Allahabad High Court
State Of U.P. vs Brij Basi on 6 February, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 51 Case :- GOVERNMENT APPEAL No. - 2255 of 1985 Appellant :- State of U.P. Respondent :- Brij Basi Counsel for Appellant :- A.G.A. Counsel for Respondent :- S.K. Tewari Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Gautam Chowdhary,J.
Heard Sri Nafees Ahmad, learned A.G.A. for the State, Sri S.K. Tewari, learned counsel for the accused-respondents and perused the impugned judgement of acquittal and record of the appeal.
By way of instant Government Appeal, leave to appeal has been sought by the Government against the judgement and order of acquittal dated 18.05.1985 passed by the then Ist Addl. Sessions Judge, Mathura, in S.T. No. 82 of 1984 and S.T. No. 83 of 1984, under Sections 147, 148, 307, 149, 412 I.P.C. and Section 25 Arms Act, Police Station - Surir, District - Mathura, whereby the accused-respondents Brij Basi, Mohar Singh and Man Singh have been acquitted of the charges under the aforesaid sections.
Succinctly, facts of the case, as discernible from perusal of record, appears to be that an oral report was lodged at Police Station - Surir, District - Mathura at F.I.R. No.186/1983 on 29.12.1983, of a police encounter which took place between the S.O. of the aforesaid police station and the accused-respondents, in the night intervening of 28/29.12.1983, wherein three accused were nabbed on the spot, while four accused made their escape good from the scene. The three apprehended accused were taken into custody, after heavy firing having been done by the assailants, to which the police retaliated by resorting to firing. The apprehended accused were Brij Basi son of Gajadhar, from whose possession, a rifle 303 bore numbering 72560 with two loaded cartridges were recovered. The another apprehended accused was Mohar Singh son of Gajua, from whose possession also, a musket numbering 6943 of .410 bore along with two live cartridges from his shirt's pocket were recovered. The third one was Man Singh, son of Shiv, from whose possession a country-made gun .12 bore along with 2 cartridges were recovered. It was stated that after checking, the police party came across the miscreants, who were 7-8 in number and on being challenged by the police to stop, they started firing, however, the police in retaliation, also opened fire on them, while they were fleeing away and in the process, they nabbed the aforesaid three accused on the spot and recovered the aforesaid rifle, musket and the country-made gun, respectively along with cartridges from their possession. The matter was reported at the aforesaid police station at 05:00 a.m. in the morning of 29.12.1983.
The investigation of the case ensued and it was handed over to S.I. Kaji Sirajuddin, the I.O. of the case, who, after having investigated the case, submitted charge-sheet against the accused-respondents, whereupon all the three accused, namely, Brij Basi, Mohar Singh and Man Singh, were charged under Sections - 148, 307/149, 412 I.P.C. Apart from that, they were also charged under Section - 25 of the Arms Act. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.
The prosecution, in order to prove guilt of the accused and substantiate charge against them, produced its witnesses viz. Kashi Ram Sharma and Ranvir Singh as P.W.1 and P.W.2, respectively.
Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section - 313 Cr.P.C., wherein specific submission was made by the accused that they were apprehended from their houses and on account of village partibandi, they have been deliberately involved in this case by the police.
The trial court after vetting the evidence and appraising the facts of the case, was of the view that as per the description regarding the police encounter, since there was no injury caused on either side, say, the accused and the police side, though heavy firing took place on the spot, the theory of police encounter did not accept the prosecution version and the story set up by the prosecution was found dubious. Consequently, it was not acted upon. Similarly, the factum of recovery of the rifle and the musket, as mentioned aforesaid, was also not found to be a correct one, in view of the fact that the information regarding the recovery of the aforesaid rifle and musket was not given to the superior police officers, although the matter was serious. This casts shadow of doubt on the claim of recovery of aforesaid two weapons.
In the wake of aforesaid backdrop of this case, contention is that it is not certain in all eventuality that, there was heavy firing, it must have resulted in causing injury to any person. But the fact is that the police personnel were saved and so were the assailants and this fact would not, ipso-facto, make out a situation for negating the ocular testimony of the prosecution witnesses, who though are the police personnel themselves, cannot be disbelieved normally on account of their being the informant side. Their testimony, like other ordinary witnesses, is to be scrutinised applying the law applicable and there is nothing inconsistent emerging from their testimony, which would lead to the conclusion that such incident resulting in police encounter and the consequent recovery of the rifle and the musket ever took place in the intervening night of 28/29.12.1983.
We have considered the various aspects of this case and the theory as set up in the first information report (Ex.Ka.2), whereby the police party is stated to have been attacked by heavy firing from the assailants side, who were as many as 7 to 8 in number and it is quite surprising that after 7-8 persons opened heavy fire on the police party consisting of various policemen, they did not sustain even a single gun shot wound or pellet injury and so was the case with the assailants because as per the testimony and the first information report itself, on being challenged by the police, the miscreants turned back and began to run away from the scene, whereupon firing was done by the police party also, still not a single injury was caused to the miscreant side and out of 7-8 persons, three persons were apprehended on the spot. Under these specific circumstances, the conclusion drawn by the trial court cannot be faulted with as the attendant facts and circumstances of a case cannot be bypassed on analogy alone, though the testimony of a witness can be for reason of he being interested one. Here the circumstances create doubt regarding the actual occurrence as to how it occurred, wholesome of the incident does not inspire confidence.
Secondly, the factum of possession of the rifle and the musket - as to how the two accused came into possession of the same-remains in abysmal silence and no worthy, credence and creditable evidence has been recorded by the prosecution in that regard, which particular aspect also casts doubt on the point of actual recovery and it appears that the recovery was planted by the police in order to make out an easy case of recovery of the lost rifle and the musket in question.
Consequently, this appeal lacks merit and the leave to appeal is refused.
Resultantly, the appeal fails and the same is liable to be dismissed.
Ordered accordingly.
Order Date :- 6.2.2020 S Rawat