Allahabad High Court
Ram Singh & Others vs State on 1 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 15 Case :- CRIMINAL APPEAL No. - 110 of 1988 AFR Appellant :- Ram Singh & Others Respondent :- State Counsel for Appellant :- Sri Sarvesh,Sanjay Srivastava,Vishal Jaiswal Counsel for Respondent :- A.G.A Hon'ble Arvind Kumar Mishra-I,J.
By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 12.01.1988 passed by the Special Judge (Dacoity Affected Area) Kanpur Dehat, in Special Trial No.224 of 1986 under Sections 399, 402 IPC, Session Trial No.225 of 1986 under Section 25 Arms Act, Session Trial No.226 of 1986 under Section 25 Arms Act and Session Trial No.7 of 1987, under Sections 399, 402 IPC, Police Station- Ghatampur, District- Kanpur Dehat whereby the appellants have been sentenced to three years rigorous imprisonment under Section 399 IPC and three years rigorous imprisonment under Section 402 IPC, whereas, appellants Ram Singh and Jai Narain have been sentenced to undergo one year rigorous imprisonment under Section 25 Arms Act. All the sentences have been ordered to run concurrently.
Heard learned counsel for the appellants, learned AGA for the State and perused the record.
Relevant facts giving rise to this appeal, as discernible from the records, appear to be that on the tip off information to the Police Station Ghatampur, District Kanpur Dehat, the informant S.I. Bhupendra Pal of Police Station Ghatampur proceeded towards village Naveri within vicinity of the Police Station Ghatampur, and also availed two public witnesses Badan Singh and Jagroop Singh and they formed two police parties and kept on waiting for miscreants to appear on the spot. As per the tip off information in village Naveri around 12:15 a.m. in the night intervening 28/29.10.1986, four miscreants namely Ram Singh, Jai Narain, Ram Bilas and Bind Pal were apprehended on the spot and on search being made, illegal countrymade gun and cartridges were recovered from possession of the two accused Ram Singh and Jai Narain. They were asked about authority to keep the weapons but they could not show any such authority and they were arrested and memo of arrest was prepared by the police on the spot and the recovered weapons were kept under seal by the police. The police personnel came back to the Police Station Ghatampur where a report was lodged by S.I. Bhupendra Pal Singh at Case Crime No.430 of 1986 under Sections 399, 402 IPC, at Case Crime Nos. 431 and 432 of 1986 under Section 25 Arms Act against the aforesaid two accused.
The relevant entries were noted down in the concerned check FIR at Police Station Ghatampur, on 29.10.1986 at 03:50 a.m. at Case Crime No.430 of 1987 under Sections 399, 402 IPC, at Case Crime Nos.431 and 432 of 1986 under Sections 25 Arms Act and relevant entries were also made in the concerned general diary of date, copies whereof are Ext. Ka-4 and Ext. Ka-5, respectively.
Pursuant to the lodging of the first information report, the investigation ensued and the same was taken over by the Investigating Officer Sharda Prasad Tripathi PW-8. His testimony is indicative of fact that during course of the investigation, he noted relevant entries made in the concerned Check FIR and relevant general diary and also recorded statement of the informant and the other police personnel who accompanied the police party to the village Naveri. He also prepared site plan Ext. Ka-7. During course of the incident, the four other accused who were said to have absconded at the time of raid/encounter by the police from the village Naveri were named as Dev Narain, Indal, Ram Sewak and Gyanendra were apprehended and their identification parade was also conducted under supervision of Sri G.P. Thapaliyal PW-6, the Executive Magistrate where the informant and other police personnel duly identified these four accused. Thereafter, their statement was also recorded and after completing the investigation, charge sheets were filed by the Investigating Officer against the present appellants under aforesaid Sections of IPC and Arms Act as Ext. Ka-8, Ext. Ka-9, Ext. Ka-10, and Ext. Ka- 13 respectively.
As a sequel to it, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial to the aforesaid trial court of Special Judge, (Dacoity Affected Area), Kanpur Dehat who in turn heard both the prosecution and the accused on point of charge and was prima-facie satisfied with case against the appellants, accordingly, framed charges under Sections 399, 402 IPC and also against accused Jai Narain and Ram Singh under Section 25 Arms Act. Charges were read over and explained to the appellants who abjured charges and opted for trial.
In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 8 witnesses. A brief sketch of witnesses is as under:-
Bhupendra Pal Singh PW-1 is the informant and head of one of the police parties under whose supervision, four accused were apprehended and recovery of the weapons was made from their possession in the village Naveri. S.I. Ahibaran Singh PW-2 accompanied the police party. Badan Singh PW-3 is an independent witness to the fact of arrest and recovery although he has denied fact of any arrest being effectuated and recovery being made before him by the police in the village Naveri. S.I. Lalji Verma PW-4 is the police personnel accompanied the police party to the village Naveri after tip off information. Similarly Babban Ji Pathak PW-5 police personnel also accompanied the police party. Sri G.P. Thapaliyal PW-6, Executive Magistrate has proved identification parade of the aforesaid four accused who were apprehended subsequently in this case and kept under detention. Constable Dev Shankar PW-7 has proved relevant entries made in the concerned Check FIR and general diary of date 28/29.10.1986 at 00:15 hours at aforesaid crime number. Except as above, no further evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed.
Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. wherein they have claimed their innocence and stated that they have been falsely implicated in this case. No evidence, whatsoever, has been led by the appellants.
The case was heard on merit by the learned Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction and awarded sentence vide impugned judgment and order dated 12.01.1988.
Consequently, this appeal.
It has been urged on behalf of the appellants that entire case is one based on no independent testimony of any person/witness who may testify the fact of arrest of the appellants and recovery of the countrymade gun along with cartridges from them in the night intervening 28/29.10.1986 in the village Naveri. The police has deliberately slapped false recovery of weapon with a view to work out false case which fact stands exposed by absence of any corroboration from any independent source - say public witness that too produced by and on behalf of the police in shape and form of Badan Singh PW-3 who has not supported the prosecution version.
It has been further claimed that another public witness Jagroop Singh has been withdrawn by the prosecution and not produced before the trial court. This by itself is admission on the part of the police that they tried to create false evidence against the present appellants by producing a public witness but he refused to testify to the fact of arrest and recovery as claimed by the police in the night intervening 28/29.10.1986. This entire incidence becomes dubious.
It has been further claimed that once the accused were arrested apprehended/apprehended they were previously shown to the police personnels who took part in the identification parade and cannot claim that they never saw faces of the arrested accused prior to the identification parade. Since the police was interested in false implication, therefore, everything in line was tried to be given legal shape but reality stood exposed in absence of any independent corroboration. Neither any public witness nor Badan Singh PW-2 was asked to identify the subsequently arrested/apprehended accused - appellants.
It has been claimed that the trial court was oblivious of the aforesaid vital aspects of the case and it erroneously believing merely statement of the police personnel and primarily the informant and his colleagues blindly returned the finding of conviction which is erroneous, perverse and not sustainable in the eye of law.
Per contra, learned AGA has supported the impugned judgment and submitted that testimony of the independent witness Badan Singh PW-3, on the whole, is indicative of fact that he was taken by the police after tip off the information was received at Police Station Ghatampur and he accompanied the police party and he also laid ambush with the police personnnels near Pani Ki Tanki in the village Naveri in the night intervening 28/29.10.1986 when encounter took place in his presence but for some extraneous ulterior reasons, he deliberately desisted in not telling the entire truth before the trial court for which fact alone, it cannot be said that there is no independent corroboration of the factum of arrest and recovery so alleged against the appellants is mischievous.
Moreover, the Executive Magistrate PW-6 has impartially conducted the identification parade under his supervision and the police personnel have rightly identified the subsequently arrested four accused and what else was required to be proved by the police and the prosecution. The trial court has judiciously recorded conviction and has awarded appropriate sentence.
Also considered the rival submissions and taken into consideration the rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Sections 399, 402 IPC and 25 Arms Act was committed by the appellants and the prosecution has proved charge under Sections 399, 402 IPC and 25 Arms Act beyond reasonable doubt?
Bare perusal of the first information report is indicative of fact that on the tip off information, the police personnel formed two police parties and proceeded towards village Naveri where they kept on waiting for miscreants to arrive on the spot and around 00:15 hours on 29.10.1986, when the accused arrived - the police challenged assailants, whereupon some stampede was created and few assailants fled away from the scene, whereas, the four accused Ram Singh, Jai Narain, Ram Bilas and Bind Pal were arrested and on search being made, countrymade gun and cartridges were recovered from possession of Ram Singh and Jai Narain. Subsequently, memos of arrest and seizure were prepared on the spot and the accused along with recovered articiles were taken to the Police Station Ghatampur where report was lodged at Case Crime No.430 of 1986 under Sections 399, 402 IPC, at Case Crime Nos.431 and 432 of 1986 under Section 25 Arms Act, on 29.10.1986 at 3:50 a.m. at Police Station Ghatampur, District Kanpur Dehat.
Thereafter, the case was investigated into by Sharda Prasad Tripathi PW-8 who has detailed various steps he took in preparation of the site plan besides recording statement of various witnesses, effectuating arrest of the remaining absconders, participating and facilitating identification of the subsequently arrested accused and ultimately he filed charge sheets after completion of the investigation.
After thoughtful consideration of the entirety of the testimony adduced by the prosecution and particularly, testimony of Bhupendra Pal Singh PW-1, S.I. Ahibaran Singh PW-2, S.I. Lalji Verma PW-4 and Babban Ji Pathak PW-5, it appears that all of them supported claim of the police that on the tip off information, the police formed two police parties and proceeded towards village Naveri and arrested four accused and effectuated recovery of countrymade gun and cartridges from two of the aforesaid four accused and the case was registered against them. Insofar as this claim is concerned, though doubt cannot be expressed regarding claim made by the police, but a cautious approach need be observed while considering the case from view point of independent corroboration.
However, the factum of corroboration was itself safeguarded by the informant by arranging Badan Singh PW-3, independent public witness, who was taken by the police and he accompanied the police up to the spot near Pani Ki Tanki, in the village Naveri where the incident took place. The place of incident was proved by the Investigating Officer vide site plan Ext. Ka-7 where each spot has been indicated and marked by specific alphabets as to what happened and what transpired over there. The place of occurrence has been marked by word 'A' where the incident took place and other markers in the site plan are indicative of various other aspects of the incident prior to and subsequent to the incident. Another public witness Jagroop Singh also accompanied the police party and was present on the spot at the time of encounter.
However, perusal of testimony of Badan Singh PW-3 is itself indicative of fact that no arrest, whatsoever, was effectuated in his presence. May be that PW-3 was won over by the accused and may be that he testified before the trial court that he already accompanied the police but after he took U-turn and did not support the factum of arrest of the accused, it was incumbent upon the police to have produced another public witness Jagroop Singh whose name finds place among the prosecution witnesses in the charge sheet but for the reason best known to the prosecution, he has not been produced before the trial court. This way, there is no corroboration of factum of arrest of the accused from the spot and seizure from possession of the accused. The claim so made by learned counsel for the appellants is justified that once the police took public witness with them then independent corroboration must have come forth but independent corroboration by availing public witness has boomeranged which aspect, on the whole, nullifies claim of the police party that any arrest was made by them on the spot in village Naveri in the night intervening 28/29.10.1986. The claim of the appellants that they were arrested from their homes by the police sounds well and authenticity of the incident itself becomes dubious.
Analysis and serious scrutiny of record takes this Court to conclusion that lot of doubts are created because of inconsistent description of the prosecution witnesses when compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge appears to be erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case which renders the order of conviction and sentence not justified under facts and circumstances of the case. The prosecution was not able to prove its case beyond reasonable doubt. Absence of independent corroboration of factum of arrest by any independent source hits at the root of the case.
In criminal jurisprudence, it is settled principle of law that testimony and circumstances of the case must positively point out guilt of the accused beyond reasonable doubt and in case evidence when taken together vis-a-vis facts and circumstance of the case, in absence of independent corroboration appears to be shaky, vacillating and full of improvements then charges framed against the accused will lose its legal significance and the accused will be entitled for acquittal. In this case, there is no worthy evidence which may connect the accused with the commission of the crime but the trial court while taking stock of merit of the case overlooked this factual aspect and erroneously recorded finding of conviction and awarded sentence against the appellants under Sections 399, 402 IPC and 25 Arms Act which conviction and sentence is not sustainable in the eye of law.
Therefore, the judgment and order of conviction dated 12.01.1988 passed by the Special Judge (Dacoity Affected Area) Kanpur Dehat, in Special Trial No.224 of 1986 under Sections 399, 402 IPC, Session Trial No.225 of 1986 under Section 25 Arms Act, Session Trial No.226 of 1986 under Section 25 Arms Act and Session Trial No.7 of 1987, under Sections 399, 402 IPC, Police Station- Ghatampur, District- Kanpur Dehat, is set aside.
Consequently, the present appeal is allowed.
The appellants are acquitted of charge under Sections 399, 402 IPC and 25 Arms Act.
In this case, the appellants are on bail. They need not surrender before the court below. Their bail bonds concelled and sureties discharged. However, the appellants shall ensure compliance of Section 437A Cr.P.C.
Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.
Order Date :- 01.02.2018 rkg