Conviction under Section 395 IPC requires involvement of five or more persons; prosecution's failure to prove guilt leads to acquittal when reasonable doubt exists.

JUDGMENT :

AVNISH SAXENA, J.

1. Heard Sri Mahesh Prasad Yadav, Sri Kamta Prasad, learned counsel appearing for appellant and learned A.G.A. for the State.

2. The present criminal appeal has been preferred by two appellants, namely, Ramphal s/o Sukh Ram and Dhuram s/o Baij Nath, under Section 374 CrPC, as they have been found guilty for offence under Section 395 IPC for which both the accused were directed to undergo rigorous imprisonment for a term of ten years. The accused-appellant Ramphal is further found guilty for offence under Section 397 IPC and sentenced to undergo rigorous imprisonment for three years. For the accused Ramphal, both the sentences were directed to run concurrently. This conviction and sentence has been recorded by the trial court (Special Sessions Judge, Jhansi) by judgment and sentence dated 24.04.1984 in Sessions Trial No.43 of 1977 (State Vs. Hindupat and others), arose out of Case Crime No.10 of 1975 and Case Crime No.11 of 1975 for offences under Sections 395, 397, 307 IPC and Section 25 of Arms Act, respectively, Police Station Garotha, District Jhansi.

3. The prosecution case is such that a police party consisting HC Jayatram A.P., C.A.P. Nathuram, C.A.P. Thakur Prasad and Constable Ram Kishan, who were posted for dacoity guard duty at village Tharro, when got a tip off at 11:30 a.m. on 19.01.1975 from Hardass, a village watchman of village Para that 8 to 9 miscreants extorting the passersby near Pearghata at Jhansi. Believing the tip off, the police party has taken Kalka Singh Thakur and Harju Gadaria from village Tharro and also taken the police persons from out post Kakarbai, namely, H.C. 759 C.P. Krishan Pal, C 456 Ram Awdhar, C 507 Mahabir Singh C and 898 Brindavan. They also took Nepal Singh, whom they met in the way to the place of incident Pearghata. The police persons reached the place of incident and saw that 9 persons were extorting passersby. They were seen equipped with one rifle, two SBBL gun, two country made pistols, three axes and one lathi and were spotted making personal search of two persons namely, Lakhan Singh of village Dhanora and Baldev Prasad Khare, a forest guard. The police party intercepted, one of the miscreants has raised alarm that the police has arrived, on which the miscreants have challenged the police persons and cross-firing begun. After indiscriminate firing on each other, the firing was stopped from the side of accused and two of the accused, namely, Ramphal and Dhuram have surrendered. Rest accused had sprinted away. The incident is of 19th January,1975 occurred at 12:30 p.m. The F.I.R. was registered the next date on 20th January,1975, at 12:15 p.m.

4. The memo of arrest and recovery (Exhibit Ka-1) disclosed that the two accused-appellants, namely, Dhuram s/o Baij Nath and Ramphal s/o Sukh Ram have surrendered before the police party and in their disclosure statements, the name of seven other accused has been mentioned in the memo, they are Hindupat Lodhi, Ramratan, Moolchand Nai, Tijua Teli, Halkua Chamar, Sukhainya Chamar, Ajuddi Chamar, who were stated to be present at the place of incident committing dacoity. It is further disclosed in the memo that Nandram Yadav of village Goti had called them to commit dacoity. From the personal search of Ramphal, the country made pistol 12 bore, two live and five empty cartridges as well as the booty was recovered; whereas from the personal search of Dhuram, jewellery and watch as booty had been recovered.

5. During the investigation, the identification parade of four accused, namely, Ramratan, Hindupat Lodhi, Ramp