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2012 DIGILAW 2589 (ALL)

DHARAM SINGH @ DHARMA v. STATE OF U. P.

2012-11-05

A.P.SAHI

body2012
Amreshwar Pratap Sahi, J. This appeal arises out of the judgment and order relating to the conviction and sentences of the appellants in Sessions Trial No. 340 of 1979 connected with Sessions Trial No. 120 of 1980 convicting the appellants under Sections 147, 148, 149 and 307 I.P.C. respectively as referred to in the judgment on the grounds that the charges were proved beyond reasonable doubt that they had attempted to fire at a police party, and that a recovery had been made of certain items which appeared to be subject of a loot that was being distributed in the odd hours of the morning of 29th April 1979 at 4.30 A.M. 2. The FIR was lodged by the Sub-Inspector of Police himself whereafter a charge sheet was filed against all five of the accused. The prosecution examined Sri B.K. Mishra, Sub-Inspector of Police as P.W. 1 and Sri Sarnam Singh, Sub-Inspector of Police as P.W. 2. The recovery memo and recovery of articles and the recovery of a torch from the sight were made exhibits. The charges were framed on 28th March, 1980 and after the prosecution witnesses were examined, the deposition of the accused was recorded under Section 313 Cr.P.C. on 27.2.1982. Five witnesses appeared as D.W.1 to D.W.5 for the defence. The learned trial court on the basis of the evidence available convicted all the appellants and sentenced them accordingly. 3. The prosecution story is that while the police party headed by Sri Pooran Singh Inspector of Police and accompanied by Sri D.K. Mishra and Sri Sarnam Singh Sub-inspector and other constables, were undertaking a police patrol when they witnessed the alleged assembly of these persons who were 7-8 in number, and they heard a call that all the persons were alerted by naming Dharma that the police has arrived. The police party surrounded them and ultimately caught hold five persons who have been charged. The recovery of certain looted items, country made pistols and cartridges have also been recovered. The FIR discloses the details of the alleged incident which was sought to be supported by the recovery memo and the statement of the prosecution witnesses. 4. Learned counsel for the surviving appellants, as the appellant Nos. The recovery of certain looted items, country made pistols and cartridges have also been recovered. The FIR discloses the details of the alleged incident which was sought to be supported by the recovery memo and the statement of the prosecution witnesses. 4. Learned counsel for the surviving appellants, as the appellant Nos. 3 and 5 have died during the pendency of the appeal, Sri Shashwat Shukla contends that all the appellants have been falsely implicated and he submits that it was done on account of the alleged involvement of Banni Singh one of the constables of the police raiding party who is the brother-in-law of one Leela with whom the appellant No.1 Dharm Singh had enmity. He submits that this fact is writ large on the basis of cross examination of the prosecution witnesses and which has also been noticed by the trial court, but a perverse finding has been recorded in order to retain a conviction. He further contends that the alleged recovery is absolutely false inasmuch as no recovered item was exhibited before the trial court which fact has been admitted in the judgment itself. He further submits that none of the alleged recovered items were ever connected with any case of loot and, therefore, this evidence was concocted with a view to implicate the applicants. Their presence at the scene of occurrence at 4.30 A.M. is false, therefore, completely, manufactured. 5. To substantiate the same, the learned counsel for the appellant submits that the entire evidence of the prosecution nowhere indicates any utilisation of any vehicle by the police raiding party and it is not clear as to whether they were on bicycles or motorcycles or on a four wheeler. He submits that the presence of ten policemen as a raiding party without any source of transportation was, therefore, itself sufficient to create a reasonable doubt about the prosecution story. There is absolutely no indication of any injury to any of the police personnel from the shot fired when allegedly they had surrounded these people from a distance of 20 feet away.There is no explanation as to how the others allegedly ran away when all of them were surrounded. 6. The appellants have no criminal antecedents and the trial court has failed to take into consideration the allegations made by the defence that one of the constables related Leet who had enmity with the appellant No.1. 6. The appellants have no criminal antecedents and the trial court has failed to take into consideration the allegations made by the defence that one of the constables related Leet who had enmity with the appellant No.1. This is sufficient to construe a false implication of the appellants. 7. He further contends that Pooran Singh, Station House Officer who is alleged to have led the raiding party was not examined and the investigation officer was also not produced. He further submits that if there was an allegation of firing then it was one solitary shot alleged to have been fired whereas the evidence recorded during the trial indicates that two cartridges had misfired. Learned counsel submits that this was an inconsistent allegation and the recovery was absolutely false. There is no reported injury. 8. Learned AGA on the other hand contends that their presence can not be doubted and the recovery at least of the countrymade pistol and the cartridges deserves to be accepted. The trial court, therefore, having assessed the evidence had rightly come to the conclusion that the appellants had assembled together for distributing the ill begotten looted property. He submits that there was sufficient evidence to record a conviction under Section 307IPC as well as 147, 148 and 149 IPC. Learned AGA, therefore, submits that the conviction having been returned on the basis of the evidence adduced does not call for any interference by this Court in the exercise of the appellate jurisdiction. 9. Having heard learned counsel for the parties, the lapse in the prosecution story are writ large. They did not produce any alleged recovered material relate upto to loot. They did not, through evidence, establish the arrival of the police party either on any vehicle or any transport system when they were ten in number. To my mind it was highly improbable for all the ten people to have arrived together with no allegation as to the manner in which they arrived from the police station to the place of incident which was almost seven miles away. It is further not corroborated by any material of the case diary to indicate their departure or such other memo that may directly link and connect the arrival of these persons. The omission to examine the Station House Officer Mr. It is further not corroborated by any material of the case diary to indicate their departure or such other memo that may directly link and connect the arrival of these persons. The omission to examine the Station House Officer Mr. Pooran Singh or the investigating officer further adds to the misery of the prosecution and the trial court with all due respect has completely ignored these vital aspects. The allegations of firing one shot and the missing of the two shots is absolutely inconsistent with the statement of the prosecution witnesses. The recovered items are no where connected with any case. 10. Thus the presence of the police party at the scene of the occurrence itself becomes doubtful and the alleged recovery of the looted items could not be proved beyond reasonable doubt. This takes away the entire basis of the genesis of the prosecution story that the appellants had assembled to distribute looted property. There is no independent witness to corroborate the same. The alleged recovery of fire arms and cartridges also therefore is doubtful and appears to be planted. The possibility of the role of constable Banni Singh in implicating the appellant No.1 falsely also cannot be ruled out. In the circumstances in view of the aforesaid shaky and weak nature of the prosecution evidence, in my opinion the conviction cannot be upheld as they have not been able to prove the case beyond reasonable doubt. 11. The appeal is allowed. The order of conviction is set aside. All the appellants shall stand acquitted. The bail bond, if any, shall be released.