JUDGMENT P.N. Goel 1. THE six appellants have been convicted under Sections 399 and 402 IPC. Nasru, Mahendra and Qurban appellants have further been convicted under Section 25 Arms Act. 2. ISLAM appellant is resident of village Akbarpur within police station Fatehpur, district Saharanpur. Ali Sher appellant is resident of village Nawada. Mahendra appellant is resident of Village Budhkhara. Both these Villages are within police station Beharigarh, district Sharanpur. Yasin appellant is resident of Village Barheri, police station Roorki, district Saharapur. Nasru and Qurban appellants are residents of village Sikandrapur, within police station Fatehpur, district Saharanpur. The case of the prosecution against the appellants may be indicated at some length. On 28-6-1974 an informer informed Satpal Singh, Station Officer, police station Fatehpur (PW 1) that a gang of bad characters would commit dacoity on the night intervening 28th and 29th June, 1974 at the house of Phaggan Mukhia in village Mandey Bans within police station Fatehpur and that for that purpose they would gather in a room close to the Bhatta of one Bhatia within the limits of adjoining village Harora. On getting this information Satpal Singh not only collected police force from his police station but also attempted to collect police force from police station Beharigarh by giving a telephonic message. Police Station Beharigarh is 10- 12 miles from police station Fatehpur. G. L. Bandhu, Station Officer police station Beharigarh along with Chaman Singh SI (PW 3) and some constables immediately started and reached police station Fatehpur. Then the police party left police station Fatehpur in a government jeep and a private bus. Village Harora is 6 miles from the police station. The police party, however, stopped at a culvert about 4 miles from the police station. Satpal Singh then sent for Head Constable Khazan Singh from police out post Gagal Heri which is 2 miles from the culvert. After the arrival of Khazan Singh, he along with three constables was sent to the house of Phaggan Mukhia. Some constables were sent to villages Harora and Mandey Bans to bring witnesses of the public. These constables brought Mohammad Hasan (PW 4) and two other persons from Mandey Bans and Ismail (PW 5) and two other persons from village Harora. Thereafter Satpal Singh made two parties. One party was headed by him and the other party was headed by G. L. Bandhu. These constables brought Mohammad Hasan (PW 4) and two other persons from Mandey Bans and Ismail (PW 5) and two other persons from village Harora. Thereafter Satpal Singh made two parties. One party was headed by him and the other party was headed by G. L. Bandhu. The party of Satpal Singh was to take position to the north of the Kotha in which the dacoits were reported to have assembled. The party of G. L. Bandhu was to take position to the south of the said Kotha. Personal searches were taken at the culvert. Then the parties proceeded from the culvert and took positions in accordance with the direction of Satpal Singh. There is a window in the western wall of the Kotha. This Kotha faces east. Through the window the police party could see some parsons smoking biris inside the Kotha. After the parses had taken positions and the dacoits were heard saying that Jaichand had not come, that sufficient time had elapsed and that they had sufficient weapons, very light pistols were fired from the side of both the parties. Upon this all the bad characters took to their heels and came out of the entrance door of the room. Both the parties immediately rushed and caught hold of all the bad characters, six in number, the present appellants, just outside the Kotha. 3. ON personal search, a lathi and a torch were found with Islam. Ali Sher and Nasru had a spear each. Mahendra had a pistol and 6 live cartridges. Qurban also had a pistol and 4 Jive cartridges. Nasru had a single barrel gun with 2 small plastic phials containing gun powder. Mahendra, Nasru and Qurban did not hold a licence to possess the said firearms The appellants and the recovered articles were taken to police station Fatehpur where Satpal Singh got report written on 29-6-1974 at 5 A. M. 4. DEFENCE of the appellants was that they were not arrested at the time and place alleged by the prosecution and that they were arrested from their houses. Yasin appellant stated that he was a rickshaw driver and he was arrested from village Bhagwanpur. Qurban and Islam appellants asserted that they were arrested on 25-6-1974. Nasru appellant asserted that the police was inimical to him, that he was falsely implicated in two cases-one of dacoity and another of murder in which he was acquitted. Yasin appellant stated that he was a rickshaw driver and he was arrested from village Bhagwanpur. Qurban and Islam appellants asserted that they were arrested on 25-6-1974. Nasru appellant asserted that the police was inimical to him, that he was falsely implicated in two cases-one of dacoity and another of murder in which he was acquitted. At this stage it may be indicated that Satpal Singh admitted that Nasru was acquitted in a case of dacoity and that he was also acquitted in a murder case relating to his police station. Thus the assertion of Nasru is admitted to Satpal Singh. 5. ALI Sher appellant asserted that his younger brother Maqsood was involved in a dacoity case, that he used to do pairvi in the said case, that the station officer threatened him and that he had been falsely implicated in this case on account of enmity. 6. IT may be pointed out here that Satpal Singh stated that he did not know if Maqsood was brother of Ali Sher, that he did not know if Maqsood was involved in a case under Sections 399 and 402 IPC of his police station, that he did not know if a criminal case under Sections 399/402 IPC proceeded against Maqsood in the court of Sri B. B. L. Hajeley, Sessions Judge and that he did not remember if he used to come in pairvi of the said case. The non-committal replies of Satpal Singh lend strength to the assertion of Ali Sher. To prove its case the prosecution examined four witnesses-Satpal Singh, Chaman Singh, Mohammad Hasan and Ismail. On the other side Mahendra examined Rajendra Singh and Sukhvir Singh (D. Ws. 1 and 4) to show that he was arrested from his village on 28-6 -74. Ali Sher examined Amir Hasan (DW 2) to prove that he was arrested from his house. Rafiq, father of Qurban has entered into the witness box as D. W. 3. He deposed that his son was taken away from his house and that he then gave an application to SDM Roorki on 25-6-1974. 7. THE VI Additional Sessions Judge Saharanpur, on an appraisal of the evidence of both the sides, concluded that reliance could be placed on the testimony of the prosecution witnesses and that reliance could not be placed on the testimony of the defence witnesses. 8. 7. THE VI Additional Sessions Judge Saharanpur, on an appraisal of the evidence of both the sides, concluded that reliance could be placed on the testimony of the prosecution witnesses and that reliance could not be placed on the testimony of the defence witnesses. 8. THE learned counsel for the parties have been heard. THE learned counsel for the appellants Ali Sher and Mahendra has read over the statements of the prosecution witnesses. A careful analysis of the statements of these witnesses, creates a doubt as to the prosecution version. This doubt arises because of certain broad circumstances appearing in the case. They are: (1) Satpal Singh prepared recovery memos Exs. Ka 4 and Ka 6 at the place of occurrence in respect of the articles recovered from Quarban and Nasru. These memos admittedly bear the signature of G. L. Bandhu, Station Officer, police station Beharigarh. Satpal Singh has admitted that there is over-writing in the date below the signature of G. L. Bandhu. These memos have been perused. It appears that G. L. Bandhu first of all wrote figure "3". This figure was over written and then figure "29" was written to show that G. L. Bandhu signed on the memos on 29-6-1974. The prosecution has not examined G. L. Bandhu. He was the best person to explain as to why he had initially written "3". It appears that G. L. Bandhu signed on these memos on 30th June 1974. G. L. Bandhu was the best person to indicate as to why he intended to write "30" instead of "29". The fact, however, remains that G. L. Bandhu in all probability signed the memos on 30th June 1974. Later on, he corrected the date and wrote 29. This fact shows that G. L. Bandhu was not present at the time of occurrence. This conclusion goes a long way to show that the appellants were not arrested on the night intervening 28th and 29th June, 1974. (2) According to Satpal Singh the police party left police station Fatehpur at 11.30 P. M. in a government jeep and a private truck. In cross-examination he stated that the truck was of village Chhutmalpur. He knew the driver of this truck. He clearly stated that he sent a constable to bring the truck from Chhutmalpur. He has not disclosed the name of that constable. That constable has not been produced by the prosecution. In cross-examination he stated that the truck was of village Chhutmalpur. He knew the driver of this truck. He clearly stated that he sent a constable to bring the truck from Chhutmalpur. He has not disclosed the name of that constable. That constable has not been produced by the prosecution. Assuming for a moment that a constable was sent to Chhutmalpur to bring a truck, his departure must have been noted in the general diary of police station Fatehpur. But Satpal Singh admitted that there was no such entry in the general diary of police station Fatehpur. The statement of Satpal Singh is contradicted on this point by the testimony of Chaman Singh S. I. (PW 3). Chaman Singh stated that from police station Beharigarh the police force went to police station Fatehpur in a government jeep and a private truck. Both these vehicles took the police party from police station Fatehpur to the culvert near village Harora. According to Chaman Singh a truck was going from Dehradun to Chhutmalpur. It was this truck which was taken by the police of Beharigarh. He further stated that entry about trucks is made at police out-post Mond within police station Beharigarh. Thus this truck was arranged by the police of Beharigarh. In this way it is patent that Satpal Singh did not arrange for a truck through a constable. No entry of police out post Mond has been proved by the prosecution. The above facts create a doubt as to the use of a truck in the alleged raid. (3) The police of Beharigarh was informed on telephone of the proposed raid at 10-30 P. M. Obviously, the police personnel of Beharigarh had taken some time in collecting the force. The police force must have left Beharigarh at 10.45 P. M. Chaman Singh has admitted that he and his companions (Police officers) left police station Beharigarh at about 10.45 P. M. He stated that they reached police station Fatehpur at 11.15 P. M. It means that a jeep and a truck took half an hours time in covering a distance of 12 miles. According to Satpal Singh this jeep and truck took half an hours time in covering a distance of 4 miles from police station Fatehpur to the culvert of village Harora. According to Satpal Singh this jeep and truck took half an hours time in covering a distance of 4 miles from police station Fatehpur to the culvert of village Harora. If a jeep and a truck took half an hours time in covering a distance of 4 miles then they would have taken about one and a half hours time in covering the distance from police station Beharigarh to police station Fatehpur. Therefore, the police of Beharigarh could not reach Fatehpur at 11.15 P. M. In this connection it will be noticed that the jeep and the truck were left two furlongs before the culvert. This distance was covered on foot and the police personnel reached at the culvert at 12 o'Clock. Thereafter a constable was sent to bring Khazan Singh Head Constable from Gagal Heri police outpost which is two miles away. That constable, who had gone to call Khazan Singh, has not been produced. Khazan Singh has also not been produced. It lis said that Khazan Singh came up within 20 minutes. It is not known if he came on bicycle or on foot. If he came on foot he could not have covered a distance of 2 miles in 20 minutes. After the arrival of Khazan Singh he and some constables were sent to the house of Phaggan Mukhia for his safety. Phaggan Mukhia has not been examined. Khazan Singh and the constables who had been sent to the house of Phaggan Mukhia have not been examined. The version that Khazan Singh and some constables were sent to the house of Phaggan Mukhia for his safety does not seem to be correct. Some constables were sent to call some witnesses from villages Mandey Bans and Harora. These constables have not been examined. Mohammad Hasan and Ismail (P. Ws. 4 and 5) came ftrom Mandey Bans and Harora. These constables must have taken some time in going to Mandey Bans and Harora and contacting the villagers and then bringing the members of the public from these villages. After the witnesses of the public had come up personal searches were taken and Satpal Singh gave instructions and divided all the persons in two parties. All the above facts could not have taken place in an hour's time. After the witnesses of the public had come up personal searches were taken and Satpal Singh gave instructions and divided all the persons in two parties. All the above facts could not have taken place in an hour's time. Therefore, id is extremely doubtful that the six appellants were apprehended on the spot art 1 A. M. (3) Mohammad Hasan is an illiterate village shop keeper. Ismail is a village labourer. It is not difficult for the police to produce such witnesses in a case like the present one. (4) Satpal Singh had arranged the raid. He must be expecting that some bad characters must have been apprehended and some articles would be re-covered from their possession. Therefore, Ire must carry sealing articles from the police station. In case certain sealing articles were taken from the police station, entries must have been made in the records of the police station. Satpal Singh has admitted that no entry about the sealing articles was made in the general diary indicating his departure for the raid. The prosecution has not proved any other record to show that sealing articles were really taken by Satpal Singh. (5) It will be noticed that only six bad characters had gathered in the Kotha and all the six bad characters were arrested on the spot. No bad character could escape. Despite the firing of very light pistols, the three bad characters, who, according to the prosecution, had fire-arms, did not care to load their fire-arms, nor they fired any shot towards the police personnel. It means that six persons out of whom three had fire-arms allowed themselves to be tamely arrested by the police parties. This is quite unusual. 9. TAKING into consideration the above facts and circumstances together, it cannot be held that the prosecution had been able to establish its case beyond doubt. The arrest of the six appellants at the time and place of occurrence is highly doubtful and as such the conviction of the appellants cannot be sustained. 10. THE learned counsel for the appellants pointed out that a typed copy of the first information report was with Satpal Singh at the time when he was in the witness-box and that he gave statement on its basis. This typed copy is paper No. 15-B. It runs into four leaves. At the end, gist of the prosecution case is written in manuscript. This typed copy is paper No. 15-B. It runs into four leaves. At the end, gist of the prosecution case is written in manuscript. Satpal Singh filed it in compliance with the order of the trial court. The learned counsel for the appellants urged that the statement of Satpal Singh could not be acted upon.. He relied on the case of Zahiruddin v. Emperor, AIR 1947 PC 75. In this case the complainant gave a written statement during investigation. At the time of evidence he was refreshing his memory from the said statement. It was held that the evidence of such a witness was not admissible. The ratio of this case is not applicable to the present case for two reasons: (a) The complainant had already lodged a report with the police. The police could record his statement under Section 161 CrPC. The complainant, however, gave a statement in writing. Obviously, this statement was covered by Section 161 CrPC. A statement recorded under Section 161 CrPC is not admissible in evidence as laid down in Section 162 CrPC. But this is not the position in respect of a first information report lodged under Section 154 CrPC. A first information report can be proved by the prosecution. It can be used by the prosecution as a piece of corroborative evidence. (b) A statement under Section 161 CrPC cannot be used by the prosecution, nor the prosecution can prove it to corroborate the testimony of the person making the statement. Such a statement can only be used by the accused for the purposes of contradiction. But a first information report can be used by the prosecution also to corroborate the testimony of the person making it. In the present case Satpal Singh stated that for the purpose of bail he got a copy of the first information report lodged by him typed out. At the end gist of the first information report was given. Therefore, it is obvious that the copy of the first information report was not hit by the provisions of Section 162 CrPC. It was a document which the prosecution could prove and could make use of. 11. IN view of the above, the principle laid down in the above case has no application to the facts of the instant case. Therefore, the statement of Satpal Singh recorded by the Sessions Court cannot be discarded. 12. It was a document which the prosecution could prove and could make use of. 11. IN view of the above, the principle laid down in the above case has no application to the facts of the instant case. Therefore, the statement of Satpal Singh recorded by the Sessions Court cannot be discarded. 12. IN this connection reference may be made to Section 159 of the INdian Evidence Act. This section lays down that a witness can refresh his memory by reference to any document or its copy with the permission of the Court. This provision is subject to one condition and it is this that the document should have been made by the witness. IN the present case Satpal Singh was the maker of the first information report. Therefore, with the permission of the Court he could refresh his memory by seeing it. As Satpal Singh had not taken the permission of the Court, he was stopped from seeing the copy of the report. IN this way the matter came to an end. So far as the contention of the learned counsel for the appellants is concerned it is without substance. No other point was urged by the parties counsel. For what has been found above, all the four appeals have to be accepted. 13. ALL the four appeals are allowed and the conviction and sentence of all the appellants recorded by the VI Additional Sessions Judge, Saharanpur in Sessions Trial Nos. A-402, A-403, A-404 and A-405 of 1974 are set aside. The appellants Islam, Ali Sher, Mahendra, Yasin, Nasru and Qurban are acquitted of all the charges levelled against them. 14. THE appellants are on bail to which they shall not surrender. THEir bail bonds are discharged. Appeals allowed.