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2016 DIGILAW 1829 (ALL)

M. Lal v. State of U. P.

2016-05-11

RANJANA PANDYA

body2016
JUDGMENT Mrs. Ranjana Pandya, J. – Challenge in this appeal is to the judgement and order dated 4.9.1982, passed by Special Judge/Special Court, Kanpur Dehat in S.T. No. 35 of 1982 (State v. Munna and Another), under Section 399 /402 I.P.C. and 25 of the Arms Act, Police Station-Sajeti, District-Kanpur Dehat, whereby the accused-appellants were found guilty and sentenced to 7 years' rigorous imprisonment under Section 399 I.P.C., 5 years' rigorous imprisonment under Section 402 I.P.C. and 1 year rigorous imprisonment under Section 25 Arms Act. 2. The accused-appellant Nos. 1 and 2 namely Panna Lal and Munna Lal have died during pendency of the appeal, hence the appeal in regards to appellant Nos. 1 and 2 have abated. 3. Brief facts of the case are that on 12.12.1981, Sri Om Prakash Jha, Station Officer, P.S. Sajeti, Kanpur Dehat got an information from an informer that a gang of dacoits would commit dacoity in the house of Raja Ram and would assemble in the temple situated in village Bibipur. He got this information entered in the General Diary (GD). Thereafter, S.O. along with S.I. Sri Ram Shankar Shukla and other Police Personnel proceeded from the police station at 10: 00 P.M. by jeep. They reached at the turning of Anoop-Pur and from there Sub Inspector Sri Mahadeo, with two constables joined the party. From there, they went to the culvert of village Bibipur and from there Vijay Kumar and Raj Narain Awasthi were sent to the village to call upon the witnesses. The S.O. conveyed the information given by the informer to all the party members. Thereafter, the witnesses Sheo Lal, Raj Sajiwan and Rajju Lal were brought by the aforesaid Constables. The search of all the public witnesses was made by the police personnel and they did not find any illicit arms. The S.O. divided the police party into three parts. He himself was the leader of the first party. Ram Shankar Sharma was the leader of the second party and Sri Mahadeo Singh was the leader of the third party. The S.O. sent Constables Prem Kumar and Brijesh Kumar to the house of Raja Ram for security purpose. After reaching the grove, where the temple of Usha Kant Baba was situated, the parties took their position. Ram Shankar Sharma was the leader of the second party and Sri Mahadeo Singh was the leader of the third party. The S.O. sent Constables Prem Kumar and Brijesh Kumar to the house of Raja Ram for security purpose. After reaching the grove, where the temple of Usha Kant Baba was situated, the parties took their position. The first party sat towards the north of the temple, the second party sat towards the south and the third party sat towards the east of the temple. The informer had told that the dacoits would come from the western side, so, that side was left. After about 20 minutes, i.e. at about 12: 00 in the night, three miscreants came from the west and sat inside the temple. After a short time, four dacoits also came there and they started conversing that they should now go to the house of Raja Ram Seth to commit dacoity. They had sufficient arms. When they were about to proceed then the S.O. got satisfy by hearing the conversation that they were going to commit dacoity, then he fired V.L.P. and challenged the dacoits. Four of the dacoits namely Munna Lal, Panna Lal, Krishan and Gayacharan were arrested on the spot and the other three miscreants fled away. The S.O. conducted search. Consequently, Munna Lal was found having in his possession one country made pistol and two live cartridges, Panna Lal was found having in his possession one country made pistol and two live cartridges. Krishna and Gayacharan were also found having in their possession one country made pistol and two live cartridges. The recovered articles were sealed on the spot and recovery memo was written on the spot. The pieces of Beedi and matches were also taken into possession. The accused and the recovered articles were taken to the police station, where a report was lodged. A case under Section 399 /402 I.P.C. and 25 Arms Act was registered. Sri Mahmood Ali, S.I., commenced investigation on 13.13.1981. He went on the spot, prepared the site plan, recorded the statements of the witnesses and submitted the charge-sheet to the District Magistrate for the requisite sanction and after obtaining the sanction, he submitted the charge-sheet. 4. In support of its case, the prosecution examined P.W.1 Shri Ram Shankar Shukla, who is said to be the eye-witness of the occurrence. He went on the spot, prepared the site plan, recorded the statements of the witnesses and submitted the charge-sheet to the District Magistrate for the requisite sanction and after obtaining the sanction, he submitted the charge-sheet. 4. In support of its case, the prosecution examined P.W.1 Shri Ram Shankar Shukla, who is said to be the eye-witness of the occurrence. He proved the country made pistol as material Exhibit 1 and the cartridges as material Exhibit 2/1, 2/2, material Exhibit 3, 4/1, 4/2, material Exhibit 5, 6/1, 6/2 and material Exhibit 7, 8/1 8/2. He also proved the pieces of Beedi as material Exhibit 9, V.L.P. empty cartridge as material Exhibit 12. The witness prepared the memo on the spot, which was proved as Exhibit Ka-3. The chik report was prepared and proved as Exhibit Ka-4. Fard was proved as Exhibit Ka-1. Copy of G.D. was proved by this witness as Exhibit Ka-2. 5. P.W. 2 is Ram Sajiwan, who is also said to be the eye-witness of recovery. P.W. 3 is I.O. Mahmood Ali, who conducted the investigation. He recorded the statements of the witnesses and prepared the site plan, which was proved by this witness as Exhibit Ka-5. Further, this witness proved the charge-sheet as Exhibit Ka-6, Ka-7, Ka-8, Ka-9 and Ka-10. This witness also proved the prosecution sanction order as Exhibit Ka-11, Ka-12, Ka-13 and Ka-14. 6. After examining three witness, the prosecution closed its evidence. Thereafter, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the occurrence and stated that they had been falsely implicated due to enmity. 7. After hearing counsel for the parties, learned lower court found the accused-appellants guilty and sentenced them as has been specified in Para 1 of the judgement. 8. Feeling aggrieved, the accused-appellants have come up in present appeal. 9. I have heard learned counsel for the appellants, learned A.G.A. for the State, and perused the trial court record. 10. An argument has been advanced on behalf of the appellants that the recovery is bad in the eyes of law. There is no evidence on record to show that the alleged fire arms recovered from the accused were in working conditions, hence by no stretch of imagination it can be said that the accused-appellants had made any preparation or had committed any offence as envisaged under Sections 399 and 402 I.P.C. 11. There is no evidence on record to show that the alleged fire arms recovered from the accused were in working conditions, hence by no stretch of imagination it can be said that the accused-appellants had made any preparation or had committed any offence as envisaged under Sections 399 and 402 I.P.C. 11. It has further been submitted on behalf of the accused-appellants that there was no identification parade held by the I.O. and this is not clear as to how the witnesses identified the accused persons. 12. Learned counsel for the appellants has further placed reliance upon 2006 (Cr.L.J.) Page 1775 : Ram Kishan v. State of U.P., in which it has been held: "If the search, seizure and arrest is alleged to be made by the police party in the odd hours of night and there are no independent witnesses to prove the arrest or recovery of arms, no identification parade held and there was no exchange of fire and no sustained injuries in the course of entire incident and if signatures of the accused persons were not obtained on the Fard, the whole incident becomes doubtful." 13. In the same context, learned counsel for the accused-appellants has placed reliance upon 1995 (19) ACR 70 Raghubir and Others v. State of U.P., in which it has been held: "If the I.O. is subordinate to the informant the investigation shall be treated to be tainted and no reliance can be placed upon." 14. Investigation regarding the act of senior officer should not be conducted by a junior officer. Even, it has been submitted that the sanction is bad in the eyes of law. The I.O. Mahmood Ali was S.I. whereas P.W. 1 Ram Shankar Shukla was S.O. at the present time. Hence, I.O. being subordinate to the informant, no reliance can be placed upon the investigation. As far as the evidence of Ram Sajivan, PW2, is concerned, he is said to be an independent witness, but the whole incident as narrated by him is doubtful. Inasmuch he has stated that the papers were not read by him because he is illiterate and he cannot said what was shown in the field at the relevant time. He has also admitted that the accused-persons were not made Baparda. He could not even said as to what weapon were recovered from the accused-persons. Inasmuch he has stated that the papers were not read by him because he is illiterate and he cannot said what was shown in the field at the relevant time. He has also admitted that the accused-persons were not made Baparda. He could not even said as to what weapon were recovered from the accused-persons. He has further stated that the I.O. recorded his statement, just after the occurrence. Thus, the whole statement of this witness is unreliable and does not inspire confidence. 15. Thus, on the basis what has been stated and discussed above, I find that the learned lower court has misled itself in reaching to the conclusion that the accused is guilty for the offence charged. Thus, the accused-appellants are entitled to be acquitted and the appeal is liable to be allowed. Hence, the impugned judgement of conviction and sentence dated 4.9.1982, passed by Special Judge/Special Court, Kanpur Dehat in S.T. No. 35 of 1982 (State v. Munna and Another), under Section 399 /402 I.P.C. and 25 of the Arms Act, Police Station-Sajeti, District-Kanpur Dehat is, hereby, set aside. 16. Accordingly, the appeal is allowed. The appellants are in jail. They shall be released forthwith in this case. The provisions of Section 437A Cr.P.C. shall be complied with.. 17. Let a copy of this order be sent to the trial court concerned. Appeal allowed.