Judgment

SIKRI, J.: This appeal, by special leave, by the State of Uttar Pradesh is directed against the judgment and order of the High Court of Judicature at Allahabad allowing the appeals of the nine accused and setting aside the convictions recorded against them by the learned Sessions Judge, Banda, who had convicted them under Sections 399 and 402, I. P. C., and also five of them under Section 25 (a) of the Indian Arms Act.

2. Nine accused were sent up for trial. Out of them the State has filed appeal against eight. Chiri is reported to have expired and appeal against him has become infructuous. Bimla is reported to have been murdered and the appeal against him has also become infructuous Sunwa is not traceable and the notice of the filing of the appeal has not been served on him yet. He is reported to be absconding. The appeal against him will be kept pending and will be disposed of when he has been served with the notice.

Accordingly, we are concerned with the appeal of the State against Rajju, original accused No. 2 in Sessions Trial No. 91 of 1964, Dharamraj alias Dharma, original accused No. 7, Chunnilal, original accused No. 3, Gaya Prasad, original accused No. 5, and Kappa, original accused No. 8.

3. The case of the prosecution is given by Abdul Nain Siddiqui, P. W. 1, who was. S.. O., Police Station Baberu. On April 11, 1964, he had gone to village Hardauli in connection with the investigation of another case. At about 3 p. m. an informer contacted him and told him that Chunnilal, accused No. 3, was bringing Bimla accused, since deceased and members of his gang to his house in the evening with the intention of committing dacoity at the house of Keshav Maharaj situate in village Jugarhali at night. He promised to give further information later. On his return to the Police Station P. W. 1 made entry to this effect in the general diary At 3.15 p. m. he telephoned the S. P. but he was not available at the headquarters. He, therefore, telephoned the Kotwali requesting for a police force. The force did not arrive by 5.17 p. m, at 8.15 p. m. the informer contacted him at the Police station and reported that the gang had arrived at the baithak of Chunnilal, accused No. 3, and gave particulars of the members of the gang, and the arms with them. P. W. 1 asked the informer to meet him at about 10 p. m. on the same night outside the abadi of village Ahar. He made an entry to this effect in the general diary at 8.15 p. m. At 8.30 p. m. P. W. 1. with a number of persons, who were armed, left the police station P. W. 1 also directed constable Sadiq Husain to reach Jugarhali and inform Keshav Maharaj that he should collect the members of V D. S. and the licensees and keep watch. P. W. 1, with the police force, then proceeded to village Ahar in a truck and they got down near the nallah outside the abadi about 1 1/2 furlongs from it and waited for the informer to contact them. Dinanath, constable, in the meantime had brought members of the V. D. S. and persons who were licensees of firearms. The informer contacted them and informed P. W. 1 and the other members of his party that the dacoits were having their meals and drinking wine and when the dacoits leave the place for committing dacoity he would come out first from the baithak of Chunnilal and would strike matchstick twice to indicate the departure of the dacoits towards Jugarhali P. W. 1 then divided the police personnel and other Persons into three parties and gave suitable instructions. It is not necessary to give details of the persons who were in each party. At about 11.30 p. m. the informer came out of the baithak of Chunnilal and struck a matchstick twice. On this P. W. 1 fired a shot from the V. L. Pistol end then one of the dacoits fired a shot from his gun, and P. W. 1 fired two shots from the double barrel gun in reply. Then the members of the three parties surrounded the accused and caught them there and then. The informer and the dacoit who had fired the shot disappear