Allahabad High Court
Punni And Ors. vs State Of U.P. on 21 May, 1999
Equivalent citations: 1999CRILJ4641
Author: B.K. Sharma
Bench: B.K. Sharma
JUDGMENT B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 29-11-1980 passed by Sri Sanwal Singh, the then VIth Additional Sessions Judge, Etawah in S.T. No. 406 of 1978 State v. Punni and 5 others, whereby he convicted the accused-appellants Punni, Munshi, Saligram, Sultan, Ram Murti and Ram Bharose of the offence under Section 399, I.P.C. and sentenced seven of them to undergo R.I. for a period of 4 years, convicted each of one them of the offence under 402, I.P.C. and sentenced them to undergo R.I. for a period of 2 years and further convicted each one of them of the offence under Section 27 of the Arms Act and sentenced them to undergo R.I. for a period of 6 months and the sentences were ordered to run concurrently.
2. Heard counsel for the parties.
3. The prosecution story, briefly stated, was that on 15-10-1977, when Ram Charan Singh S.O. and Gaya Prasad, A.S.I. posted at police station Sikanderpur Vesh, District Etah, were together in the circle, the S.O. received information from a reliable informer that the gang of Punni Habda could assemble in the grove of Pandit Lakhan Singh of Rani Damar at about 1.00 a.m. in the night for committing dacoity and would loot Nagla Karan, that thereupon the S.O. and A.S.I. called for Neksey and Sri Pal witnesses from Nagla Abdal along with their licensed fire arms through constable Bhanwar Singh and taking them went towards Rani Damar and after reaching near Rani Damar, called Ram Prakash PW 2, Ranvir, Dev Singh and Soran Singh witnesses from that place, that out of them, Ram Prakash PW 2 was a licence holder, that after it they reached near the Kotha of Pradhan and told the witnesses about the purpose of calling them and mutual search was also taken to ensure that no one had any illicit weapon with him, that then two parties were formed by the S.O., party No. 1 in his leadership which also included Ram Prakash PW 2 and Party No. 2 in the leadership of Gaya Prasad A.S.I. PW 1 in which there were some members of the police force and some public witnesses, that after necessary instructions were given by the S.O, the two parties reached near the grove of Lakhan at 11.00 p.m. and there party No. 1 took position towards East of the grove in the Aar of Mend and Party No. 2 took position towards the North of the grove in the Aar of Khanyee and they started waiting for the arrival of the dacoits, that after some time some dacoits entered in the grove and sitting in it started smoking Biri and cigarette and conversing with each other, that one of the dacoits was over heard saying, "NAGLA CHHOTA HI HAL USTAD NAHIN AAYE HAIN DARNE KI KOYEE BAT NAHIN HAI CHALO CHALKAR LOOT LENGEY," that from it the two police officers got satisfied that it is a gang of dacoits assembled for the purpose of committing dacoity and preparing to commit dacoity, that the S.O. challenged the dacoits that they are under siege and commanded them to surrender their weapons and themselves telling them that in case they tried to run or did not surrender their weapons, they would be done to death, that at that time Hajari Singh, head constable fired a V.L.P. shot which created a flood of light due to which the dacoits started running helter and skelter and both the police parties- raided them and arrested all the 6 accused appellants at the spot while three of their companion managed to escape, that they disclosed their names to the police and on search being taken, one gun and 8 live cartridges were recovered from Punni accused appellant, one Tamancha and 4 live cartridges were recovered from Munshi accused-appellant, one Tamanch and 5 live cartridge and one torch were recovered from Saligram accused-appellant, one Tamancha and 3 live cartridges were recovered from Sultan accused-appellant, one Bhala and a torch were recovered from Ram Murti accused appellant, for which they had no licence and a Lathi of Bamboo was recovered from the possession of Ram Bharose accused-appellant, that the recovered articles were sealed in separate bundles and the recovery memo was prepared at the spot, that besides this, half burnt pieces of Biries and match sticks were collected from the spot and sealed in a separate bundle, that the empty cartridge of the V.L.P. was also recovered from the spot, that thereafter the police party returned to the police station and chick report was prepared on 16-10-1977 at 10.00 a.m. on the dictation of Ram Charan Singh S.O. and on the basis of the same a case was registered under Sections 399/402, I.P.C. and seperate cases were registered under Section 25 of the Arms Act and Section 4/25 of the Arms Act. The accused persons were committed to the Court of Session after the filing of the charge sheets and then they were convicted and sentenced at the trial as aforesaid.
4. The ocular evidence at the trial has been given by Gaya Prasad A.S.I. PW 1 who was the leader of Party No. 2 and Ram Prakash village Pradhan (PW 2) who was the member of Party No. 1 headed by the S.C. Both the witnesses have testified to the prosecution story as aforesaid. The I.O. was not examined at the trial so that the site plan and other papers regarding investigation were formally proved by the Gaya Prasad A.S.I. PW 1 himself. All the accused persons denied the spot arrest and the recoveries and they claimed that they have been arrested from their houses and false recoveries have been planted on them. They claimed that the Thakurs of the village used to take Begar from them and on their declining to comply with their demand got them falsely implicated. The defence further was that due to enmity, Ram Bharose accused-appellant could not join hands with Munshi and Ram Murti accused-appellant. In respect of this last plea, evidence were led from the side of Ram Bharose accused-appellant. He examined himself and also filed certified copy of the chick report dated 6-11-1976 under Section 429, I.P.C. relating to Crime No. 101 lodged by Smt. Kalawati (mother of Ram Bharose accused-appellant) against Fatua, Munshia, Chandana and Hariya about an incident dated 27-11-1976 in which Munshia accused was the same as Munshi accused in the present case. He also filed copy of chick report dated 16-1-1977 lodged by Fulwari (father of this accused-appellant) against Daya Ram, Ram Chandra, Fatua and Budhwa for the offence under Sections 452, 323, I.P.C. about an incident dated 15-1-1977. The chick report contained the averment that the informant and his son have been brought to the police station in their injured condition.
5. Now there are some very important features worth notice in the present case. The S.O. Ram Chandra Singh who was the architect of this raid and recovery has not entered the witness box. The prosecution also did not examine the investigating officer of this case at the trial. Further, though as per the prosecution story, the dacoits were 9 in numbers and 4 of them were armed with fire arms and cartridges and one of them was armed with Bhala and another with a Lathi (leaving out whatever weapons the three of their companions might be having none of the dacoits is said to have fired a single shot in the transaction nor is there any allegation of the infliction of a single injury on the body of any of the members of the police force or the public witnesses in the transaction. The dacoits are said to have been caught at the spot without any resistance or struggle on their part. This Court feels handicapped due to the absence of the investigating officer from the witness box. The site plan prepared by the I.O. has been proved by Gaya Prasad, A.S.I. PW 1 unless all the witnesses in the trial are hostile, it is, the bounden duty of the prosecution to produce the investigating officer at the trial. Anyhow, the site plan prepared by the investigating officer shows that the grove of Lakhan Singh where the dacoits are said to have assembled and prepared to commit dacoity and were arrested along with their weapons etc. was surrounded on three sides by groves. In the north, there were groves of Ram Dayal and Mauji Ram and in the West, there was another grove of Lakhan Singh and a grove of Rasid and in the South, there were groves of Sone Lal and Umashanker and besides these, there were fields of Sonelal, Ram Dayal Har Dayal and Jiwa in the Eastern side, None of these grove holders or land holders are said to have been present in the grove at the time of occurrence.
6. As noted earlier, the F.I.R. of this case was dictated by the S.O. Ram Charan Singh at the police station but the S.O. did not enter the witness box for the reasons best known to the prosecution. Technically, it is only the S.O. who could be contradicted with reference to the contents of the F.I.R. dictated by him, however it cannot be lost sight of that in the FIR the prosecution case was that the S.O. Ram Charan Singh, A.S.I. Gaya Prasad PW 1 and other police force including Hazari, head constable are said to be returning with the S.O. towards the police station after making investigation in two criminal cases and that in the way in village Nagla Abdal, information was received from an informer that the dacoits are going to assemble in the grove of Lakhan Singh and would commit dacoity in Nagla Karan at 3.00 a.m. The prosecution has not proved the entry of the G.D. of the police station about the departure of the S.O. and the police force from the police station in the said investigation Gaya Prasad A.S.I. PW 1 testified in his examination in chief that he had gone for investigation and petrol duty along with S.O. Ram Charan Singh and that at 8.00 p.m. information was received from the informer that a gang of dacoits would assemble in the grove of Lakhan Singh at 1.00 a.m. in the night. In his cross-examination he stated in para 17 that he did not correctly remember as to on what date and at what time, he made his departure from the police station and that he did not also recollect whether his departure was recorded in the G.D. separately or along with others. After that, he stated in para 18 of his evidence that S.O. Ram Charan Singh had met him in Dehaat (i.e. in the circle). He could not tell in which village or on what time they had met each other. He also could not tell as to at whose house they met each other. It means that the S.O. was going in connection with some other work and this witness (A.S.I.) was going separately on some other work and that by chance, they met each other in the circle. This statement itself casts a shadow of doubt on the prosecution story apart from the other factors which we have noted. Furthermore, this witness has stated in para 18 of his evidence that Hazari Singh, head constable had met him near village Sanaudi were there was police outpost and that from there the said Hazari Singh head constable joined them i.e. the S.O. and the other witness Gaya Prasad A.S.I. As against this, the case in the F.I.R. was that Ram Charan Singh S.O. this witness (Gaya Prasad A.S.I.) and head constable Hazari Singh and other policemen had made departure together from the police station in connection with the investigation in two criminal cases. Hazari Singh, head constable has not been examined at the trial. This also creates doubt in the mind.
7. In the F.I.R., the S.O. claimed about the information from the informer was that dacoity will be committed in Nagla Karan at 3.00 a.m. but Gaya Prasad A.S.I. PW 1 did not testified to the giving of any such information by the informer. This also creates some doubt in the mind.
8. Gaya Prasad, A.S.I. PW 1 claimed in his cross-examination that in the process of arrest, the arrested accused would have received Danda blows on their body, however, there is no medical evidence on record to show that any of the accused persons have received injuries. There is also no G.D. entry of the police station to corroborate this claim made by the witness. Here it may be mentioned that in the testimony of Ram Prakash Pradhan, PW 2, there is absolutely no mention that any of the arrested accused persons have been given any lathi blows in the entire transaction.
9. Ram Prakash PW 2 is Pradhan of village Rani Damar. He did not claim to have received any injury in the transaction that could have corroborate his evidence at the trial. He of course denied the defence suggestion that is wanted to take Begar from the accused persons and got them falsely implicated in this case when they-refused to oblige and even claimed that he did not know them from before. However, in view of the circumstances discussed earlier, no implicit reliance can be placed over his testimony. One circumstance has been placed on record from the side of the defence. It is that Smt. Kalawati wife of Fulwari and mother of Ram Bharose accused appellant had lodged a F.I.R. at the police station Sikanderpur Vesh under Section 429, I.P.C. at 12.10 p.m. on 26-11-1976 against Fatua and Munshiya sons of Behari, Chandana and Hariya, Residents of Village Narethi about an incident dated 25-11-1976 at 5.00 p.m. in which two hens and 3 chickens belonging to Smt. Kalawati were killed and thrown on the Chura. Ram Bharose, accused-appellant has entered the witness box and testified that Smt. Kalawati was his mother and that Munshi who was named in the said F.I.R. under Section 429, I.P.C. was the same who is Munshi accused-appellant in the present case and that he is real brother of Fatua another accused named in that F.I.R. by Smt. Kalawati. He further testified that the said case under Section 429, I.P.C. is still pending. No challenge has been made by the prosecution to this statement on oath by this accused-appellant, consequently, it becomes doubtful that even while that criminal prosecution was pending Munshi accused-appellant would join hands with Ram Bharose accused-appellant for committing dacoity. This circumstance tends to show that the transaction set up by the prosecution was fictitious and that actually the prosecution had bundled up all the 6 persons from here and there cooked up a story of their assembling and making preparation for committing dacoity and their spot arrest with weapons.
10. Another circumstance placed on record from the side of Ram Bharose, accused-appellant is that he and his father were beaten by Daya Ram, Ram Chandra, Fatua and Budhwa on 15-1-1977 and that in respect of it, his father Fulwari had lodged a first information report at the police station. A copy of this chik report lodged on 16-1-1977 at 11.15 a.m. by Fulwari is on record. It is under Sections 452 and 323, I.P.C. which was recorded against Daya Ram, Ram Chandra, Fatuwa son of Behari (real brother of Munshi accused-appellant) and Budhwa. Ram Bharose accused-appellant had testified that the said Ram Chandra nominated in the F.I.R dated 16-1-1977 is real brother of Ram Murti present accused-appellant. This part of his testimony has not been challenged in cross-examination by the learned State Counsel. It is true that it has been elicited from him in his cross-examination that the prosecution of Ram Chandra and Daya Ram on the aforementioned report of Fulwari has since been compromised. However, the prosecution did not elicit from him whether this compromise had taken place before the present occurrence or after the present occurrence. It may be mentioned here that the testimony of Ram Bharose accused-appellant was given on 28-11-1980 while the spot arrest and recovery of the accused-persons not up to prosecution in the present case was in the night between 15/16-10-1977. That being so, there appears substance in the defence plea that the accused-appellant Ram Bharose could not have joined hand, with Munshi and Ram Murti accused-appellant for committing dacoity. This also tends to show that the accused-appellants have been bundled together by the police and implicated in this case carving out a case of assembly and preparation to commit dacoity.
11. For the reasons aforesaid, it is impossible to sustain the conviction of the accused-appellants made by the learned Sessions Judge. The appeal is, therefore, allowed. The conviction and sentence of the accused-appellants Punni, Munshi Saligram, Sultan, Ram Murti and Ram Bharose for the offences under Sections 399/402, I.P.C. and for the offence under Section 27 of the Arms Act is set aside. They are acquitted of the same. Out of them, Punni and Munshi accused-appellants are in custody, their bails having been cancelled by this Court for non-appearance. They shall be released forthwith unless required in connection with some other case or crime. The remaining accused-appellants Saligram, Sultan, Ram Murti and Ram Bharose are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged.
12. Let a copy of this judgment be sent to the Sessions Judge Etah at once for information and compliance. Compliance report shall be submitted by him to this Court within 10 days from today. This appeal shall be listed for orders before this Bench on 5-7-1999 along with the compliance report.