JUDGMENT
K. Jayachandra Reddy, J.
1. These two appeals arise out of the same judgment of the Allahabad High Court. Original Accused No. 6, Nasru and Jaipal Singh, Original Accused No. 7 are the appellants respectively. The alongwith eight others were- tried for offences punishable under Sections 399, 402, 147, 148 and 307/149 I.P.C. on the allegation that they were found making preparations to commit dacoity and when the police party surrounded them, they attached the members of the police party by firing shots at them. The trial court convicted Nasru, A-6, Jaipal Singh, A-7 and six others under Sections 399, 402 and 307/149 I.P.C. and sentenced each of them to undergo four years, three years and three years R.I, respectively. Nasru, A-6 alongwith six others was also convicted under Section 148 I.P.C. and Section 25(1)(a) of the Arms Act and each of them was sentenced to two years and one year R.I. respectively. Jaipal Singh, A-7 and two others were convicted under Section 147 I.P.C. and sentenced to one year’s R.I. Only two of them are before us.
2. One of the accused Ablu Gujar is a resident of Village alipur in District Muzaffarnagarand the other accused belong to different places. On the intervening night of 27th and 28th May, 1976 at about midnight, the police got information that these accused had assembled near a Tubewell in Village Hamzagarh for the purpose of committing dacoity at the house of one chanda after having made the necessary preparation. The information was recorded and Ved Prakash Sharma, the Station Officer Incharge of the Police Station requisitioned the police force from Police Station Nakur and at Bout 10.30 P.M. with sufficient force the raiding party got organised for apprehending the dacoits assembled near the tubewell and at about midnight, they reached the place. The party in three groups took positions and surrounded the miscreants and there was an exchange of fire and some of the miscreants escaped. In the encounter three dacoits were killed and some of them were arrested and they figured as accused.
3. The plea of the accused has been one of denial and they stated that they have been falsely implicated. Both the courts below relying on the evidence of the official witnesses convicted them.
4. Shri O.P. Rana, learned Counsel appearing for Jaipal Singh, A-7 submitted tha’ this accused belongs to the same place and it cannot be said that he was one of the dacoits and that at any rate, even according to the prosecution, he was only having a stick. So far Nasru, A-6 is concerned, the case of the prosecution is that he was in possession of an unlicensed fire-arm.
5. Having gone through the records, we do not find any material to show that whoever was found near the tubewell was there making preparations to commit dacoity. Both the appellants belong to the same Village namely Hamzagarh. It is not the case of the prosecution that these two appellants tired to attack the police party. So far A-7 is concerned, even according to the prosecution, he was only having a stick which villagers generally carry and so far Nasru, A-6 is concerned what all the prosecution has established is that an unlicensed fire-arm was recovered from him. For all these reasons we acquit Jaipal Singh, A-7 of all the charges and set aside the convictions and sentences awarded against him. Accordingly Criminal Appeal No. 407/82 filed by Jaipal Singh, A-7 is allowed.
6. So far A-6 is concerned, his conviction under Section 25(1)(a) is confirmed. The occurrence is said to have taken place in 1976 and A-6 is aged about 80 years. Therefore his sentence of one year’s R.I. is reduced to the period already undergone. The rest of the convictions and sentences awarded against him are set aside. Accordingly Criminal Appeal No. 135/84 filed by Nasru, A-6 is partly allowed.’