STATE OF UTTAR PRADESH v. KALI RAM — 1984 DIGILAW 660 (ALL)

R. B. LAL, J. ( 1 ) THIS appeal by State of U. P. under section 378 Cr. P. C. is directed against the judgment and order of Additional District and Sessions Judge, Bijnor dated 19. 2. 77. acquitting the accused respondent of an offence under section 412 I. P. C. ( 2 ) ON the night between 20th and 21st November, 1974 a dacoity was committed at the house of Punna Singh in village Peeli Bahar within police station Shiampur, District Bijnor. The dacoits, inter alia looted a licenced l2bore-single-barrel gun no. 1162 belonging to Punna Singh On 1/2/1975 Shri Bheem Sen. Station Officer, Police Station Shiampur (P. W.-17) received information that Kali Ram, resident of Tanda Bhagpat would come to jungle across the river Ganga carrying the gun looted in the dacoity of village Peeli Bahar. The station officer made a note of this information in the general diary at 5 P. M. and proceeded to arrest Kali Ram. On the way, from the tea stall of Bhagwat, he picked up two public witnesses namely, Bakhshish Singh (P. W. 11) and Mohan Singh (P. W.-16 ). The party went to an island which lay across the river Ganga and the Pili Nadi and hid itself. About 10 and 12 minutes later, i. e. at about 5. 45 P. M. two persons came to the island. One of them was carrying a gun: The party challenged those persons and managed to arrest the one who was carrying the gun. He was Kali Ram, the present accused-respondent. The gun was found to be the gun which had been looted from the house of Punna Singh. Five live cartridges were recovered from the right pocket of the coat of Kali Ram. The usual Fard was prepared and the article) were sealed. ( 3 ) AFTER completing investigation the Police submitted chargesheet against Kali Ram. ( 4 ) KALI Ram denied his arrest in the manner alleged by the prosecution and also denied recovery of gun and cartridges from his possession. He contended that he was arrested from his house. He examined one witness Chura Singh (D. W. 3) to prove this. ( 5 ) THE learned trial Judge considered the evidence adduced against the accused respondent and did not find it worthy of belief. He took the view that the witnesses were under the influence of the Police. He contended that he was arrested from his house. He examined one witness Chura Singh (D. W. 3) to prove this. ( 5 ) THE learned trial Judge considered the evidence adduced against the accused respondent and did not find it worthy of belief. He took the view that the witnesses were under the influence of the Police. He, therefore, acquitted Kali Ram. Here it may be added that one Chhotu who said to have taken part in the commission of dacoity at the house of Punna Singh was also tried for an offence under section 395 I. P. C. along with Kali Ram. ( 6 ) THE Government has not felt satisfied by the acquittal of Kali Ram and hence this appeal. ( 7 ) WE have heard the learned Assistant Government Advocate and the learned counsel for the accused-respondent. On a previous date when we took up this case for hearing it appeared that Kali Ram was also separately prosecuted for an offence under section 25, Arms Act for being found in possession of the gun and ammunition. We, therefore, directed the learned counsel for the accused-respondent to produce the judgment of that case if the same had been decided. Today, the learned counsel for the accused-respondent has produced a certified copy of the judgment in criminal case no. 414 of 1982, State v. Kali Ram under section 25, Arms Act, P. S. Shiampur decided by Munsif Magistrate 1st Class Bijnor on 15/7/82. This judgment shows that the accused Kali Ram was acquitted. There were two reasons for accquittal. First that Kali Ram had been acquitted of the charge under section 412 I. P. C. by the court of session. The Magistrate did not say so in many words yet it appears that he applied the rule of issue estoppel. Second that the prosecution had produced only two witnesses in suppose of its case and had not produced the remaining evidence and therefore, an ad verse inference could be drawn against it under the provisions of Section 114 illustration (g) of the Evidence Act. 10 the passing, the Magistrate referred to a contradiction occurring in the statement of Bakhshish Singh (P. W.-2) of that case. The directions of the coming and running of the accused given by this witness were not consistent with the directions shown in the Site plan. 10 the passing, the Magistrate referred to a contradiction occurring in the statement of Bakhshish Singh (P. W.-2) of that case. The directions of the coming and running of the accused given by this witness were not consistent with the directions shown in the Site plan. It does not appear that the State filed any appeal against the order of acquittal in the case under section 25, Arms Act. We would like to make only one observation with regard to the judgment of the learned Magistrate. He could use the site-plan to contradict Bakhshish Singh (P. W. 2) if it had been established on the record that the directions of the coming and running of the accused shown in the site plan by the Investigating Officer were mentioned at the nishandehi of the witness. This aspect is not very clear from the judgment. ( 8 ) THE rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding would constitute a estoppel or res judicata against the prosecution not as bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of the evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which may be permitted by the terms of Section 300 (2) Cr. P. C. (corresponding to Section 403 (2) Cr. P. C. (old ). The rule only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial (see A. I. R. 1965 S. C. 8. 7 Manipur Administration v. Beera Singh), These requirements of the rule of issue estoppel are not satisfied in the case of the judgment of accquittal dated 15/7/82. recorded by the Magistrate. There is no finding of fact in that judgment which may attract the application of the rule of issue estoppel. 7 Manipur Administration v. Beera Singh), These requirements of the rule of issue estoppel are not satisfied in the case of the judgment of accquittal dated 15/7/82. recorded by the Magistrate. There is no finding of fact in that judgment which may attract the application of the rule of issue estoppel. That judgment itself applied the rule of issue estoppel on the strength of the order of acquittal dated 19/2/77 which is the subject matter of the present Government Appeal. Hence that judgment cannot help the accused-respondent. ( 9 ) WE proceed to consider the Government Appeal on merits. ( 10 ) THREE witnesses namely Bakhshish Singh (P. W. 11) Mohan Singh (P. W. 16) and Station Officer Bhim Sen (P. W. 17) were examined to prove the case against the accused respondent Bhim Sen supported the prosecution case as set out earlier. Bakhshish Singh and Mohan Singh both are residents of village Gandi Khadar and stated that Tit about 5 P. M. they were taking tea at the shop of Bhagwat. The Police collected them from there as it had to arrest a person carrying. a gun. These witnesses also supported the prosecution case. ( 11 ) THE learned trial Judge found that there were material contradictions between the public witnesses regarding the route by which the accused had come to the place of arrest Bakhshish Singh had no idea of the site and gave wrong directions of the flow of rivers Ganga and Pili Nadi. The two public witnesses of recovery were of a distant village and were not residents of a nearby village-Admittedly, Mohan Singh (P. W. 16) was a Thekedar of liquor and used to visit the Police Station and as such be was not an in dependent witness. These reasons are well founded and borne out by the material on the record. To these reasons we may add that Bhim Sen admitted that be knew both the Sardars (P. Ws. 11 and 16) from before. The place of arrest was two miles away from the shop of Bbagwat. Taking such witnesses atone, itself is a suspicious circumstance. The defence suggestion against the two public witnesses was they used to distil illicit liquor and were, therefore under the influence of the Police. This suggestion was denied by both of them. 11 and 16) from before. The place of arrest was two miles away from the shop of Bbagwat. Taking such witnesses atone, itself is a suspicious circumstance. The defence suggestion against the two public witnesses was they used to distil illicit liquor and were, therefore under the influence of the Police. This suggestion was denied by both of them. Mohan expressed ignorance about the fact whether Sardar residents of his village distilled or did not distil illicit liquor having carefully considered all the facts and circumstances of the case, we also feel that two public witness are not worthy of reliance. The testimony of the Station Officer Bhim Sen too does not deserve credence in these circumstances. ( 12 ) THE learned trial Judge observed that there was no evidence that the accused knew that the gun was looted property and had retained it dishonestly knowing it to be such property. While making this observation, the learned trial Judge did not give any reasons. This observation without anything more cannot be said to represent the correct legal position. In most of the cases direct evidence of guilty knowledge is not likely to be available and the same has to be incurred from the facts and. circumstances of each case. In an appropriate case a presumption may be raised about such knowledge. The nature of the property recovered the lapse of time after which the recovery took place, the explanation if any offered by the accused for possession may be relevant factors in arriving at finding regarding the requisite knowledge of the accused. There may be other circumstances as well. Gun is not an ordinary article, it can be kept by a person on or after obtaining a licence from Competent authority. If a grin looted during commission of dacoity, is recovered from the possession of an accused it is for him to explain as to how he had come by it. In the absence of any satisfactory explanation the very fact of possession of gun, even after an interval of a few months may justify raising a presumption that the accused was dishonestly retaining possession of the gun knowing that it was looted property. ( 13 ) IN the instant case, the prosecution had proved that the gun recovered from the possession of Kali Ram.-accused-respondent was looted from the house of Punna Singh during the commission of dacoity. ( 13 ) IN the instant case, the prosecution had proved that the gun recovered from the possession of Kali Ram.-accused-respondent was looted from the house of Punna Singh during the commission of dacoity. This fact was not challenged by the accused-respondent. In this case, we find that there is one circumstance in the prosecution evidence which though Dot admitted by the accused, may go to explain the want of requisite knowledge on his part. Bakhshish- Singh stated that as soon as Kali Ram was arrested he gave out his name and also said that a relation of his had given him this gun. The Station Officer had received information that Kali Ram would come to that particular island for Shikar. Kali Rams Own stand was that he was falsely implicated in this case because. his brother was suspected of committing the particular dacoity. In these circumstances a reasonable doubt could arise as to whether the accused had or did not have the requisite knowledge in respect of the gun. For the above reasons, the acquittal of the accused-respondent does not deserve to be interfered. ( 14 ) ACQUITTAL upheld .