Hon'ble Mrs. Vijay Lakshmi,J.

1. The present criminal appeal is preferred against the judgement and order dated 2.6.1982 passed by the IVth Additional Sessions Judge, Ghaziabad whereby the appellants have been convicted under Sections 399 and 402 I.P.C. and have been sentenced to undergo three years rigorous imprisonment for each offence. Both the sentences were directed to run concurrently.

2. Out of the three appellants, Shokat and Uttam expired during the pendency of the appeal, therefore, the appeal in respect of them stood abated. Now, the only surviving appellant is Zulfikar who is before this Court, challenging his conviction by the learned trial court.

3. Heard and perused the lower court's record.

4. The brief facts of the prosecution case are that in February, 1980 Sri Albel Singh (P.W.5) was posted as Inspector Incharge at P.S. Garh. At that time S.I. Yogesh Chand Sharma (P.W.1), S.S.I, N.L.Goswami (P.W.2) were also posted at the same police station. It was in the night between 20/21.2.1980 at about 12.42 that Inspector Albel Singh received a secret information by an informer that the gang of Shokat would assemble in a 'kothri' (small room) near Swami Mandir on Allahbux Pur road and would commit dacoity at 1.30 A.M. at the house of Lala Dhanumal Sarraf in Kasba Garh.

5. On receiving this information, inspector incharge Albel Singh, S.S.I. N.L.Goswami, S.I.Prem Pal, S.I. Daya Ram along with some other policemen formed a raiding party and proceeded to arrest the members of the gang after making relevant entries in the G.D. They also took with them the arms ammunition torches and other materials. Near Chopla Garh, S.I. Moti Ram Sharma and two constables all armed, also joined them. S.I. Yogesh Chand Sharma (P.W.1) alongwith constable Dharam Pal was on patrol duty in Kasba Garh. Inspector Albel Singh and his raiding party met them near police out post Garh and asked them to accompany and they also followed the raiding party. One Head Constable and two constables were sent to the House of Dhanumal Sarraf for his protection. S.I. Yogesh Chand Sharma was asked to procure public witnesses but despite attempts, no public witness could be procured as the night had advanced and there was not much time to be lost.

6. On reaching near the 'kothari', the police party tried to overhear the conversation, going on between the dacoits, sitting inside the 'kothari'. One of the dacoits said that it is right time for committing dacoity, that 'Bhedia' will be waiting for them, that they had enough arms and that they may proceed in order to commit dacoity. Another dacoit said that they should depart now. On hearing this conversation the police party became assured that they were the armed dacoits, who had assembled in order to commit dacoity. Inspector Albel Singh immediately flashed torch light at the door of the 'kothri' and challenged the dacoits. The dacoits came out of the 'kothri' and started running. They were about 6-7 or 8 in number. As soon as they came out from 'kothri', S.I. Prem Pal fired twice with V.L.P. which emanated sufficient light on the spot. Five dacoits were arrested on the spot at about 1.30 in the night. Two dacoits managed to escape. Out of the five arrested dacoits, three are the appellants Shokat, Zulfikar and Uttam.

7. Accused Shokat was found in possession of a DBBL English Gun (Ext.1) a belt containing cartridges (Ext.2) and a watch.

8. Accused Zulfikar was found in possession of a bag (Ext.12) containing a country made pistol (Ext.3), 4 live cartridges (Ext.4) and a torch (Ext.5).

9. Accused Uttam is said to have been found in possession of a bag (Ext.11) a country made pistol (Ext.6), 3 live cartridges (Ext.7) and a torch (Ext.8). The search of two other dacoits was also taken.

10. Charges under Sections 399, 402 I.P.C. and 27 Arms Act were framed against the appellants who pleaded not guilty and claimed to be tried.

11. The prosecution in order to prove its case produced as many as five witness