Allahabad High Court
Udai Narain And Others vs State Of U.P. on 25 January, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 15 AFR Case :- CRIMINAL APPEAL No. - 1808 of 1986 Appellant :- Udai Narain And Others Respondent :- State Of U.P. Counsel for Appellant :- Aditya Narain Tiwari,Pramod Kumar 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 judgement and order dated 18.06.1986 passed by Ist Additional Sessions Judge, Etawah in Sessions Trial No. 205 of 1984 (State Vs. Udai Narain and another) connected with Sessions Trial No.205A of 1984 (State vs. Jai Narain), arising out of Case Crime No.115, Police Station- Bakewar, District- Etawah, whereby the appellants- Jai Narain and Ram Darshan- have been convicted and sentenced to undergo 1 year R.I., 3 years R.I. and 1 year R.I. under Sections 148, 307 read with Section 149 IPC and Section 25(i)(a) India Arms Act, respectively. All the sentences have been directed to run concurrently.
Appropriate to mention that during the course of appeal appellant no.1 Udai Narain expired, therefore, his appeal stood abated against him vide order of this Court dated 05.12.2017.
Brief facts of the prosecution case, as discernible from record, is that the appellants were caught by the police on 08.04.1984 at 12.45 A.M. at the place, 10 to 15 steps towards southern side of the Mahuwer Devi temple within the vicinity of village Andawa in police circle Bakewer, district Etawah by the first informant- S.I. S.N. Mishra and colleagues, who formed a raiding party. As per the first information report, Exhibit Ka-2, the report was lodged at Police Station- Bakewar at 03.45 A.M., the very same day (08.04.1984) at case crime no.115 of 1984, under Sections 147, 148, 149, 307 and under Section 25 Arms Act. Allegations have been made to the import that on the tip off information received around 10 P.M. in the night 7.4.1984 that a gang of Udai Narain and Ajeetmal gang comprising of 8 to 9 persons, is present near Mahuwer Devi temple within the vicinity of village Andawa. This information was also sent to another police station- Ajeetmal, district- Etawah and extra force was sought through RT Set, and two police raiding party was constituted one under supervision of the informant S.I. S. N. Mishra (P.W.1) and the another party was headed by S.I. Rampal Singh, consisting of force of police station Ajeetmal. They proceeded towards the Mahuwer Devi temple and on being pointed out by the Mukhbir, and the police party also noticed presence of some persons near Mahuwer Devi temple, challenged the miscreants, whereupon, the miscreants fired on them, but the police party somehow escaped unhurt. The police in retaliation and self defence opened fire, which created stampede amongst the miscreants. They tried to run away to ensure their escape from the spot, however, they were chased at a distance of 15 to 20 steps towards southern of the temple. The police party caught three miscreants (Udai Narain, Ram Darshan and Jai Narain) around 12.45 A.M. on 08.04.1984. On inquiry being made the name of the present three appellants were disclosed. The police recovered certain arms and live cartridges and empty cartridges from their possession and in the torch light prepared the memo of arrest and seizure and took the appellants along with the recovered goods/arms to the police station- Bakewer and lodged the report around 03.45 A.M. On 08.04.1984, which was noted at case crime no.115 of 1984 under aforesaid sections of Indian Penal Code and Arms Act.
The investigation ensued and was taken over by S.I. R.N. Shukla P.W.3, who inspected the spot after recording the statement of the informant and the concerned Constable and after noting contents of the FIR and the concerned G.D. Prepared site plan (Exhibit ka-4) and also obtained sanction for prosecution of the appellants from District Magistrate, Etawah. Order of District Magistrate, Etawah in respect of the sanction against all the three appellants are Exhibit Ka-5 to Exhibit Ka-7.
Upon completion of the investigation, charge-sheets (Exhibit Ka.8 to Ka. 11) were filed against the appellants under aforesaid sections of Indian Penal Code and Arms Act. The committal proceeding took place and the case of the appellants was transferred to the court of First Additional Sessions Judge, Etawah after numbering the case of the appellants as Sessions Trial No.205 of 1984, which was State Vs. Udai Narain and another and the connected Sessions Trial No.205 A of 1984, State Vs. Jai Narain. Both the Sessions Trials were connected, therefore, the same were disposed off by the common impugned judgement in question.
The appellants were heard on the point of charge and they were charged under Sections 148, 307 read with Section 149 IPC and under Section 25 read with Section 3- A of the Arms Act. Charges were read over and explained to the appellants, who abjured the charges and opted for trial.
The prosecution produced in all three witnesses. The first two witnesses, namely, S.N. Mishra (P.W.1) and Mahabir Singh (P.W.2), respectively, are police personnel of the raiding party and of whom S.N. Mishra P.W.1 is the informant and eye-witness and Mahabir Singh P.W.2 was also one of the members of the raiding party and he is also an eye-witness. R.N. Shukla P.W.3 is the Investigating Officer of this case.
Evidence for the prosecution was closed and statement of the accused were recorded under Section 313 Cr.P.C., wherein they have pleaded not guilty and termed their implication false due to enmity. Jai Narain and Ram Darshan have stated that they were arrested by the police from their houses.
No other testimony was adduced, thereafter the evidence of the defence was closed and arguments were heard and after considering the entire facts and circumstances of the case and evaluation of evidence on record, the trial court entered finding of conviction and sentenced the appellants under the aforesaid sections of Indian Penal Code, which paved way for this appeal before this Court.
Heard Sri Pramod Kumar, learned counsel for the appellants (Ram Darshan and Jai Narain) and Sri B.D. Nishad and Sri Sushil Kumar, learned AGAs for the State and Sri Rajiv Lochan Dwivedi, learned brief holder for the State and perused the record of this appeal.
It has been succinctly claimed on behalf of the appellants that the entire gamut of testimony on record, vis-a-vis facts and circumstances of the case, when taken together as a whole do not form any coherence and do not give any consistent view of the incident that it occurred in the manner and style claimed by the police/informant side, the entire story is concocted, fabricated and outcome of mischievous mind of the informant and his colleagues. It is admitted fact that though the tip off information, regarding presence of the present appellants near Mahuwer Devi temple around 10 P.M. at police station- Bakewer, to S.N. Mishra (P.W.1), but no worthy efforts were made to arrange independent witness so that action of the police may be said to be fair and carrying some veracity and element of truth to believe the same in its totality. Absence of independent witness despite availability of sufficient time, casts aspersion on the claim of the police party that they raided near Mahuwer Devi temple around 12.45 and caught the appellants. Next contended that act of firing has been imputed against the appellants, but no injury, whatsoever has been caused on the police raiding party. This aspect by itself is an independent circumstance, which suggests that no such incident ever took place. The court below while considering the merit and evaluating the testimony of the prosecution witnesses failed to take note of the fact that no consistent reply on any relevant point pertaining to arrest and seizure of appellant has been given by the prosecution witness in cross-examination and they have skipped important questions put to them by the defence and the witnesses have tried to do away with the correct information, which was required of them- for the reason that they being the police personnel, fairness in action was required as a measure of caution.
Learned AGA has supported the conviction and sentence awarded against the appellants and has submitted that there is no specific reason to falsely implicate the appellants by the police party. Two police parties were formed consisting of police personnels of two separate police stations, and merely because there was no independent witness to verify arrest of and seizure of arms from the appellants, that would by no means throw away the case of the prosecution. Appeal lacks merit.
Also considered the rival submissions.
The moot point arises for adjudication of the appeal relates to fact whether the prosecution has been able to prove the charges levelled against the appellants beyond reasonable doubt against the appellants?
The genesis of the entire episode is based on tip off information regarding presence of the miscreants near Mahuwer Devi temple. This information was received at the police station- Bakewar by S.N. Mishra P.W.1 around 10 P.M. On 07/08.04.1984 when extra police force was sought from another police station- Ajeetmal by conveying message through RT Set, thereafter two raiding police parties were constituted one under S.I. S.N. Mishra of police station- Bakewar and another under S.I. Rampal of Police Station Ajeetmal. Both acting in concert conducted raid near the temple, where miscreants were sighted and challenged, whereupon firing was done by the miscreants on the police party, but police party somehow escaped unhurt. The police party also fired on the accused /miscreants in self- defence, whereupon miscreants were terrified and they tried to fled away from the scene. The police force by chasing the appellants at some pace away towards southern side of the temple caught three miscreants against whom the proceedings were drawn, which ultimately resulted into their conviction.
Admitted position in this case is that the tip off information was received around 10 P.M. on 07.04.1984 and it has emerged in the testimony of the informant- S.I. S.N. Mishra (P.W.1) that they tried to avail independent witnesses from Andawa village, but no one was ready to stand witness to the fact of arrest of the miscreants, however, he did not ask name and addresses of these persons. Contention so raised by the appellants that this much is possible that police tried to arrange witnesses, but the witnesses were not ready to cooperate with the police and police could not know the names and addresses of these persons. This was fatal for the police and no such name or address has been mentioned in the police record, which renders the entire incident/encounter dubious and the veracity of the claim so made by the police stand exposed which poses question mark on the point of raid being made and arrest effected. Contention has been raised to the magnitude that fact is that in the concerned police station a number of crimes were committed and the police force was unable to work out these cases/crimes and in order to facilitate easy work out, police deliberately roped in, the present appellants in this case and slapped false recovery of Arms after they were arrested from their houses. The police never arrested the appellants from the spot. The contention, so raised is sustained for the reason that no independent witness was arranged though enough time and resource was available to the police. How and why the police party failed to obtain and note names and addresses of such persons, who were asked by the police to stand witness to the process of raid and apprehension of appellants on the spot within the vicinity of village Andawa. The police party could not obtain names and addresses of such persons raises serious doubt on the fairness and bonafides of the process of raid conducted. This inaction and suggestion on the part of police hits to the root of the prosecution case and destroys authenticity and veracity of the prosecution witnesses.
In such a situation, it was required of the police party by way of abundant caution to have ensured fairness of their action and must have heeded to the relevant provisions contained in the Cr.P.C. for meeting such eventuality like the present one.
All the three prosecution witnesses, namely, S.N. Mishra P.W.1, Mahabir Singh P.W.2 and R.N. Shukla P.W.3- are police personnels, therefore, corroboration of some independent nature was required to be placed on record to give credence to their act which, is woefully wanting. It means persons from Andawa village were not contacted by the police. Consequently, the contention, raised by the learned counsel for the appellants carries for and the same is upheld. A shadow of doubt is created regarding incident (of arrest and seizure) cannot be said to be the actual incident, which occurred around 12.45 A.M. On 08.04.1984 near Mahuwar Devi temple in the vicinity of village Andawa and the manner and style of the incident becomes dubious.
Consequently, the surviving appellants (Ram Darshan and Jai Narain) cannot be convicted under aforesaid sections of Indian Penal Code i.e. 148, 307 read with section 149 IPC and Section 25(i)(a) Indian Arms Act. The court below was not conscious of the aforesaid particular aspects particularly the fact that the police force in spite of being in a position to arrange independent witnesses was always in a position to note down at least the names and addresses of the persons, who were interrogated by it for being witnesses to the incident, but they expressed their willingness to stand witness to the fact of arrest of the appellants. Thus, the entire incident becomes dubious and the authenticity of police action is put to question.
In view of above, this appeal is allowed and the impugned judgement and order of conviction dated 18.06.1986 passed by Ist Additional Sessions Judge, Etawah in Sessions Trial No. 205 of 1984 (State Vs. Udai Narain and another) connected with Sessions Trial No.205A of 1984 (State vs. Jai Narain), arising out of Case Crime No.115, Police Station- Bakewar, District- Etawah is hereby set aside. Appellants- Ram Darshan and Jai Narain- are acquitted of all charges framed against them.
Appellants are on bail. They need not surrender. Their bail bonds are hereby cancelled and sureties discharged. However, they will comply with the provisions of Section 437-A Cr.P.C.
Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.
Order Date :- 25.01.2018/Raj