Clock in the night they made preparation by assembling in the Dharamshala of Janki Prasad in the Jungle of Nanau to commit dacoity at the house of Roshan Singh Pradhan. Narendra and Radharaman, accused, were separately charged under Section 25 of the Arms Act for being found in possession of a country-made pistol each and four live cartridges each without any licence or authority. All the accused pleaded not guilty to the respective charges and claimed trial. ( 5 ) IN support of its case, the prosecution examined as many as six P. Ws. They are Harveer Singh, Inspector of Police (P. W. 1), J. P. Sharma, Station Officer (P. W. 2), V. S. Tomar (P. W. 3), Constable Khazan Singh (P. W. 4), Banu Lal, an independent witness (P. W. 5), and Hari Ram, another independent witness (P. W. 6 ). The statements of all the accused were recorded under Section 313, Cr. P. C. All of them have denied the allegations and have stated that it was a false case against them. It has, inter alia, been pleaded that they have been falsely implicated in the case by the police due to party faction in the village. They have not led any oral evidence in support, of their defence. Suraj, accused, has, however, filed copy of judgment in S. T. Case No. 67 of 1976 in order to show that he was previously also challanged by the police, but was acquitted. They have not led any oral evidence in support, of their defence. Suraj, accused, has, however, filed copy of judgment in S. T. Case No. 67 of 1976 in order to show that he was previously also challanged by the police, but was acquitted. In addition, Suraj, accused, has pleaded that tie runs a shop at Mathura; that he is married in village Tajpur, P. S. Sadabag; that there is party faction in the village on account of which he and his wifes brother were implicated in a dacoity case of village Tajpur, but they were acquitted and hence he has been falsely implicated in the present case by the police. A copy of judgment, referred to above, has also been placed on record by him. Narendra, accused, has, however, added that one Dalveer, a resident of village Jatwar, P. S. Iglas, and who is a relation of Harveer Singh, P. W. 1 has enmity with one Bhagwat of his village and Bhagwat has got him implicated in the aforesaid case through the aforesaid Dalveer Singh. Radharaman, accused, has added that Gajjan and Onkar, residents of Mehrauli, are the father-in-law and uncle-in-law of his wifes brother, Bhagwan Singh; that he had gone to Mehrauli to attend a marriage where he was arrested at the instance of Shyam Pradhan of village Nauguva on account of enmity between the said Shyam Pradhan and his in-laws. ( 6 ) THE learned trial Judge, believing the prosecution version and disbelieving that of the accused, held Radharaman, Suraj and Narendra guilty under Sections 399/402, I. P. C. as also Narendra and Radharaman, accused, guilty under Section 25 of the Arms Act, convicted them thereunder and awarded the aforesaid sentences, against which the present appeal has been filed. He, however, acquitted Kishanveer and Puran, accused. ( 7 ) I have heard the learned counsel for the parties and have also gone through the record of the trial Court. ( 8 ) REFERRING to the pleas taken by Suraj, Narendra and Radharaman, appellants, in their statements under Section 313, Cr. P. C. , it was argued by the learned counsel for the appellants that they were not arrested at the spot and in the manner alleged by the prosecution, and rather they were arrested subsequently and implicated falsely in the present case. P. C. , it was argued by the learned counsel for the appellants that they were not arrested at the spot and in the manner alleged by the prosecution, and rather they were arrested subsequently and implicated falsely in the present case. After hearing the learned A. G. A. for the State and going through the entire evidence on record, I find that the argument advanced by the learned counsel for the appellants is without, merit. There is overwhelming oral evidence on record to prove that all the three appellants were arrested on the spot in the manner alleged by the prosecution. Inspector, Harveer Singh, P. W. 1, has given a detailed account of the entire occurrence that took place in the night between 20/21-1-1976 and all that happened thereafter. He has stated that he received a secret information on 20-1-1976 at 8. 30 p. m. that a gang of dacoits headed by Kishanveer would assemble in the Dharamshala of Janki Prasad in the Jungle of village Janau. He recorded a report in the G. D. , a reference of which has been made in the F. I. R. (Ext. Ka-7 ). He also recorded the secret information, as is evident from G. D. entry (Ex. Ka-1 ). His evidence stands fully corroborated from that of Babu Lal and Hari Ram, P. Ws. 5 and 6, respectively. Both of them are independent witnesses and have stated that they were told by the police that a raid was being arranged for arresting a gang of dacoits, who would assemble in the aforesaid Dharamshala. Harveer Singh, P. W. 1, has categorically stated that he along with members of the police party and independent witnesses from the public arrived at the place of occurrence and took their positions at about 11. 30 p. m. Further that a few minutes after their arrival, a jeep came there from which as many as eight culprits got down and went to the Dharamshala, where they sat in the Verandah. He has given a detailed account of the manner in which two separate police parties were formed, the culprits were surrounded and challenged. He has stated that as many as five dacoits were arrested on the spot, while three others managed to escape. He has given a detailed account of the manner in which two separate police parties were formed, the culprits were surrounded and challenged. He has stated that as many as five dacoits were arrested on the spot, while three others managed to escape. He has also stated that while he had taken position on one side of the Dharamshala, one of the dacoits said that enough time had elapsed; that they had sufficient arms and ammunition and that they should go and commit the dacoity. It was on these words uttered by one of the dacoits that Harveer Singh, P. W. 1, challenged and told them that they had been surrounded by the police. Babu Lal and Hari Ram, P. Ws. 5 and 6, are residents of village Barsana and both of them were members of the raiding party. Both of them have given a detailed account of the entire occurrence. They have stated that the dacoits were talking amongst themselves; that they were saying that none had come there; that one of them said that they should now proceed as they had sufficient material with them and all the village folks must have gone to sleep by then. To the same effect is the statement of Hari Ram, who has added that the dacoits were talking amongst themselves and were saying that village folks must have gone to sleep and that Roshan Pradhan had no gun and that they should now proceed. The evidence of both these P. Ws. fully corroborate the testimony of Harveer Singh, P. W. , on all material points. All these witnesses, i. e. Harveer Singh, Babu Lal and Hari Ram, were cross-examined quite at length. They were taken through each and every detail of the occurrence that took place in the night between 20/21-1-1976 and all that happened on that night and thereafter. They stood the rigour of cross-examination and their evidence is natural and straight-forward. None of them has been shown to be in any manner either inimical against the accused or interested in the police so as would come forward and make a false statement on oath. It was half-heartedly argued that while Hari Ram has admitted in his cross-examination that it was a dark night but then it was a moonlit night and so it should be presumed that Hari Ram did not witness the occurrence. It was half-heartedly argued that while Hari Ram has admitted in his cross-examination that it was a dark night but then it was a moonlit night and so it should be presumed that Hari Ram did not witness the occurrence. But then, to my mind, the said discrepancy in the evidence of Hari Ram, P. W. , is of no significance in view of the fact that the occurrence took place on 20-1-1976 while his statement was recorded on 3-9-79, i. e. after the lapse of a period of more than 31/2 years. Under the circumstances, it is very difficult for any person to remember such minute details about the dark night or the moonlit night and so on after the lapse of such a long period. Moreover, it has no bearing on the merits of the case, particularly when the evidence of both Hari Ram and Babu Lal is consistent, cogent and convincing and corroborates the testimony of Harveer Singh, P. W. on all materials points. The manner in which the occurrence took place and the arrests of the accused was made is, thus, proved beyond reasonable doubt. ( 9 ) TAKING the individual pleas raised by the appellants, Suraj, accused, has stated that he runs a shop at Mathura; that he is married in village Tajpur, P. S. Sadabag; that there is party faction in the village on account of which he and his brother-in-law (wifes brother) were implicated in a dacoity case of village Tajpur and in which he was acquitted. A copy of the judgment in which he was acquitted has also been relied upon. A suggestion was also made to the witnesses that Suraj was arrested from his house at Mathura. But then the said plea is of no significance in view of the fact that the present occurrence took place out of the jurisdiction of P. S. Barsana. There are no reasons as to why the Station Officer, P. S. Barsana, would implicate Suraj, accused, falsely from Mathura due to alleged party faction in village Tajpur, P. S. Sadabag. But then the said plea is of no significance in view of the fact that the present occurrence took place out of the jurisdiction of P. S. Barsana. There are no reasons as to why the Station Officer, P. S. Barsana, would implicate Suraj, accused, falsely from Mathura due to alleged party faction in village Tajpur, P. S. Sadabag. Moreover, no direct involvement of this accused in the alleged party faction of village Tajpur has been pleaded nor any material has been brought on the record to suggest that Harveer Singh, P. W. , was in any manner hostile or prejudiced against this accused so as would go to implicate him falsely in any such case. The fact remains that Suraj, accused, has been arrested on the spot while he along with co-accused tried to escape and a knife (Ext. 11) and a torch (Ext. 12) were recovered from his possession. It is, thus, evident that the plea raised by Suraj, accused, in his defence has been rightly rejected by the trial Court. ( 10 ) TAKING now the case of Radharaman, appellant, he has stated that Gajjan and Onkar, both residents of Mehrauli, are the father-in-law and uncle-in-law of his brother-in-law, Bhagwan Singh; that he had gone to Mehrauli to attend a marriage where he was arrested at the instance of Shyam Pradhan of Nauguva as there is enmity between his in-laws and the said Shyam Pradhan. The trial Court has rejected the said plea as without any basis and, in my opinion, rightly so. The alleged enmity is stated to be between one Shyam Pradhan of village Nauguva and the in-laws of this (Radharaman) accused. It has not been shown as to how and in what manner Shyam Pradhan was inimical against Radharaman, accused, so as would try to implicate him falsely in any such case and not his in-laws with whom the enmity is alleged. It has also not been shown as to how the Barsana Police was under the influence of said Shyam Pradhan so as would implicate this accused falsely in any such case. It has also not been shown as to how Harveer Singh was inimical against Radharaman, accused, so as would try to implicate him in any such case. The plea taken by this accused is in the nature of an excuse and has been rightly rejected by the trial Court. It has also not been shown as to how Harveer Singh was inimical against Radharaman, accused, so as would try to implicate him in any such case. The plea taken by this accused is in the nature of an excuse and has been rightly rejected by the trial Court. ( 11 ) UNDER the circumstances, from the sworn testimony of the P. Ws. Harveer Singh, Babu Lal and Hari Ram, the prosecution story is proved beyond reasonable doubt. The accused-appellants had assembled in the Dharamshala of Janki Prasad in the Jungle of village Janau and were making preparation to commit dacoity at the house of Roshan Singh Pradhan. They had come there in a jeep which was subsequently taken into possession by the police vide memo (Ext. Ka-6 ). ( 12 ) IT was further argued by the learned defence counsel that none of the witnesses could hear the conversation of the accused amongst themselves from the places where they had taken position. He has also referred to the case reported in 1995 JIC 44 (Alld) Maqbool Ahmad v. State of U. P. where, while dealing with a similar case, Hon. G. S. N. Tripathi, J. has held that where police parties are at a distance of about 40 to 80 paces in different directions, it is impossible to hear the conversation amongst themselves. However, the facts and circumstances of the present case being quite different, the appellant can derive no advantage from Maqbool Ahmads case (supra ). The site-plan (Ext. Ka-9) shows that the accused were sitting in the Verandah at point a, police party No. 1 had taken position at point b, and police party No. 2 had taken position at point c. After the arrival of the accused in the jeep, police party No. 1 moved towards the east of the Dharamshala at point d. The accused were surrounded and apprehended at point eee. Harveer Singh, P. W. , was cross-examined on this point. He has stated that the accused were apprehended at a distance of about 15 paces from the Verandah. In reply to a question as to in which direction his party had taken position, he has correctly stated that it was in the east. Harveer Singh, P. W. , was cross-examined on this point. He has stated that the accused were apprehended at a distance of about 15 paces from the Verandah. In reply to a question as to in which direction his party had taken position, he has correctly stated that it was in the east. Further that there is a common wall of the Verandah and the two rooms in the Verandah and the place where they had taken position, the accused were not visible but only their voice was audible. Having regard to point d (in the site-plan Ext. Ka-9) where police party No. 1 had finally come and the point a where the accused were sitting, it was quite natural and possible that the talks of the accused amongst themselves were quite audible to the police party. Babu Lal, P. W. , has categorically stated in his cross-examination that he saw the culprits from a distance of 5-7 paces. To the same effect is the statement of Hari Ram, P. W. , who has stated that the culprits were clearly visible from the place where they had taken position and that the culprits were at a distance of only two paces. Under the circumstances and in view of the categorical statements of all these witnesses, it is proved beyond reasonable doubt that they clearly heard the talks of the accused amongst themselves and that the culprits were clearly visible to them as not only it was a moonlit night but at the instance of Harveer Singh, P. W. , S. I. Ram Singh Negi fired three very light pistol shots causing sufficient light in the entire area. Maqbool Singhs case (supra) does not help the appellants in any manner. ( 13 ) IT was finally argued that the number and model of the jeep was not recorded in the recovery memo, thus, making the recovery of the jeep quite doubtful. In my opinion, the said argument is also without merit. In the recovery memo (Ext. Ka-6) it is clearly stated that the jeep bearing No. HC-3367, was an old vehicle in running condition; that there wars a cushioned seat on the drivers seat, but no other seat had cushion over it and that the cloth with which the jeep was covered was in a torn condition. In opinion, the particulars of the jeep, recorded in the recovery memo (Ext. In opinion, the particulars of the jeep, recorded in the recovery memo (Ext. Ka-6), were quite sufficient to establish its identify and simply because the model of the jeep has not been recorded does not make the recovery of the vehicle doubtful in any manner. ( 14 ) THE fact, therefore, remains that the appellants along with others were arrested on the spot in the manner alleged and proved by the prosecution and they had no other motive except to commit dacoity at the house of Roshan Singh Pradhan. The three appellants belonged to different places. Their two accomplices also belonged to different places. In this manner, all the culprits, who had assembled in the aforesaid Dharamshala, were residents of different villages and had no other reason to assemble there except for the purpose of committing dacoity. The testimony of the P. Ws. is satisfactory, reliable, cogent and convincing and proves the case against the accused beyond reasonable doubt. The defence version, on the other hand, is in the nature of an excuse and has been rightly rejected by the trial Court. ( 15 ) IT was finally submitted on behalf of the higher side. Having regard to the facts and circumstances of the case, I find that the sentence awarded to the appellants was commensurate with the offence committed by them and the same cannot be said to be on the higher side. ( 16 ) IN view of above discussions, there is no merit in the present appeal. It is accordingly dismissed and the conviction and sentence of the appellants are both maintained. ( 17 ) AS per report of the Chief Judicial Magistrate, Mathura, dated 24-12-1996, Radharaman, appellant, has been sent to District Jail, Mathura, after he surrendered in that Court. As per the report dated 16-11-1996 made by the Chief Judicial Magistrate, Mathura, Suraj, appellant, is undergoing sentence in some other case in District Jail, Rohtak (Haryana ). Necessary intimation be, therefore, sent to the District Jail, Mathura, and District Jail, Rohtak (Haryana) about the result of the appeal. Appeal dismissed.