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2012 DIGILAW 2549 (ALL)

SHIV KANT @ PAPPAN v. STATE OF U. P.

2012-11-01

RAMESH SINHA

body2012
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Aviral Saxena, learned Amicus Curiae appearing on behalf of the appellant and learned A.G.A. for the State. This criminal appeal has been filed against the judgment and order dated 20.3.1985 passed by VIII Additional Sessions Judge, Agra in Session Trial No. 573 of 1984 convicting and sentencing the appellant to undergo for two years rigorous imprisonment under Section 307 and one year rigorous imprisonment under Section 25/27 Arms Act. 2. The prosecution story in brief is that on 29.3.1983 at about 2:30 p.m. in Mohalla Masthan within the police circle Kotwali District Agra, accused Shiv Kant fired with his pistol at the police party. The first fire did not hit any one and it is further stated that the accused again fired but it missed the target and the accused was apprehended by the police and from his right hand a country made revolver with which he had fired, was recovered. The F.I.R. was lodged at the concerned police station and was registered by Head Constable Baboo Ram. A Chick F.I.R. which was written by Head Constable Baboo Ram has been marked as Ex. Ka-2. After investigation, charge-sheet was submitted against the accused under Section 307 I.P.C and 25/27 Arms Act have been framed against the accused. 3. The prosecution in order to prove its case, has examined P.W.1 Sri R.K.Sharma Police Sub Inspector, P.W.2 Tej Pal Singh Varma, Police Sub Inspector, P.W.3 Baljit Singh Police Sub Inspector In charge Kotwali and P.W.4 Ram Ratan Varma Sub Inspector of the I.O. of the case. 4. The accused has denied the allegations of the prosecution and has stated in his statement recorded under Section 313 Cr.P.C. that the police has falsely implicated him and the Police wanted his to give false evidence in a police cases and to become informant of the police, when he refused to oblige the police he was falsely implicated in this case. 5. P.W.1 Sri R.K. Sharma has stated before the trial Court that on 29.11.1983, he was posted as Sub Inspector at Police Station Kotwali. At the time of alleged occurrence, he was on patrol duty alongwith T.P. Varma (P.W.2), Inspector Baljit Singh (P.W.3) and other police persons. They were going in connection with investigation of the case under Section 457/380 I.P.C. This police party while proceeding from Bazar Maithan towards Gurdwara crossing. At the time of alleged occurrence, he was on patrol duty alongwith T.P. Varma (P.W.2), Inspector Baljit Singh (P.W.3) and other police persons. They were going in connection with investigation of the case under Section 457/380 I.P.C. This police party while proceeding from Bazar Maithan towards Gurdwara crossing. It is stated that the accused on seeing the police party turned back and tried to flee away. The said conduct of the accused arose suspicion in the mind of the police party which chased him when police party chased him, the accused took out the revolver from the pocket of his pant and while fleeing away, he fired at the Police Party. First shot did not hurt any body and thereafter, the accused fired again but it also missed the target and ultimately accused was apprehended near the B.P. Oil Mill and from his possession a revolver was recovered. This revolver was of 5 rounds. An empty used cartridge and one missed cartridge and 3 live cartridges were found in his revolver. The cash of Rs. 17/- was also recovered. P.W.1 has proved the recovery memo Ex. Ka. 1 revolver material Ext. 1, empty used cartridge Ext.2, one missed cartridge Ex. 3, and 3 live cartridge Ext. 4 to 6. This witness had further written out the recovery memo on the dictation of Inspector Baljit Singh (P.W. 3). He has further stated that the accused was brought to the police station and the case was registered by Head Constable Baboo Ram. A check report of the F.I.R. Ex. Ka-2 which was written by Head Constable Banoo Ram, has been proved by this witness. P.W. 2 S.I. T.P. Varma has also narrated the same prosecution story. He has also proved his signature on the recovery memo Ext. Ka-1. P.W. 3 Baljit Singh Inspector Kotwali has also narrated the same prosecution story as stated by P.W. Nos. 1 and 2. He has proved the copy of the G.D. entry Ex. Ka- 3 regarding registration of the case and the copy of the G.D. entry Ex. Ka-4 regarding the proceedings of the police partyfrom the police station. P.W. 4 Ram Ratan Verma, S.I. has investigated the case and submitted charge-sheet against the applicant which is marked as Ex.6 and also obtain the sanction of the prosecution of the accused under Section 25/27 Arms Act which is marked as Ex. Ka.7. Ka-4 regarding the proceedings of the police partyfrom the police station. P.W. 4 Ram Ratan Verma, S.I. has investigated the case and submitted charge-sheet against the applicant which is marked as Ex.6 and also obtain the sanction of the prosecution of the accused under Section 25/27 Arms Act which is marked as Ex. Ka.7. He has also proved the site plan Ex. Ka.5 and charge-sheets Ex. Ka. 6 and 7. 6. Sri Aviral Saxena, learned Amicus Curiae has argued that admittedly, the present case is of no injury and the categorical case of the prosecution is that the applicant fired with his country made pistol at the police party twice but it missed the target which shows the false implication of the appellant by the police but could not corroborate the prosecution story as stated by it and in order to give serious colour to the present incident had falsely shown the recovery of a country made revolver from the possession of the appellant when he was arrested by the police. 7. He further argued that in fact the appellant was being pressurized by the police to become its informer and its witness and give false evidence in a police case which he refused, hence he was falsely implicated by the police in the present case. It was further argued that the recovered revolver was also not sent by the police to the forensic laboratory alongwith cartridges which may show the genuineness of the prosecution story. On this aspect he has drawn the attention of the Court towards the cross-examination of P.W. 4, who is the Investigating Officer of the case in which he has admitted that he has not sent the recovered revolver to the Ballistic Expert. 8. It was further argued that the incident has taken place in a densely populated area and in a broad day light and the incident was witnessed by the passers bye and the persons who resided there but no one has been examined as prosecution witness from among those persons. Hence, the testimony of the said prosecution witness should be discarded as no reliance can be placed on the same and the appellant should be acquitted on this count alone, hence the conviction of the appellant is bad in the eyes of law. Hence, the testimony of the said prosecution witness should be discarded as no reliance can be placed on the same and the appellant should be acquitted on this count alone, hence the conviction of the appellant is bad in the eyes of law. On the said aspect, learned counsel for the appellant has drawn the attention of the Court towards the cross-examination of P.W. 1 in which he has stated that the place from where the accused was arrested is a densely populated area and at the time of occurrence there were several persons going on the road but none of them has supported the prosecution story. 9. Learned A.G.A. on the other hand has submitted that no doubt no one of the police party has received injuries at the hand of the appellant nor any member of the public received injuries though the incident had taken place in a busy market place of the city from where the accused was arrested by the police and a country made pistol was recovered from his possession but on this ground alone the conviction and sentence of the appellant cannot be set aside. He further submits that the country made revolver is said to have been recovered from possession of the appellant by the police as has been stated by the prosecution witness before the trial Court and simply because the same was not sent to the Ballistic Expert by the Investigating Officer, cannot be proved fatal to the prosecution case. So far as no independent witness had come forward to support the prosecution case with respect to the incident as well as the recovery made from the appellant as has been stated by the police persons can also be not a ground to discard their testimony as the police had tried to make effort to bring some independent witness to corroborate the prosecution story but the said witnesses were not ready to come forward, hence the independent witnesses cannot be produced by the prosecution. He further pointed out that the suggestion to this effect was made to the police persons before the trial Court and they have given a plausible explanation for the independent witnesses not coming to support the prosecution story and the trial Court has rightly convicted and sentenced the appellant for the offence in question. 10. He further pointed out that the suggestion to this effect was made to the police persons before the trial Court and they have given a plausible explanation for the independent witnesses not coming to support the prosecution story and the trial Court has rightly convicted and sentenced the appellant for the offence in question. 10. Having considered the submissions advanced by learned counsel for the parties and from a perusal of the record, it is apparent that admittedly no one has received the injury in the said incident either from the police party or from the public where the incident had taken place. It further transpires that the case of the prosecution is that the accused had fired a shot which did not hit the police party and thereafter he fired a second shot which too did not hit either any one of the police party or any persons from the public though the incident had taken place in a busy market place. It appears highly improbable that after two shots were fired none of it hit the police or the public, it raises suspicion regarding the prosecution story as has been stated by the prosecution witnesses, who the police personnels. Taking into account that no independent witness had come forward to support the prosecution case regarding the recovery of a revolver from the possession of the appellant though the recovery was made in a densely populated area of the city. It appears from the evidence that though the police party tried to gather some independent witness from the public to support its case but no one was ready to come forward, hence the police party itself become the witness of the recovery as is evident from the record. The said explanation given by the police persons also raises doubt about the recovery of weapon made from the possession of the appellant as it appears that the police out of its over zeal to work out a case had falsely implicated the applicant in the present case as there is no other corroborative evidence to support the recovery excepting the police witnesses. Moreover, the revolver which was recovered from the possession of the appellant alongwith empty cartridges, used cartridges and one missed was also not sent by the police to the Ballistic Expert for its opinion to be a corroborative piece of evidence which might have been an evidence to prove the prosecution case against the appellant. 11. Learned counsel for the appellant has cited a judgment of the Apex Court in Govinda Raju @ Govinda v. State, (2012) 4 SCC 722 and has drawn the attention of the Court towards paragraph-11 of the said judgment in which he submits that the reliance cannot be placed upon the sole testimony of the police witness (eye-witness). 12. In the said judgment, the Apex Court has held that as per the settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and another v. State of Jharkhand, MANU/SC/00004/2003: (2003) 2 SCC 401 , the Apex Court had classified the oral testimony of the witnesses into three categories: (a) Wholly reliable; (b) Wholly unreliable; and (c) Neither wholly reliable nor wholly unreliable. Learned Amicus Curiae further submitted that in the instant case, the category of witnesses falls under the third category, i.e., the police witnesses are neither wholly reliable nor wholly unreliable, hence the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. 13. He further point out that in the present case, the only eye-witnesses are stated to the police officers. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of the said witnesses. It is argued on behalf of the appellants that the police officers being the eye-witnesses, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out. 14. The entire case hinges upon the trustworthiness, reliability or otherwise of the testimony of the said witnesses. It is argued on behalf of the appellants that the police officers being the eye-witnesses, would be an interested witness, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out. 14. In the present case, it apparent that except the prosecution witnesses, who are the police personals, of the incident as well as of the recovery, there is no other witness. It raises suspicion regarding their testimony as there is no other corroborative piece of evidence to prove the prosecution case against the appellant. As has been stated above that though the incident had taken place in a busy market place from where the appellants was arrested alongwith the revolver, no person of the police party or public received injury nor any independent witness was produced. In such a situation, it appears that the police in its interest in the success of the case was motivated by overzealousness to an extent of his involving innocent persons; in that event, no credibility can attached to the statement of such witnesses. Thus, the prosecution has failed to prove its case beyond reasonable doubt against the appellant by a cogent evidence and the trial Court had convicted and sentenced the appellant on the basis of the prosecution witnesses, who were only the police persons and had accepted the explanation given by the police that they had tried to make available the independent witnesses from the public but they refused to come forward to support the prosecution story, does not appears to be a plausible explanation. 15. Thus, in view of the above, the judgment and order passed by the trial Court convicting and sentencing the appellant, is not sustainable in the eyes of law, hence the same is hereby set aside and the accused appellant is acquitted of the charges. He is on bail. He need not surrender. His bail bonds and sureties are discharged. The appeal stands allowed. Sri Aviral Saxena, learned Amicus Curiae has made able assistance to the Court in disposal of this appeal for which he shall be paid Rs. 3,000/- as his fees by the concerned department/Section of this Court. ——————