JUDGMENT Hon’ble Mohd. Tahir, J.—This criminal appeal has been filed against the judgment and order dated 26.7.1982 passed by IIIrd Addl. Sessions Judge Moradabad in ST No. 183 of 1979 State v. Kedari and others, under Section 399, 402 IPC and 27 Arms Act whereby the trial Court has convicted the appellants Kedari, Shiama alias Shiam Lal, Anandi and Murari and sentenced them to undergo 3-1/2 years R.I. under Section 399/402 IPC and one year R.I. Under Section 27 Arms Act. 2. Shorn of unnecessary details the prosecution version, in brief, is that on 9.6.1978 the Station Officer Dharam Vir Singh of P.S. Bahjoi received a confidential information from some informer that an armed gang of Kedari would assemble on the Bahjoi-Islam Nagar road between the villages Bahpur Patti and Mau Ka Ther for looting a businessman of Rab who is coming by some truck. After making an entry in the General Diary to this effect the Station Officer alongwith S.I. Iqbal Uz Zaman (PW-1), Chhajju Singh (PW-2) and other police personnel proceeded to the spot with necessary arms and ammunitions. He collected two public witnesses Najmul Khan and Kalloo Singh from village Bahpur and reached the culvert of the Government tube well on the Bahjoi-Islam Nagar road over which the miscreants had to assemble. Two public witnesses namely Virender Pal Singh (PW-3) and Bharosey were called for on the spot. The Station Officer thereafter explained the purpose of assembling there to all the members of police force and public witnesses and gave necessary instructions. He divided them into three parties. One party was kept by him under his charge and another one party was given in the charge of S.I. Iqbal Uz Zaman (PW-1) and the third party was given in the charge of S.I. Chhajju Singh (PW-2) at about 10 p.m. The party No. 1 took its position in ambush towards north of the road in the bushes. The party No. 2 also took its position towards north of the road to the east of the drain by the side of the bushes and the third party took its position towards south of the road by the side of the bushes. At about 10.30 p.m. six miscreants arrived there and sat down on the culvert and began to talk. They were saying that Kedari had not come so far. At about 10.30 p.m. six miscreants arrived there and sat down on the culvert and began to talk. They were saying that Kedari had not come so far. After about ten minutes two more persons arrived from the western side and joined them after salutation and one of them said that there was no bricks or stones to block the road, then one another miscreant advised to cut down a Babool tree and place the same over the road to stop the truck and also to make a fire on the tyre of the truck if necessary. The accused persons then began to load their weapons and one of them began to cut the Babool tree. Thereafter the Station Officer on his satisfaction that the persons assembled there were the dacoits about whom the confidential information was received by him and under his instructions a V.L.P. Fire was made which produced sufficient light and on the challenge given by the Station Officer the members of all the three police parties surrounded the miscreants and arrested four of them namely accused Kedari, Shyama, Anandi and Murari on the spot and remaining four miscreants managed to escape from the spot. The search of the arrested persons was taken. From the possession of Kedari one SBBL gun with one cartridge in its barrel and five cartridges in a bandolier were recovered and from the possession of accused Anandi a country made pistol and three live cartridges and currency notes of Rs. 7/- were recovered. From the possession of accused Murari one pistol and four live cartridges, five biri bundles, three match boxes and currency notes of Rs. 8/- were recovered. From the possession of accused Shyama one country made pistol, four live cartridges, a towel and a torch were recovered. All the articles recovered from the possession of the accused persons were sealed and separate recovery memos (Ext.Ka.3 to Ka.6) were prepared in respect thereof. One empty cartridge of V.L.P. was also sealed by the Station Officer and a separate memo (Ext.Ka.7) was prepared in respect thereof. From the spot a rope from the Babool tree was also taken into possession and in that regard also a recovery memo was prepared. The arrested accused and the sealed bundles were taken to P.S. Bahjoi at 2.45 p.m. on 10.6.1978 and in this connection the Station Officer lodged oral First Information Report. 3. From the spot a rope from the Babool tree was also taken into possession and in that regard also a recovery memo was prepared. The arrested accused and the sealed bundles were taken to P.S. Bahjoi at 2.45 p.m. on 10.6.1978 and in this connection the Station Officer lodged oral First Information Report. 3. Constable Chhajju Singh (PW-2) prepared a chick report (Ext.Ka.9) on the basis of the above FIR and entered the gist thereof in the general diary, the extract of which is Ext.Ka.10 and registered the case against the accused persons. The investigation of this case was entrusted to S.I. Narrender Singh (PW-5) who after making inspection of the spot prepared site plan (Ext.Ka.11) and after completing the investigation filed charge-sheet (Ext.Ka.12) against all the accused persons under Section 399, 402 IPC. He also submitted charge-sheets (Ext.Ka.13 to Ka.16) against these accused for their prosecution under Section 25 Arms Act after obtaining necessary sanction from the District Magistrate concerned. Thereafter this case was committed to the Court of Sessions by the Munsif Magistrate Moradabad where the same was registered as ST No. 183 of 1979 and thereafter the same came before the Court of IIIrd Additional Sessions Judge for disposal. 4. The trial Court framed charges under Section 399, 402 IPC and Section 27 Arms Act against the accused persons. The accused persons denied the charges and claimed to be tried. 5. The prosecution in order to prove its cases examined five witnesses in all. Out of them PW-1 is S.I. Iqbal Uz Zaman, PW-2 is S.I. Chhajju Singh Yadav and PW-3 is Virendra Pal Singh. These three witnesses are witnesses of fact. PW-4 is Head Constable Jhabbu Singh who proved the chick FIR and extract of G.D. Ext.Ka.9 and Ka.10 respectively. PW-5 S.I. Narrender Singh is the Investigating Officer of this case who proved the investigation conducted by him and, site plan (Ext.Ka.11), charge-sheets (Ext.Ka.12 to Ext.Ka.13) and other papers. 6. The accused persons in their statement recorded under Section 313 Cr.P.C. had denied the prosecution case and further stated that they have been falsely implicated in this case. 7. PW-5 S.I. Narrender Singh is the Investigating Officer of this case who proved the investigation conducted by him and, site plan (Ext.Ka.11), charge-sheets (Ext.Ka.12 to Ext.Ka.13) and other papers. 6. The accused persons in their statement recorded under Section 313 Cr.P.C. had denied the prosecution case and further stated that they have been falsely implicated in this case. 7. The trial Court after hearing the counsel for the accused persons and considering the evidence on record convicted the accused persons namely Kedari, Shyama @ Shyam Lal, Anandi and Murari under Section 399, 402 IPC and Section 27 Arms Act and sentenced them to undergo rigorous imprisonment for 3-1/2 years under Section 399 and 402 IPC and to undergo rigorous imprisonment for one year under Section 27 Arms Act and further directed that all the sentences shall run concurrently. 8. Aggrieved by the impugned judgment and order dated 26.7.1982, the aforesaid convicted accused persons have filed this criminal appeal. 9. During the pendency of the appeal accused appellants Kedari and Shyama died. So the appeal as against them stood abated. Now the accused appellants Anandi and Murari are left out. 10. I have heard learned counsel for the accused appellants Anandi and Murari, learned AGA for the State and perused the evidence on record. 11. Learned counsel for the accused appellants has submitted that no such incident took place; that police had fabricated a false case against the accused persons just to show their false Kargujari; that there are various discrepancies and contradictions in the testimony of prosecution witnesses and that the prosecution version is highly improbable and unnatural and that PW-1 and PW-2 are police witnesses so their testimony cannot be relied upon without any corroboration from any independent and reliable source. So the lower Court committed error in placing reliance upon their testimony. On the other hand, learned AGA has supported the impugned judgment and order and has further submitted that there is no material discrepancy or contradiction in the statement of the prosecution witnesses and the testimony of the police witnesses finds corroboration from the testimony of the public witness namely Virendra Pal, so the Court below has committed no error in believing their testimony and in convicting and sentencing the accused appellants. 12. I have considered the rival submission in the light of evidence on record and in the facts and circumstances of the case. 13. 12. I have considered the rival submission in the light of evidence on record and in the facts and circumstances of the case. 13. The first informant of this case is Station Officer Dharam Vir Singh and witnesses PW-1 S.I. Iqbal Uz Zaman and PW-2 S.I. Chhajju Singh were his subordinate officers. So their testimony shall be construed as the testimony of a single witness. Now the question is this as to whether their testimony inspires confidence or not? 14. PW-1 S.I. Iqbal Uz Zaman in his cross-examination has stated that he did not remember as to whether there was any sugarcane field near the place of occurrence or not, while according to site plan (Ext.Ka.11) there was a sugarcane field just near the said place of occurrence. He does not remember as to what crop was standing in the south of the road. 15. In paragraph 23 of his statement he has categorically stated that in the night of the occurrence there was cloud in the sky and there was no moonlight and the accused persons had come there and sat on the culvert without taking any cover. His party was at a distance of 10-15 paces from the said culvert. This statement of PW-1 S.I. Iqbal Uz Zaman does not fit in within the facts and circumstances of the matter because according to recovery memo a torch of three cells is said to have been recovered from the possession of an accused Shyama. So it is against the common sense that the accused persons would have come to the spot and would sit on the said culvert without taking any care and without checking the place around their place of sitting by throwing light from the torch. 16. It is also pertinent to mention here that four witnesses are said to have been fled away from the spot towards the south-west direction but it is surprisingly enough that no police personnel had chased them or fired upon them or in the air so as to stop them, while according to the FIR there was heavy arms and ammunitions with the police personnel who were thirteen in number and according to the site plan there was no crop in the south-west direction. Had it been so the fleeing miscreants would be easily caught by the police. 17. It is also surprising that no fire from either side was made. Had it been so the fleeing miscreants would be easily caught by the police. 17. It is also surprising that no fire from either side was made. This very aspect of the prosecution version is also against the common course of human conduct and makes the prosecution version doubtful. 18. The businessman of Rar in respect of whom the information was said to have been received by the police from some Mukhbir appears to have no existence because his name did not come either in the FIR or during the course of investigation or during the trial, so he appears to be an imaginary person. PW-2 Chhajju Singh in his cross-examination has stated that when the said informer came to the police station he was also there, that informer did not tell the name of that Lala (businessman). The informer did not even tell the number of the said truck by which that businessman was to come. He has further stated in his cross-examination that on the spot he spent about 2-1/2 to 2-3/4 hours in preparing the memos and sealing the alleged material. During that period trucks and bullock carts had passed by that place but the police personnel did not stop any truck to know as to whether that businessman of Rar was sitting in any truck or not. This aspect of the matter is also against the human probabilities and indicates that no such information was given by any police informer nor any gang of dacoits had assembled there on the alleged spot. So, the testimony of the police personnel does not fit in within the facts and circumstances of the matter and the same is against the human probabilities. Hence the same does not inspire confidence. 19. It is also pertinent to mention here that two public witnesses and the Mukbir are said to have reached near the spot by three or four rickshaws as has come in paragraph 8 of the statement of S.I. Chhajju Singh (PW-2) but none of the rickshaw pullers has been made the witness in this case nor any explanation of non-joining them as witnesses has been given by the prosecution. 20. 20. The public witness Virendra Pal Singh (PW-3) is a pocket witness as he in his cross-examination has admitted that in another case namely State v. Balla Ali, under Section 399, 402 IPC he was the witness and in that case the gang of dacoits was said to have assembled near this culvert also. So this witness is a police witness and moreover from his statement that has been given by him in his cross-examination it appears that he was not there on the spot in the night in question because he has stated that when the miscreants were arrested by the police they were in the north side of the culvert. As per site plan of the spot there was drain of the tube well in the north side of the culvert and on both the sides of that drain two police parties are said to have assembled. So his testimony is against the site plan of the spot. Apart from it, this witness has stated in his cross-examination that four miscreants fled away towards the north side of the road and that the tree of Babool was towards the west of the road at a distance of 6-7 yards from the said culvert. This statement is also against the site plan of the spot (Ext.Ka.11) because according to the site plan those miscreants fled away towards the south west side and the said Babool tree was in the south side of the road. So this contradiction in the testimony of PW-3 Virendra Pal Singh also indicates that he is not a reliable witness and his testimony is totally against the site plan. Therefore, his testimony is of no help to the prosecution and the same is not capable of giving any support to the testimony of the police personnel (PW-1 and PW-2). 21. For the foregoing reasons and discussions, I come to this conclusion that the prosecution has failed to prove its case beyond reasonable doubt and the Court below has erred in appreciation of the evidence in the proper perspective of the matter. Thus the impugned judgment and order is not warranted by law and facts on record. 22. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial Court dated 26.7.1982 is hereby set aside. Thus the impugned judgment and order is not warranted by law and facts on record. 22. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial Court dated 26.7.1982 is hereby set aside. The accused appellants Anandi and Murari are not found guilty of any of the charges framed against them and they are acquitted of all the charges levelled against them. They need not surrender in the Court. Bail bonds stand discharged. 23. Office is directed to return the lower Court record to the lower Court concerned alongwith a copy of this judgment for information and to do the needful. ———————