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2004 DIGILAW 1218 (ALL)

Chhotey Singh v. State

2004-07-07

K.N.OJHA

body2004
( 1 ) INSTANT appeal has been preferred against the order of conviction and sentence dated 7-8-1981 passed by learned sessions Judge, Farrukhabad, in Session trial No. 71 of 1980, by which the appellants Chhotey Singh, Vikram Singh, Madho, asghar, Roshan and Munna were convicted under Sections 399 and 402, I. P. C. and each one of them was sentenced to undergo 31/2 years R. I. under Sections 399 and 402, I. P. C. Vikram Singh and Roshan were further convicted under Section 25 (1) (a) Arms Act and were further sentenced to undergo 1 1/2 years r. I. It was directed that sentences would run concurrently. ( 2 ) HEARD learned counsel for the appellants and learned AGA and having gone through the record. ( 3 ) IT was reported by the C. J. M. Farrukhabad, vide letter No. 100 dated 23-8-2003 that the appellants Vikram Singh, asghar and Roshan have expired, hence order was passed by this Court that the appeal filed by them stood abated. ( 4 ) ACCORDING to prosecution Brikesh singh, the then Station Officer, police station Rajepur, district Farrukhabad, was Informed by some one in the night of 17/18-9-1978 about 8. 30 p. m. that some miscreants were planning to commit dacoity at the residence of one Ram Gopal of village hariharpur and before committing dacoity they would assemble in the grove of Khannu ahir of village Mohaddipur. On this information, he sent, two constables at the residence of Ram Gopal for his safety and along with other police officials he proceeded for the spot, where police party reached at 9. 30 p. m. Public witnesses Virendra Pal, Suresh singh and Brijpal Singh were also with them. The police party and the public witnesses were divided into three parties when at about 1. 30 a. m. In night 7 or 8 miscreants assembled and the Station Officer became confident that it was the gang of dacoits. He used very light postol and made exhortation. Dacoits started to run towards east side, out of which four miscreants Vikram Singh, madho, Roshan and Asghar were arrested. Country made pistol and cartridges were recovered from possession of Vikram Singh, madho and Roshan and one spear was recovered from possession of Asghar. The rest accused were successful in making their escape good, but they were seen in the light of torches and of very light gun. Country made pistol and cartridges were recovered from possession of Vikram Singh, madho and Roshan and one spear was recovered from possession of Asghar. The rest accused were successful in making their escape good, but they were seen in the light of torches and of very light gun. When they were arrested they faced identification parade. Chhotey Singh and Munna Singh appellants were recognized by four witnesses out of 10. ( 5 ) AFTER the case was committed to the court of Sessions the accused faced trial and impugned order or conviction and sentence was passed. ( 6 ) THE accused denied their participation in the crime and it was stated that they were arrested from their residences and were falsely involved in the crime. ( 7 ) IN this case it is said that dacoity was to be committed at the residence of Ram gopal and two constables were sent for protection of his family members and his properties, but Ram Gopal has not been examined, who would have made it clear that really police party had taken site and after use of very light gun, the accused were arrested and two constables visited at his residence. Withholding the witness Ram Gopal raises an adverse inference against the prosecution. ( 8 ) ONLY two eye-witnesses have been examined in this case, they are said to be present on the spot. Both of them are police witnesses. They are PW 1 Brikesh Singh and pw 2 Madho Singh. Even though it is said that three public witnesses were called for to participate in apprehending the police, but none of these three public witnesses namely Virendra Pal, Suresh Singh and brijpal Singh has been examined by the prosecution. If really information was given to the Station Officer and on this information he along with police party proceeded for the spot and also called for three public witnesses, examination of at least one or two public witnesses was necessary, which would have corroborated the statement of the police witnesses. If really information was given to the Station Officer and on this information he along with police party proceeded for the spot and also called for three public witnesses, examination of at least one or two public witnesses was necessary, which would have corroborated the statement of the police witnesses. ( 9 ) THE learned Sessions Judge has observed that the police witnesses cannot be disbelieved, but if the Station Officer states that he called for police personnel and public witnesses, went to the spot, divided into three parties, it is natural that the police official will be interested in success of the case, therefore, examination of public witnesses was necessary and on this material point the prosecution case suffers. ( 10 ) IT has been submitted by the learned counsel for the appellant that when very light gun was used by the Station Officer, the accused Chhotey Singh and Munna Singh were seen running away in the light of torches and of very light gun, but it does not appear natural that the police officials, who were chasing the miscreants and were interested in getting the miscreants arrested were at the same time attentive in recognizing the accused, who were running away and were successful in making their escape good. Thus on this basis the statement of police officials, it cannot be believed that they arrested four appellants and at the same time were successful in seeing the rest two appellants, who were runing away. ( 11 ) IT is the case of the prosecution that station Officer of police station Rajepur, district Farrukhabad, was informed that there was plan of dacoity being committed at the residence of Ram Gopal. Having this information, he along with other police personnel armed with fire arms went to the spot, took side, made challenges and used very light gun. It is also the case of the prosecution that the miscreants, who assembled there were also armed with deadly weapons, but when challenge was made by the police party four of them surrendered and could not run away and rest were successful in making their escape good, but no witness has stated that miscreants fired. It is also the case of the prosecution that the miscreants, who assembled there were also armed with deadly weapons, but when challenge was made by the police party four of them surrendered and could not run away and rest were successful in making their escape good, but no witness has stated that miscreants fired. If 7 or 8 persons, who are criminals, assembled at a place for committing dacoity, it cannot be believed that no injury could take place on either side and four of the miscreants were arrested, firearms and cartridges were recovered from their possession. ( 12 ) IN this case considering the attention of the police officials while apprehending the accused persons and at the same time having watch over the miscreants, who were running away for making their escape good cannot be accepted. ( 13 ) THE occurrence is said to have taken place in the night of 17/18-9-1978 and identification parade was conducted on 9-11-1978. Thus the identification parade was conducted after 51 days of the occurrence. There is long gap between the time when the occurrence is said to have taken place and the identification parade was got done. In these circumstances on the basis of identification the conviction of appellants chhotey Singh and Munna Singh cannot be sustained. ( 14 ) IN view of the infirmities in the prosecution evidence, as mentioned above, the order of conviction and sentence passed against the appellants under Sections 399 and 402, I. P. C. and Section 25 Arms Act cannot be sustained and the prosecution story, as is put up before the Court cannot be believed. ( 15 ) THE appeal is allowed. The impugned order of conviction and sentence dated 7-8-1981 passed under Sections 399 and 402, i. P. C. against the appellants Chhotey Singh, madho and Munna Singh are set aside. The order of conviction and sentence under Section 25 (l) (a) of Arms Act against appellant madho is also set aside. The appellants chhotey Singh, Madho and Munna Singh are on bail. They need not surrender. Their sureties are discharged. The coercive process issued against appellant Munna Singh for compelling his attendance before this court is recalled. Appeal allowed. . .