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2014 DIGILAW 503 (ALL)

RAMESHWAR v. STATE OF U. P.

2014-02-13

RAMESH SINHA

body2014
Ramesh Sinha, J. 1. Heard Sri P.S. Pundir, learned Amicus-curiae for the appellants, Sri R.K. Maurya, learned AGA for the State and perused the record. 2. This appeal has been filed against the judgment and order dated 25.11.1982 passed by IV Add. Sessions Judge in S.T. No.17 of 1981 and S.T. No.205 of 1981 convicting and sentencing each of the appellants under Sections 399, 402 IPC and 25 Arms Act to undergo rigorous imprisonment for 5 years and 2 years respectively. Esch of these sentences shall run concurrently. 3. The prosecution story as has been set-out is that on 10th day of March, 1980 at about 3.30 in the day at the house of Sheodan Singh, in village Jarera, situate within police circle Hasayan, district Aligarh, the accused assmbled for the purpose of commission of dacoity. On an information laid to Sri Horilal, the then Station Officer of police station Hasayan by an informer a raid was organized for the arrest of the miscreants and in such an attempt all the seven accused on trial in this case could be arrested after the police party headed by the Station Officer was satisfied from the talks of the accused as could be heard by them that it was a gang of dacoits which had assembled for the purpose of commission of dacoity somewhere. A search of the arrested accused resulted in the recovery of certain incriminating articles from their possession as detailed in the case. 4. Recovery memo Ex.Ka.1 was prepared on the spot which was attested by the witnesses present there. A case against the accused was registered after they had been brought to police station and was investigated in the routine way. The result of investigation was the prosecution of the accused who now stand charged in the case as aforesaid. 5. To prove its case against the accused, the prosecution examined in all four witnesses. 6. P.W.1 is Inspector Horilal Yadav who was then Station Officer of Police Station Hasayan. He stated that on 10.3.1980 he received an information through an informer that a gang of dacoits was present in village Jarera at the house of one Sheodan Singh. On this information, he along with S.I. Rajendra Singh and seven constables reached village Jarera at the house of Radhey Shyam at about 2.45 in the day. He stated that on 10.3.1980 he received an information through an informer that a gang of dacoits was present in village Jarera at the house of one Sheodan Singh. On this information, he along with S.I. Rajendra Singh and seven constables reached village Jarera at the house of Radhey Shyam at about 2.45 in the day. He sought the help of Radhey Shyam in the matter who himself collected seven witnesses including Hakim Singh, Krishna Murari, Ram Prakash, Radhey Kishan, Ram Prakash and Vijaipal out of whom Hakim Singh held a D.B.B.L gun and 20 live cartridges while all others held lathis. Personal searches of all of them were taken and none was found in possession of any incriminating article. At about 3.15 in the day, the police party including Radhey Shyam reached near the spot and took their positions in the house of one Samley where they concealed their presence. He then saw the miscreants sitting under the thatch on the ground in front of the kotha of Sheodan Singh facing towards the North. The dacoits talked among themselves that evening was approaching and that they should go away one by one and that Keshav, Soran and Mahavir would also meet them at about sunset near the Sitapur canal. Accused Sheodan then said that he would reach there later on with torches and bundles of clothes and that the person of the village where dacoity is to be committed would have also come at the canal of Sitapur by now. The talks of the miscreants as could be heard by him gave him satisfaction that it was a gang of dacoits which had assembled for the purpose of commission of dacoity. All of them then pounced upon the miscreants assembled there and arrested all the seven persons on the spot, at about 3.45 in the day, he searched all the arrested miscreants one by one and also inquired about their names and addressed. A search of accused Lal Singh resulted in the recovery of a factory made gun and 22 live cartridges in a Nibarh belt and a wrist watch, the glass of which was broken, all Exts. 1 to 24. Accused Nathuram was found in possession of a country-made gun and 19 live cartridges in a belt, two currency notes of Rs.10/- each from the Nefa of the underwear and a wrist watch, all Exts. 25 to 47. 1 to 24. Accused Nathuram was found in possession of a country-made gun and 19 live cartridges in a belt, two currency notes of Rs.10/- each from the Nefa of the underwear and a wrist watch, all Exts. 25 to 47. Accused Bahori was found in possession of a country made gun, 16 live cartridges in a Nibarh belt, one currency note of Rs.10/- one Biri bundle and a match box, all Exts.48 to 68. Accused Sheodan Singh was found in possession of a country-made pistol, 11 live cartridges in a Nibarh belt, three empty cartridges, one Biri bundle and a match box all Exts 69 to 83. Accused Mukhtar was found in possession of a country-made pistol, 7 live cartridges in a Nibarh belt, three currency notets worth Rs.8/- all Exts. 84 to 96. Accused Maniram was found in possession of a Ballam, Rs.2.20 in cash in change a Biri Bundle and a match box, all Exts. 96 to 100. Accused Rameshwar was found in possession of a Ballam and a currency note of Rs.1/- Exts. 101 and 102. Nibarh belts of Lal Singh and Nathuram are Exts. 103 and 104 respectively. 7. From the that by the sides of Western wall of the Kothri from inside a potli of a Tahmad, five torches, a bag of black raxene, one Dhoti Mardani and one underwear, all Exts. 105 to 113 were also recovered. Accused Lal Singh claimed the dhoti, underwear and the raxene bag belonging to him and the five torches all belonging to all of his associates. He got the recovery memo Ex.Ka.1 prepared by S.I. Rajendra Singh which was written to his dictation by him and was attested by all the witnesses. The recovered property, except the ballams, were separately sealed on the spot. The accused were made Baparda there. He returned to police station along with the accused and the property recovered from their possession at 6.50 in the evening where a case against them was registered. The case in the general diary against the accused was registered at serial no.31 of 10.3.1980 by Ramvir Singh, the copy of which is Ex.Ka.2. The information of the informer about the miscreants was recorded by the same Head Moharrir Ramvir Singh in the general diary at serial no.24 of 10.3.1980, at 1.20 in the day, the copy of which is Ex.Ka.3. The information of the informer about the miscreants was recorded by the same Head Moharrir Ramvir Singh in the general diary at serial no.24 of 10.3.1980, at 1.20 in the day, the copy of which is Ex.Ka.3. The same Head Moharrir Ramvir Singh prepared the chik FIR of the case on the basis of the memo Ex.Ka.1 which is Ex.Ka.4. 8. P.W.2 is Krishna Murari. He stated that on the day of occurrence, certain police men came to his village and then Pradhan Radhey Shyam took him from his house to those police-men. He reached the chaupal of Pradhan at about 3.00 in the day. The Pradhan had told him that the police had arrived to arrest certain miscreants. Radha Kishan etc. had also come on being called by the Pradhan. After their personal search, all of them went in the Mohalla of Jatavas and took their positions behind the wall of Samley. He then saw seven persons sitting on the ground under the thatch in front of the house of Sheodan. Some of the miscreants said that they should proceed and that he would come later on. They should reach the canal of Sitapur where that man would meet them at whose village dacoity was to be committed. The talks of the miscreants gave him satisfaction that it was a gang of dacoits which had assembled for the purpose of commission of dacoity. The police party then pounced upon the miscreants and arrested all those seven persons at about 3.30 in the day. He was now unable to name the persons who were arrested on the spot. The sub-inspector searched those persons then and there and prepared memo in respect of recovery of articles from their possession. The recovered property was separately sealed on the spot. He was now unable to specify separately what was recovered from each of the seven persons arrested on the spot. In his memory, three guns, two country-made pistols, two lathis, five torches, 70 live cartridges, three empty cartridges and some cash were recovered. The Sub-Inspector wrote out memo Ex.Ka.1 on the spot which was signed by him also. The accused held no licence for the possession of arms and ammunitions found with them. 9. P.W.3 is Radhey Shyam, Pradhan of the village. The Sub-Inspector wrote out memo Ex.Ka.1 on the spot which was signed by him also. The accused held no licence for the possession of arms and ammunitions found with them. 9. P.W.3 is Radhey Shyam, Pradhan of the village. He stated that on 10.3.1080, the Station Officer of police station Hasayan along with one Sub-Inspector and seven constables came to his village at about 2.45 in the evening. The sub-inspector told him that a gang of miscreants has been reported to have assembled in the village which is to be arrested. Upon this, he called Krishna Murari and Hakim etc. seven persons and out them Hakim Singh held his gun while all the remaining six others held lathis. Personal searches of all of them were taken. Thereafter, they went near the house of Sheodan and reached there at about 3.25 in the day and concealed their presence behind a wall of the house of Sheodan. He then saw seven persons sitting under the thatch in front of the house of Sheodan. The miscreants were talking among themselves and said that they should now proceed therefrom one by one and that the informer and other companions would meet the canal minor of Sitapur. Sheodan then said that all of them should proceed therefrom and that he would come later on with other items. The talks of the miscreants gave him satisfaction that it was a gang of miscreants. All of them then pounced upon them and succeeded in arresting all of them at about 3.30 in the evening. After their arrest, the offenders disclosed their names and addresses to the station officer. As a result of search of them, accused Lal Singh was found in possession of a country-made gun, 22 live cartridges and a wrist watch. Nathuram was found in possession of a single barrel gun, 19 live cartridges, a wrist watch and Rs.20/- in cash. Accused Bahori was found in possesion of a country-made S.B.B.L. Gun, 16 live cartridges, Rs.10/- in cash, Biris and a match box. Sheodan was found in possession of a country-made pistol, 11 live cartridges, Biris and match-box. Accused Mukhtar was found in possession of a country-made pistol, 4 live cartridges, Rs.8/- in cash and a bundle of Haris. Accused Bahori was found in possesion of a country-made S.B.B.L. Gun, 16 live cartridges, Rs.10/- in cash, Biris and a match box. Sheodan was found in possession of a country-made pistol, 11 live cartridges, Biris and match-box. Accused Mukhtar was found in possession of a country-made pistol, 4 live cartridges, Rs.8/- in cash and a bundle of Haris. Accused Maniram was found in possession of a Ballam, Rs.2.20 in change, Biris and a match-box while accused Rameshwar was found in possession of a Ballam and Rs.1/- in cash in currency note. The live cartridges with the accused had been fixed in belts and that they had no licence for the possession of arms and ammunitions found with them. From the spot of the assembly of the miscreants, a potli of a tahmad was also recovered which contained a black jhola, certain clothes and five torches as well. The recovery memo Ex.Ka.1 was prepared on the spot which was attested by him as well. The recovered property was sealed on the spot separately. 10. P.W.4 is Sri K.G. Tyagi, S.I. Police who investigated the case. He stated that during the course of investigation, he inspected the scene of occurrence on 30.4.1980 and prepared site-plan Ex.Ka.5. After examination of necessary witnesses, he submitted charge sheet against the accused Ex.Ka.6 for offence u/s 399 and 402 IPC. He further submitted charge sheets for offence u/s 25 Arms Act against accused Lal Singh, Mukhtar, sheodan Singh, Bahorilal and Nathuram Exs. Ka.7 to Ka.11 respectively and also proved the sanction of the then District Magistrate Sri Ajai Vikram Singh for the prosecution of these accused for the said offence Exs.Ka.12 to Ka.16 respectively. 11. The accused in their statements denied their complicity in the matter and pleaded not guilty. It has been further stated by accused Nathuram that he was arrested by the police at about 2.00 in the day near village Sakra when he was going to his sister's house in village Uldapur. Accused Mukhtar further stated that he was arrested at about 5.00 in the day in village Sakra when he was proceeding to his sister's house in village Bahentar. Accused Sheodan further stated that Rameshwar, Bahorilal and Maniram are his relations who had come to his house for the settlement of the marriage. Accused Mukhtar further stated that he was arrested at about 5.00 in the day in village Sakra when he was proceeding to his sister's house in village Bahentar. Accused Sheodan further stated that Rameshwar, Bahorilal and Maniram are his relations who had come to his house for the settlement of the marriage. In the noon, Pradhan came to his house and took him to his house where the police was present which arrested him. The police later on also arrested all his relations named above. Accused Bahorilal further stated that he was arrested by the police in village Jarera at about 12.00 or 1.00 in the day when he had gone to that village along with his uncle etc. to see a boy for the marriage of his cousin daughter, the daughter of his uncle. Accused Maniram further stated that he was arrested from the house of Sheodan accused where he had gone in connection with the marriage of his daughter. His two nephews were also within him then. Sheodan is related to him as the son of his sister. Accused Rameshwar further stated that accused Sheodan of the case is related to him as cousin and he had gone to the house of Sheodan along with Maniram and Bahori and all of them were arrested there. The accused also examined one witness in their defence. 12. D.W.1 is Bakhtayar. He stated that on the day of occurrence at about noon when he was sitting at his house which is situate near the house of Sheodan Singh, Pradhan Radhey Shiam of his village came to the house of Sheodan Singh accused and took him along with him on some pretext. Accused Sheodan thereafter did not return to his house. On that day Maniram and his two nephews had also come to the house of Sheodan Singh in connection with some marriage. The police took away accused Maniram, Rameshwar and Bahor under arrest from the house of Sheodan Singh. These persons held no arms and ammunitions at the time of their arrest by the police. He did not intervene into the matter on account of fear of the police. 13. The police took away accused Maniram, Rameshwar and Bahor under arrest from the house of Sheodan Singh. These persons held no arms and ammunitions at the time of their arrest by the police. He did not intervene into the matter on account of fear of the police. 13. Sri P.S. Pundir, learned Amicus-curiae has argued that taking the prosecution cas at it's face value, there is no evidence to show that the appellant had assembled for the purpose of committing dacoity or they had made any preparation for committing the same. Hence the conviction and sentence of the appellants awarded by the trial court be set-aside. He further pointed out that prosecution witnesses who have deposed against the appellants is P.W.1, Station Officer of the police station Hasayan who has lodged the present FIR against the accused. The other prosecution witness i.e. P.W.2 Krishna Murari who is stated to have accompanied the place of occurrence with P.W.3, Radhey Shyam who is pradhan of the village along with police party were highly inimical to the accused Sheo Dan Singh as he belonged to Jaat community and he did not vote in the Pradhani election in favour of P.W.3. The recoveries which has been shown from the accused persons are also false recovery and the accused persons have been falsely implicated in the present case by the Police for their ulterior motives. Moreover learned counsel for the appellant drawn attention of the Court towards the defence version given by the accused in the statement u/s 313 Cr.P.C specially to that of accused Sheo Dan Singh who has categorically stated before the trial court that he was having inimical relations with the Pradhan of the village P.W.3 Radhey Shyam and the co-accused Rameshwar, Bihari Ram and Mani Ram were his relatives and had come to his house for in connection with a talk for marriage and they all were arrested by the police which called them to the Police Station where the police had illegally arrested him along with his relatives. 14. Sri R.K. Maurya, learned AGA on the other hand has argued that there has been a recovery of weapons from the possession of the accused of fire-arm weapons and cartridges in huge quantity which cannot be said to be a false plantation of the said weapons and cartridges on the accused persons. 14. Sri R.K. Maurya, learned AGA on the other hand has argued that there has been a recovery of weapons from the possession of the accused of fire-arm weapons and cartridges in huge quantity which cannot be said to be a false plantation of the said weapons and cartridges on the accused persons. He could not dispute the fact that there was no evidence led by the prosecution which may show that the appellants had assembled in the house of Sheo Dan Singh for the purpose of committing dacoity or they had made any preparation for committing the same. 15. Considered the submission advanced by learned counsel for the parties. 16. I have perused the judgment of the trial court as well as record of the case. 17. From the prosecution case it transpires that P.W.1 Hori Lal who is the Station Officer of the concerned polise station and P.W.2 Krishna Murari and P.W.3 Radhey Shyam and Pradhan of the village had accompanied the police party to the place of occurrence near the house of Sheo Dan Singh and they saw the accused with fire-arm weapons and they heard the accused talking for commission of dacoity. 18. From the evidence of P.W.1, 2 and 3, it is evident that only bald statement has been made by the said witnesses before the trial court but the said statement is not enough to prosecute the accused for the offence in question without there being any other legal evidence to show that the accused were actually making the preparation for committing the same. 19. Learned Amicus-curiae for the appellants in support of his contention has placed reliance on the judgment of the Apex Court in the case of AIR SC 1979 1412 SC Chaturi Yadav Vs. State of Bihar and submitted that mere fact that these persons were found at the house of Sheo Dan Singh at 3.30 in the after-noon in village Barera within the Police Station Hasia, district Aligarh does not by itself prove that the appellants had assembled for the purpose of committing dacoity or for making preparation to accomplish that object. He submitted that if the prosecution case is taken on it's face value then there may be possibility that the accused may have collected for the purpose of murdering somebody or committing some other offence. 20. He submitted that if the prosecution case is taken on it's face value then there may be possibility that the accused may have collected for the purpose of murdering somebody or committing some other offence. 20. The Apex Court in the aforesaid judgment has held that if there is no legal evidence to support the charge u/s 399 and 402 IPC, against accused the possibility for the appellants may be collected for the purpose of murdering somebody or commit the some other offence cannot be safely eliminated, in the said circumstances had allowed the appeal and set-aside the conviction of the accused. 21. As is apparent from the entire prosecution evidence, in the instant case excepting bald statement made by the witnesses that they heard the accused talking amongst themselves for committing dacoity itself is not sufficient to bring home guilt to the accused. The evidence of the prosecution witnesses also does not inspire confidence hence the submission that there is no legal evidence to support the charge under Section 399and 402 IPC against the appellants is well founded and must prevail. The evidence led by the prosecution show that seven accused persons were found in the house of Sheo Dan Singh and all of them were armed with guns and had cartridges does not by itself prove that the accused assembled to commit the dacoity. The judgment of the Apex Court in the Case of Chaturi Yadav Vs. State of Bihar ( Supra) squarely covers the facts and circumstances of the present case, hence the conviction of the appellants is liable to be set-side by this Court. 22. In view of the foregoing discussion, the trial court has committed error in recording the conviction and sentence of the appellants as the prosecution has failed to bring home the guilt to the accused who are entitled to be acquitted. Thus, the judgment and order passed by the trial court is not sustainable in the eyes of law, hence the same is set-aside and the appellants are acquitted. They are on bail. They has not surrendered. Their bail bonds and sureties are discharged. 23. The appeal stands allowed.