The central legal point established in the judgment is that for conviction under Section 395 IPC, the involvement of five or more persons is necessary, as per the definition of dacoity in Section 391 IPC.

JUDGMENT :

1. The present criminal appeal has been preferred under Section 374 Cr.P.C. by Rama Shanker son of Ram Soorat and Asghar son of Akbar Ali against the judgment and order dated 25.08.1982 passed by 5th Additional District and Sessions Judge, Ghaziabad in Sessions Trial No. 204 of 1981 convicting and sentencing the appellants under Section 395 IPC to five years rigorous imprisonment along with fine of Rs. 2,000/-each and in default of payment of fine, six months further rigorous imprisonment. The trial court has given the set off to the accused under Section 428 Cr.P.C.

The appellant no.1/Rama Shanker was acquitted of the charges levelled against him under Section 397 IPC and Section 25/4 of the Arms Act. The appellant no.2/Asghar was acquitted of the charges levelled against him under Sections 397 and 412 IPC.

2. The First Information Report of the present case was lodged on 26.02.1981 at about 10:05 pm at Police Station Sihani Gate, District Ghaziabad by Gyan Chand PW-1 who gave Tehrir which is Exb: Ka-1 for the same.

3. The First Information Report was lodged as Case Crime No. 114 of 1981, under Section 395 IPC against Rama Shanker, Santram, Nanhey, Hari Shanker, Asghar, Yunus and Bhagat Majdoor and Asghar and Case Crime No. 115 of 1981, under Section 25/4 of the Arms Act against Rama Shanker stating therein that the first informant is an Accountant in Sri Prabhu Dayal Singh & Sons Adhti. The material of the firm used to go to Delhi for which he used to go to take money on Thursday. On 26.02.1981, he relised Rs. 86,500/-from Delhi Sharda Nand Market Paharganj Sabji Mandi and had come to Ghaziabad on train. At about 09:00 pm as soon as he reached near the house of Prabhu Dayal Singh in Mohallah Mukund Nagar, House No. 241, around 150 yards away from the said place, seven persons came, from whom, one person put a knife on his neck and the packet from his hand containing Rs. 86,500/-was snatched forcibly. He raised a shout on which Surjeet Singh, Jodh Singh, Jogendra Singh, Sukh Dayal Singh and many other persons reached the place. All the persons collectively apprehended one miscreant along with a knife but the other persons ran away along with money who have been identified by them in the light of electricity present in the lane who can be identified if brought before him. A person was apprehended who disclosed his name as Rama Shanker. He further discloses the names of his companions who ran away as Santram, Nanhey, Hari Shanker, Asghar, Yunus and Bhagat Singh Majdoor and stated that they all are labourers in Delhi. The First Information Report be thus lodged. A person apprehended along with a knife has been brought to the Police Station. Tilak Ram Verma is the scribe of the said First Information Report.

4. G.D. No. 53 dated 26.02.1981 Police Station Sihani Gate, District Ghaziabad was transcribed at about 22:05 hrs with regards to the apprehended accused. Since, he was apprehended along with a knife, a First Information Report was lodged under the Arms Act simultaneously. The said G.D. entry is Exb: Ka-7 to the records.

5. A recovery memo of the alleged recovered knife was prepared on 26.02.1981 by Tilak Ram Verma Head Constable of which Prabhu Dayal Singh, Jodh Singh, Jogendra Singh and Gyan Chand were the witnesses. The same is Exb: Ka-2 to the records.

6. Further, on 05.03.1981 accused Asghar was taken for recovery and it is alleged that the some currency notes wrapped in a polythene, were got recovered on his pointing out from a pit in the field of Hasib son of Durjan. The said alleged recovered notes were 3 notes of Rs. 100/-, 2 notes of Rs. 50/-, 33 notes of Rs. 20/-, 139 notes of Rs. 10/-, 106 notes of Rs. 5/-and 60 notes of Rs. 2/-thereby aggregating to Rs. 3,100/-. A recovery memo to the same was prepared by Constable 731 Deep Narayan Tiwari which is Exb: Ka-3 to the records. The witnesses to the said recovery were Raghunath Singh S.H.O., Gauri Shanker of village Benipur, P.S. Mankapur, District Gonda, J.P. Sing