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2002 DIGILAW 1656 (ALL)

Amar Singh v. State of Uttar Pradesh

2002-11-12

M.C.JAIN

body2002
( 1 ) APPELLANTS Amar Singh, Kunwar Pal and Nawal Singh alias Kaluwa have preferred this appeal against the judgment and order dated 30/05/1981 passed by Sri R. N. Tiwari, VII Additional Sessions Judge, Aligarh in Sessions Trial No. 257 of 1980. All of them have been convicted under Ss. 399 and 402, IPC and sentenced to undergo five years rigorous imprisonment on each count. Appellants No. 2 and 3 Kunwar Pal and Nawal Singh alias Kaluwa have further been convicted under Section 25 Arms Act and each sentenced to rigorous imprisonment for two years. ( 2 ) THE case was that on 8-2-1977 S. I. Totaram P. W. 4 with Constables Mahendra Singh and Rajendra Singh was on patrol duty and reached near the culvert Bambi Tochhigarh at about 10. 45 p. m. There he met S. I. Sohan Pal Varshney along with four other constables, namely, Nem Singh, Misri Lal, Raj Singh and Ramesh. He gained information that a gang of dacoits would assemble at the Dharmshala on Hathras-Iglas road for committing dacoity at the house of Mukandi of Harramput. There being no village nearby, public witnesses could not be available. The police personnel searched each other and made sure that none had incriminating articles. Two parties were formed to nab the outlaws. One was headed by S. I. Tota Ram P. W. 4 consisting of Constables Rajendra, Mahendra and Raj Singh and the other one by S. I. Sohan Pal Varshney P. W. 1 with Constables Nem Singh, Misri Lal and Ramesh Chandra. Both the parties took position near Dharamshala at about 11. 15 p. m. The whispering of miscreants present inside the Dharamshala was heard and one of them was saying that Chhanga Ustad had not yet reached and it was useless to wait for him. He was further heard saying that he had seen the house of Mukandi Lal where dacoity was to be committed and as such they should proceed to complete the mission of committing dacoity. On such hearing S. I. Tota Ram P. W. 4 became confident about the presence of gang of dacoits. He challenged them and fired two VLP shots. About 6-7 bandits ran towards the south of Dharmshala. The police party chased them and caught hold of three of them (appellants) at a distance of 6-7 paces from the Dharmshala. They disclosed their names on being inquired. He challenged them and fired two VLP shots. About 6-7 bandits ran towards the south of Dharmshala. The police party chased them and caught hold of three of them (appellants) at a distance of 6-7 paces from the Dharmshala. They disclosed their names on being inquired. They also disclosed the names of run away dacoits. One SBBL gun (factorymade), five cartridges and certain other articles were recovered from Kunwar Pal whereas one countrymade pistol and three live cartridges were recovered from Nawal Singh alias Kaluwa, Phards were prepared and ultimately, the appellants were brought to police station where the FIR was lodged. Investigation followed which resulted in submission of chargesheet, ultimately culminating in the conviction of the three appellants as stated hereinabove. ( 3 ) THE defence was of denial and of false implication. ( 4 ) THE prosecution examined S. I. Sohan Pal Varshney P. W. 1 and S. I. Tota Ram PW. 4 as eye-witnesses who had headed the two police parties at the spot. Girish Chandra Sharma P. W. 2 had written the chick FIR at the dictation of S. I. Tota Ram P. W. 4 and had registered the case. The investigation was done by S. I. Ramadhian Singh P. W. 3. Believing the prosecution case and story, the trial Court passed the impugned judgment. ( 5 ) AT the hearing of the appeal none appeared from the side of appellants, though they are represented on record by Sri Mohan Chandra Advocate. I have heard learned A. G. A. from the side of the State in opposition of the appeal and examined the record including the evidence with his assistance. ( 6 ) I am of the opinion that in the present case, there are four strong factors which render the case against the appellants to be doubtful and wherefor they should be acquitted with the setting aside of the impugned judgment. ( 7 ) IT is first to be pointed out that there is no public witness in support of the prosecution case and the explanation is that there being no village nearby Dharamshala where the incident took place, no public witnesses could be available. ( 7 ) IT is first to be pointed out that there is no public witness in support of the prosecution case and the explanation is that there being no village nearby Dharamshala where the incident took place, no public witnesses could be available. I do not mean to say that as a matter of rule the prosecution version cannot be accepted unless supported by public witnesses, but what I wish to emphasis is that in the present case, other circumstances taken together with the absence of public witnesses, create reasonable doubt as to the happening as alleged by the prosecution. To say in other words, the absence of public witnesses in support of the prosecution version is not the sole or only reason creating a dent in the prosecution story. ( 8 ) SECONDLY, it is not digestible that the appellants and their associates would have been talking at such pitch of voice as to be clearly audible by the police party concealing nearby. It does not stand to reason that they would have been fools of such high order as to talk of their top secret in a manner to be clearly and easily heard by someone hiding or concealing nearby. In ordinary course, they would have first got assured of their safety by having a look around the place before talking of such secret. ( 9 ) THE third factor is that though two of the appellants, namely, Kunwar Pal and Nawal Singh alias Kaluwa were allegedly found in possession of arms and ammunitions but as per the case of the prosecution there was no exchange of fire. It is alleged that on opening of the two VLP shots by S. I. Tota Ram P. W. 4, the appellants with their associates took to their heels without resorting to any firing. It does not stand to reason. It was obviously a matter of arrest or escape for them. There could hardly be any point in their keeping arms and ammunitions if they did not intend to use the same, even when challenged. The conduct assigned to the appellants does not have attraction of logic. ( 10 ) LASTLY, though certain recovery of arms and ammunitions are said to have been made from the two appellants Kunwar Pal Singh and Nawal Singh alias Kaluwa but not a single penny was found with any of the three appellants. The conduct assigned to the appellants does not have attraction of logic. ( 10 ) LASTLY, though certain recovery of arms and ammunitions are said to have been made from the two appellants Kunwar Pal Singh and Nawal Singh alias Kaluwa but not a single penny was found with any of the three appellants. It bristles against natural probabilities that they would have been roaming about without a single penny with them in the hope of being successful by committing dacoity at the house of one Mukundi Lal. ( 11 ) I veer around the conclusion that the prosecution case as alleged and tried to be proved by the evidence before the trial Court does not stand a close scrutiny. the possibility of false implication of the appellants cannot be ruled out, though it is not necessary for the Court to speculate the reasons for the same. ( 12 ) IN the result, I allow the appeal and set aside the judgment and conviction passed against them. The appellants Amar Singh, Kumwar Pal and Nawal Singh alias Kaluwa are hereby acquitted. They are already on bail. The material exhibits shall be dealt with as directed by the trial Court. ( 13 ) LET a copy of this judgment along with record of the case be immediately sent to Court below for needful action and necessary entries in the relevant register under intimation to this court within one month. Appeal allowed. . .