MEHROTRA J.

( 1 ) GHISSU, Mohar Singh, Janak Singh, Ranicharan, Pemraj and Baburam were tried by the learned Additional Sessions Judge of Budaun under Section 399, I. P. C. In the alternative they all but Mohar Singh were further charged under Section 402, I. P. C. Baburam, Ghissu Khan and janak were further charged under Section 19/20 (f), Arms Act and accused Mohar Singh was further charged under Section 19 (f), Arms Act. The learned Additional Sessions Judge acquitted all the accused under Section 399 or 402, I. P. C. He, however, convicted Janak Singh, Ghissu Khan and Baburam under Section 19/20 (f) of the Arms Act and sentenced them to three years R. I 2 1/2 years R. I. and 2 years R. I. respectively. The three accused who have been convicted under Section 19/20 (f), Arms Act have filed an appeal to this Court against their convictions which is numbered Criminal Appeal no. 754 of 1952. The State has filed an appeal against Ghissu Khan, Janak Singh, Ramcharan, pemraj and Baburam against their acquittal.

( 2 ) THE prosecution case is that on 16-10-1951, one Phullan Shah who is a prosecuting witness was going from his village Jagat to his father-in-laws place in village Chandernagar Kharer. In the way at about 11 a. m. he met the accused Baburam, Ghissu and Mohar Singh (who has been acquitted by the Sessions Judge and there is no appeal against him) in a grove in village budhwai. Phullan Shah inquired from them as to where they were going. The accused Baburam thereupon told him that next day they were going to commit a dacoity at the house of one Piarelal in village Shanti Nagla close to railway station Kachla Ghat: thereupon, Baburam asked the witness Phullan Shah if he would also accompany them. Phullan shah then inquired from him about the time of their departure and was told that all would leave by 2-30 p. m. train from Budaun for Kachla Ghat. Phullan Shah then left them and promised that he would join them at Budaun railway station. Next day he returned from his father-in-laws place and informed the Circle Inspector, mohammad Ismail Khan, at Budaun about the talk which he had with Baburam. The Circle inspector produced Phullan Shah before Sri Singhal, the Deputy Superintendent of Police. They then came to Sher Ali Khan who was then in charge Superintendent of Police. Phullan Shah narrated the whole talk, which he had with Baburam, to the Superintendent of Police. He was then directed to proceed by train with the gang and was told that the police party would meet him at Kachla Ghat Railway Station. When the train would reach the station he would be waiving his hand from outside the window pointing out the compartment in which the dacoits would be travelling. Phullan Shah complied with the instructions and joined them at the appointed station as arranged before. The police party consisting of the in charge Superintendent of Police, the Deputy Superintendent of Police, the Circle Inspector and some ten or 15 constables left in a truck and a pick up. On reaching Kachla, the Circle Inspector called Raghunandan Prasad, Nawab Singh and narottam Singh witnesses and then all proceeded to the railway station. The Station Master was informed and was asked to detain the train. When the train reached Kachla Ghat at 3-30 p. m. , Phullan Shah, as arranged, waived his hand and the compartment was then surrounded by the police and, on being pointed out by Phullan Shah, all the five opposite parties in the Government Appeal were arrested. They were taken down to the platform and in the presence of Nawab Singh, Raghunandan Prasad, Narottam Singh, Station master, the Deputy Superintendent of Police and in charge Superintendent of Police their persons were searched. Inside the folds of Janak Singhs dhoti a tamancha containing live cartridges was recovered. In the pocket of Baburam were found three live cartridges tied in a piece of cloth and in the folds of ghissu Khans dhoti was thrust and, concealed one spearhead. Nothing incriminating wa