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2017 DIGILAW 1080 (ALL)

RAMBIR SINGH v. STATE OF U. P.

2017-04-21

KRISHNA MURARI, RAVINDRA NATH KAKKAR

body2017
JUDGMENT Hon’ble Ravindra Nath Kakkar, J.—This criminal appeal has been preferred against the judgement and order dated 17.2.1983 passed by the Special Judge (Dacoity Affected Area), Agra in S.T. No. 4 of 1982 convicting and sentencing the appellants as under Section 399 IPC for two years RI, under Section 402 IPC for four years RI, further convicting under Section 25 Arms Act for a period of one year RI. 2. The prosecution story as emanates from FIR and the evidence of the prosecution witnesses in brief is that on 7.12.1982 at 3.25 P.M. Sri Parasuram Yadav, S.H.O. Fatehpur Sikri police station accompanied with Sub Inspectors and constables left for patrolling on a Government jeep. Sub Inspector Sri Bhagwan Singh accompanied by three police constables also left separately for patrolling from the police station. Approaching the brick kiln at village Jaingara, both the police teams joined each other. The team of Sri Bhagwan Singh proceeded further with the team under the supervision of Station House Officer Shri Parasuram Yadav. When they reached at culvert (puliya) of the village Chaikora, an informant met and gave a tip-off that the Vedram Gang of village Gyara comprising 6 to 7 dacoits would assemble at ‘Chaikora Ki Dharmshala’ at around 8.00 pm and would commit dacoity somewhere. Taking this information to be reliable, the police formed two teams; wherein Shri Parasuram Yadav was made incharge of one team and Sri Surajpal Singh of the other team. Members of both the teams ensured to each other that they did not have any illegal article in their possession. Thereafter, Sri Parasuram Yadav allotted role to each member of both the teams as to where and how they would hide themselves. They also tried to secure a public witness, but they could not find anyone from the area around them being a jungle. Both teams reached the ‘Chaikora Ki Dharmshala’ at 7.25 O’clock and hid behind at the decided places. The team headed by Sri Parasuram Yadav hid themselves west of the Dharamshala and other team under the in-charge of Sri Surajpal hid themselves east of the Dharamshala. About 15-20 minutes later, four persons reached there from the south and seated themselves in the Dharamshala. They began talking with one another and smoking beedis and cigarettes. One of them said, “ Our boss with his associates has not arrived yet. About 15-20 minutes later, four persons reached there from the south and seated themselves in the Dharamshala. They began talking with one another and smoking beedis and cigarettes. One of them said, “ Our boss with his associates has not arrived yet. The village Chaikora is mainly inhabited by Jat community. Hence, it will be difficult to commit dacoity there.” They kept talking with one another in the same way. After around 15 minutes, two persons came there and started talking with them as well. One of them said, “We are sufficient and also have plenty weapons. Let us proceed and commit dacoity.” They agreed on this point. As soon as they stood up and proceeded for committing dacoity, Shri Parasuram Yadav used his torch light on them, challenged and commanded them to surrender. On that point of time, six persons tried to fled away from the spot towards the south. They were chased at about 15 paces towards south of the Dharamshala, both the police teams caught hold of four persons but two miscreants managed to give a slip to them. It was around 7.50 O’clock, some of the police personnel gave a chase to fleeing dacoits but they could not be apprehended. The apprehended four persons stated their names to be Vedram, Rohan Singh, Ummed Singh and Ramvir. They were thoroughly searched. A single barrel gun bearing No. 284 M of Oril and Company make with No. 2088, Webley pattern was recovered from the possession of Vedram. A belt of nivar/patta (collar) was found girdled around his waist, wherein there were eight cartridges of 12-bore, KF special which included five cartridge of 4 number and three cartridges of 2 number. Besides, a packet of beedi as also a matchbox was recovered from left pocket of his shirt. From the possession of Rohan Singh, a single barrel 12 bore gun and a black raxine belt tied around his waist were recovered; wherein there were 7 live cartridges of 12 bore KF Special, which included four cartridges of 1 number and three cartridges of 4 number. A cigarette packet of Panama and a match box were also recovered from his right pocket of pant. A cigarette packet of Panama and a match box were also recovered from his right pocket of pant. From the possession of Ummed Singh a 12 bore country made pistol and from his left shirt pocket, 5 live 12 bore cartridges, KF Special which included two cartridges of 2 number, one cartridge of three number, one cartridge of 1 number and one cartridge of 1 number were recovered. From the possession of Ramvir, a 315 bore country made pistol and from his right shirt pocket 2 brass cartridges and an empty brass cartridge were recovered. A khaki colour bag was also recovered from his possession in which an Eveready torch with two cells and another Jeep torch with three cells in a working condition, a scimitar (Kripan), badge and whistle tied with string were recovered. The recovery memo for all these recovered articles were prepared at the spot, which is marked as (Exhibit-Ka-1). The incriminating articles recovered from the possession of each of the accused were sealed in separate bundle. Stubs of Beedi, cigarette and matchsticks were also recovered from the place, which were also sealed at the spot. Accused persons were kept baparda and were brought to the police station by the police teams. On the basis of the recovery memo, First Information Report (Exhibit-Ka-2) was written and the case was registered in general diary, the true copy of same is marked as (Exhibit-Ka-3). The investigation of this case was conducted by Sub Inspector Sri Shishupal Singh, who prepared a memo (Exhibit-Ka-5) on the basis of torches in the possession of police. Sri Shishupal Singh inspected the place of occurrence and prepared the site plan, which marked as (Exhibit-Ka-6).After completion of the investigation, charge-sheet had been filed against the accused persons, which is marked as (Exhibit-Ka-7 to Exhibit-Ka-11). Investigating Officer Sri Shishupal Singh for the prosecution of all the four accused persons under Section 25 Arms Act sent four applications, which is marked as (Exhibit-Ka-12 to Exhibit-Ka-15) in office of the District Magistrate, Agra. After receiving the approval to prosecute them through paper (Exhibit-Ka-16 to Exhibit-Ka-19), charge-sheet under Section 25 Arms Act has been submitted before the concerned Magistrate. 3. The learned trial Judge framed the charges under Sections 399, 402 IPC and 25 Arms Act against the accused persons Vedram, Rohan Singh, Ummed Singh and Ramvir. All accused pleaded to be not guilty and claimed trial. 4. 3. The learned trial Judge framed the charges under Sections 399, 402 IPC and 25 Arms Act against the accused persons Vedram, Rohan Singh, Ummed Singh and Ramvir. All accused pleaded to be not guilty and claimed trial. 4. In support of its case prosecution produced Sub Inspector PW-1 Shri Bhagwan Singh, Sub Inspector PW-2 Shri Kailash Chandra, Station Officer PW-3 Shri Parasuram Yadav and Sub Inspector PW-4 Shri Shishupal Singh. 5. P.W. 1 Shri Bhagwan Singh had stated that on the day of occurrence, he alongwith three constables was on patrolling in the area and when he reached brick kiln of Jaingara, he came across Sri Parasuram Yadav and others, who were coming on a Government jeep. He further stated that Station Officer Parasuram Yadav and his team moved together and when they reached near the culvert of village Chaikora an informant informed about the assembly of an armed gang and on being convinced with the fact that four accused persons were plotting to commit dacoity, they were intercepted and arrested whereas the two other members managed to escape from the spot. He further stated that the single barrel gun factory made was recovered from Vedram with 8 cartridges of 12-bore from the belt of nivar/patta (collar) tied around his waist. A single barrel gun (SBBL) from the possession of Rohan Singh and 7 cartridges from a black raxine belt tied around his waist, a cigarette packet of Panama mark and a matchbox was recovered. He further stated that from the possession of Ummed Singh a country made pistol and 5 cartridges were recovered and from the possession of Ramvir 315-bore country made pistol, two brass cartridge of 315-bore and an empty brass cartridge were recovered. The witness also stated about the recovery of khaki colour bag from the possession of Ramvir, which contained two torches, a scimitar (Kripan), a hat, two badges and whistle tied with strings. It transpires from his evidence that before laying a siege to the Dharamshala after forming two police teams, they have made ‘jama talaashi’ of each other to ensure that none of them are having illegal article with them. 6. Sub Inspector-PW-2, Shri Kailash Chandra corroborated the evidence of Shri Bhagwan Singh and stated about the on-the-spot arrest of all four accused persons and the recovery of arms of different kinds and cartridges from their possession. 6. Sub Inspector-PW-2, Shri Kailash Chandra corroborated the evidence of Shri Bhagwan Singh and stated about the on-the-spot arrest of all four accused persons and the recovery of arms of different kinds and cartridges from their possession. He further supported the prosecution version by stating that the team under the charge of Sub Inspector Shri Surajpal also took part in laying a siege to the Dharamshala and Shri Surajpal Singh led the team No. 2. 7. PW-3 Station Officer Shri Parasuram Yadav narrated the prosecution story in detail and supported the prosecution version as alleged in the First Information Report. He also stated that all the four accused persons were apprehended from the occurrence spot and arms and cartridges were recovered from their respective possessions supporting the testimony of PW-1 Shri Bhagwan Singh. 8. PW-4 Shri Shishupal Singh, Investigating Officer who recorded the statements of the witnesses stated that the torches of Shri Parasuram Yadav, Shri Surajpal Singh and Shri Bhagwan Singh were in working condition and these torches were given in the custody of these persons. This witness has proved the memo (Exhibit-Ka-5) prepared in relation to these torches. He also inspected the place of occurrence and prepared the site plan (Exhibit-Ka-6) and after completing the investigation, he has submitted the charge-sheets (Exhibit-Ka-7 to Exhibit-Ka-11) under Sections 399/402 IPC and under Section 25 Arms Act against the accused persons. He also stated that a report seeking sanction for prosecution under Section 25 Arms Act was given to the District Magistrate and on the basis of the recovery memo and case diary, the District Magistrate had allowed prosecution for the offence. This witness has proved the application (Exhibit-Ka-12 to Exhibit-Ka-15) and sanction for the District Magistrate marked as (Exhibit-Ka-16 to Exhibit-Ka-19). 9. After hearing learned counsel for the parties and going through the evidence brought on record, the learned trial Court believed the prosecution case and convicted and sentenced the appellants as mentioned above. 10. We have heard learned counsel for the appellant-accused and learned A.G.A. for the State. 11. The learned counsel for the appellants-accused pointed out at the very outset that one of the appellant Ummed Singh son of Rattani of Criminal Appeal No. 402 of 1983 and the appellants-accused Vedram and Rohan Singh of Criminal Appeal No. 514 of 1983 have died pendente lite. Their appeals were abated vide order dated 14.2.2017. 11. The learned counsel for the appellants-accused pointed out at the very outset that one of the appellant Ummed Singh son of Rattani of Criminal Appeal No. 402 of 1983 and the appellants-accused Vedram and Rohan Singh of Criminal Appeal No. 514 of 1983 have died pendente lite. Their appeals were abated vide order dated 14.2.2017. Consequently, now the appeal of the surviving appellant Ramvir Singh is to be considered. 12. Assailing the impugned judgement of conviction learned counsel for the appellant-accused argued that the entire prosecution story is a bundle of lies and does not inspires any confidence, therefore, cannot be given any credence. He further contended that a gang of dacoits will never assemble at an open place like varanda of Dharamshala in order to conspire in a loud voice as to be audible to each and sundry. 13. It was next submitted that from the entire evidences, facts and circumstances of the case, it transpires that prosecution has failed to establish its charges against the appellant and he deserve to be acquitted. The statements of the police witnesses, namely, PW-1 Bhagwan Singh, PW-2 Shri Kailash Chandra and PW-3 Shri Parasuram Yadav do not inspire confidence so much so as to fix guilt upon any of the accused on trial on the basis thereof because they all are police witnesses and in support of the statements none of the independent public witness has been produced. The explanation tendered by these witnesses are highly improbable and there is inconsistency in the oral testimony. Learned counsel for the appellant while referring to the testimonies of PW-1. Sub Inspector Sri Bhagwan Singh, PW-2 Sub Inspector Shri Kailash Chandra and PW-3 Station House Officer Sri Parasuram Yadav has submitted that there were inconsistencies in the respective depositions regarding associating independent person to witness out come of the raid. He further submitted that even if all the allegations leveled against the appellants are taken as such, they do not constitute the commission of offences under Sections 399 and 402 IPC, even the offence under Section 25 Arms Act was not made out as none of the appellants from whom these weapons were recovered have used the same in assaulting and causing of the injuries to the raiding party. 14. 14. On the other hand, learned A.G.A. has supported the judgment of conviction passed by the trial Court and submitted that at the time of occurrence the appellants were apprehended at the spot by the police party, who had no axe to grind against them and therefore, the conviction is unassailable and has to be affirmed. He further submitted that all the accused persons belong to a gang of dacoits and they have assembled at the spot with the intention to commit dacoity and it is a case of preparation to commit dacoity and therefore, no clemency should be shown to the appellants and the conviction and sentence ought to be confirmed. 15. Having heard learned counsel for the parties and after going through evidence available on the record, we would first like to mention that it is trite law for the prosecution to establish its case beyond all shadows of reasonable doubts. On the other hand, it is also settled legal proposition that only on the basis of the prosecution witnesses being a police personnel cannot constitute a reason to discard or discredit their testimonies. In the light of this cardinal principle, we find that PW-1, PW-2 and PW-3 are all police witnesses of the prosecution whereas the trial Court was informed all above referred glaring illegalities and inconsistencies. The legal propositions required that it should have been examined with utmost care and cautious rather than accepting pedantic ignoring the criticism without any valid reasons. Now turning to evidence of the informant as well as the supporting prosecution witnesses, we find that it does not inspire confidence. During incident not even a single shot was fired by the dacoits even when they were being chased. This itself is a very unnatural conduct which does not appeal to reason at all. In respect of the recovery of country made pistol and other fire-arm weapon from the possession of accused, the evidence in that respect is also very incredible and does not inspire any confidence. The Investigating Officer did not examine the said weapon either himself or from an expert to verify whether they are in working condition or not. In respect of the recovery of country made pistol and other fire-arm weapon from the possession of accused, the evidence in that respect is also very incredible and does not inspire any confidence. The Investigating Officer did not examine the said weapon either himself or from an expert to verify whether they are in working condition or not. On over all analysis of the entire facts and circumstances of the case, it appears that in order to work out the previous dacoity case, these appellants were apprehended by the police for the best reasons known to them and were implicated in the present incident without there being any credible evidence against them. This Court from perusal of the recovery memo finds that incriminating material and illegal weapons does not bear the signature of accused on it. Although signature of an accused on the recovery memo is not the mandatory requirement of the law. It is only the signature of the witnesses, which are necessarily required. But if the defence version is that the appellants-accused were arrested and no such incriminating article or illegal weapons had been recovered from them then it has got relevance in order to ensure the presence of the accused persons alongwith the witnesses on the spot. Again this Court finds that the secret information was said to be received at 6.45 PM and the two police teams surrounded the Dharamshala in order to arrest the accused persons at about 7.15 PM and as per prosecution version four accused persons reached the Dharamshala and sat on veranda at about 7.15 PM and thereafter two other accused persons arrived and while waiting for the gang leader they conspired to commit dacoity. But when the gang leader did not reach the Dharamshala, all six accused persons armed with weapons stood up. Then the Station House Officer, leader of one of the police party exhorted under the torch light and accused persons were arrested with illegal weapons and incriminating articles. It is highly improbable for the secret informer to know the person who belonged to different villages and they shall assemble for preparation to commit dacoity. The informer had not specified in his information the place where the dacoity is conspired to be committed. There are inconsistencies and contradictions in the statements of all the prosecution witnesses as to which place the dacoits were to commit dacoity. The informer had not specified in his information the place where the dacoity is conspired to be committed. There are inconsistencies and contradictions in the statements of all the prosecution witnesses as to which place the dacoits were to commit dacoity. PW-1 Shri Bhagwan Singh stated that the secret information from the informer was of committing dacoity in Choukhara area whereas PW-2 stated that the informer gave information to the effect that the dacoit will commit dacoity at village Choukhara. On this point PW-3 stated that the informer had only given the secret information that the dacoit will assemble at Dharamshala and commit dacoity. No place was specified him. Further it would be pertinent to mention here that after receiving the secret information from the informer at 6.45 PM, the police party in order to give effect to the arrest of the accused persons reached Dharamshala at 7.15 PM. The evidence of use of torch by police personnel to inspect Dharmashala before assembling of accused persons is found to be highly improbable and doubtful as it is a prosecution case that four accused persons had assembled at 7.15 PM in veranda of the Dharmashala. Further as we have already observed that in spite of accused being armed with deadly weapons, they have not used their weapons to retaliate the police raid. That circumstance itself is a question mark on the whole prosecution story. It is also relevant to mention that as per prosecution story there were six accused persons but only four of them have been arrested and two accused persons, who were supposed to be armed with deadly weapons had ran away from the spot and there had not been use of the weapons either from the police party or from the accused party. This is another circumstance to create doubts in prosecution story. Further, we find from the evidence on record that the place of occurrence itself is not consistent in the testimonies of the three police star witnesses vis-a-vis in the statement of the Investigating Officer. It transpires from the fact witnesses that before apprehending the accused persons, the police personnel hide themselves behind bushes but the Investigating Officer in his site plan Exhibit Ka-6 had not mentioned the bush behind which the police personnel stated to have been present. It transpires from the fact witnesses that before apprehending the accused persons, the police personnel hide themselves behind bushes but the Investigating Officer in his site plan Exhibit Ka-6 had not mentioned the bush behind which the police personnel stated to have been present. Likewise contradiction is on the point that who conducted the search of the accused and recovered the illegal weapons. PW-3 stated that he alone searched and recovered illegal weapons from the possession of the accused persons while rest of the other prosecution witnesses stated otherwise. Likewise, there is inconsistency with regard to the taking of independent witness alongwith the raiding team. PW-2 admitted that passengers were seen traveling near the place of occurrence but due to paucity of time and non availability of pedestrian on road, attempt to take independent public witness could not be made but it transpires from the prosecution evidence that the Dharamshala is near village at a distance of half kilometer. Further, we find that area around Dharamashala was in total darkness, no source of light either inside or nearby has been stated by any of the witness. Further, as we have already observed that it is highly doubtful that the persons who are meeting for preparation of committing dacoity would speak so loudly that their conversation could be heard from a distance. The place of occurrence is stated to be Dharamshala, which is adjacent to the road and half kilometer away from the village, hence it is difficult to believe that accused would assemble at such a conspicuous place with intention to plan committing a dacoity and would take such a great risk. 16. In such view of the matter, we find that there is no legal evidence to support the charge under Section 399/402 IPC against the appellants as there is no evidence on record as to what was the distance from where the prosecution witnesses had heard the conversation going on among the appellants. It is also doubtful that they were speaking so loudly that their conversation could be over heard. These facts and circumstances as drawn out from the evidence of the prosecution would clearly indicate that they were not telling the truth and the possibility could not be ruled out that the appellants were apprehended on the basis of suspicion and later they were falsely booked for the offence under Sections 399/402 IPC. 17. These facts and circumstances as drawn out from the evidence of the prosecution would clearly indicate that they were not telling the truth and the possibility could not be ruled out that the appellants were apprehended on the basis of suspicion and later they were falsely booked for the offence under Sections 399/402 IPC. 17. In view of the above it is not possible to sustain the conviction of appellants under Sections 399, 402 IPC and under Section 25 Arms Act. Therefore, the conviction and sentence of the appellants under Sections 399/402 IPC and under Section 25 Arms Act cannot be sustained. Concluding the discussions, we are of the considered view that the prosecution has failed to establish its case beyond all reasonable doubts and the appellants are entitled to be acquitted. 18. The appeal is allowed. The conviction of the appellant Ramvir under Sections 399/402 IPC and under Section 25 Arms Act are hereby set aside and he is acquitted from all these charges. The appellant is on bail. He need not surrender. His bail bonds and sureties bonds are hereby discharged. 19. Let the certified copy of this judgement alongwith lower Court record be sent to trial Court for information and necessary compliance.