Dalveer Bhandari, J.

( 1 ) THIS appeal is directed against the judgment of learned Additional Sessions Judge, Delhi dated 27. 2. 1978 by which the accused appellant was convicted and sentenced to rigorous imprisonment for 2 years for the offence under Section 402, Indian Penal Code and to 1 year under Section 25 of the Arms Act. It may be pertinent to mention that the appeal was admitted on 11. 4. 1978 and at that time, Shri Bawa Gurcharan Singh, Advocate, appeared for the appellant. He unfortunately expired. This appeal has been on Board for quite some time and no one has appeared for the appellant. Therefore, for Court appointed Shri Naveen Thakur, Advocate, as Amicus Curiae in this case.

( 2 ) BRIEF facts which are necessary to dispose of this appeal are recapitulated as under.

( 3 ) THE appellant, Des Raj, alongwith Rambir @ Ranga, Jagdish @ Jaga, and Sat Pal @ Satti were allegedly found in possession of prohibited arms at Khatta, low lying area at Motia Khan. Secret information was received by the Inspector Gian Chand, then S. H. O. of Police Station Paharganj that the aforesaid accused would be collecting there Gian Chand alongwith the police party raided the spot at 8. 30 p. m. and they spotted in all seven persons sitting on a heap of stones in the midst of bushes. On seeing the police accused persons and their companions tried to escape but they were overpowered and apprehended.

( 4 ) APPELLANT, Des Raj was carrying a packet in red towel under his arm pit. It contained one Sabal (an iron rod with a pointed tip) Ex. P. 9, one iron cutting saw, Ex. P. 4, and one Kateera (iron cutter ). These articles were taken into possession by S. I. Shiv Narain vide Ex. Public Witness 7/a. The memo was attested by a public witness Ravinder Kumar, Public Witness 7 and Mohd Attique, Public Witness 8. On personal search one country- made pistol Ex. P. 1 was recovered from Des Raj. Besides that four small live cartridges Ex. P. 2/1-4 were recovered from right side pocket of the appellant s pant. Similarly other weapons were recovered from the other accused who were there.

( 5 ) DURING the course of investigation S. I. Shiv Narain sent ruka Ex. Public Witness 1/a at about 11. 15 p. m. for registration of a case under Section 399, IPC. Formal FIR No. 707 was registered on its basis. Later on S. I. Shiv Kumar, ASI Gurmal Singh, ASI Shiv Narain and S. I. Baldev Singh sent rukas Ex. Public Witness 1/c, Ex. Public Witness. 1/e, Ex. Public Witness 1/d and Ex. Public Witness 1/i on the basis of which formal FIRs 708, 709, 710 and 711 were recorded at 12. 30 a. m, 1. 15 am. , 2. 10 a. m. and 2. 40 a. m. respectively. After completion of the investigation all the accused and their companions were arrested and later on challaned.

( 6 ) THE prosecution examined ten witnesses. Police officials were examined alongwith the two independent witnesses. The prosecution evidence proved the case of the presence of the accused with weapons at the spot. All the three accused have totally denied the prosecution version and have urged that they were arrested by police from their respective houses and brought to the Police Station, Pahar Ganj. They have been falsely implicated in this case, as all of them belong to Sansi community, which is a criminal tribe.

( 7 ) DES Raj and Rambir accused have examined a witness each in defence. According to Asha Nand, DW 1 he knew Des Raj accused as being his neighbour at Kasturba Nagar and he used to ply cycle rickshaw at the relevant time. He heard noise at about 4 p. m. and he saw that Des Raj accused was being taken by the police to the police station despite protest by the former. According to Amar Singh, DW 2, Rambir @ Ranga was arrested from his house at 5 p. m. and was whisked away in police jeep. He later on learnt that the accused had been falsely involved in this case.

( 8 ) ACCORDING to the prosecution the dacoity was to be committed at Wazirpur/ashok Vihar near Deep Cinema and the accused were to board a truck whi

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