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Mewa Ram & Others v. State Of U.P. - CRIMINAL APPEAL No. 2635 of 1980  RD-AH 3712 (2 March 2007)
Criminal Appeal No. 2635 of 1980
1. Mewa Ram ( died)
2. Ram Ratan ( died)
3. Khalil (died)
4. Biri Singh.........................................................Accused
State of U.P...........................................................Respondent
Hon'ble M. Chaudhary, J.
This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 17th of November, 1980 passed by IV Additional Sessions Judge, Agra in Sessions Trial No. 92 of 1980 State vs. Mewa Ram & others convicting the accused under sections 399 and 402 IPC and sentencing each of them to rigorous imprisonment for three years on each count and also convicting accused Mewa Ram under section 3/25 of the Arms Act and accused Ram Ratan, Khalil and Biri Singh under section 4/25 of the Arms Act and sentencing each of them to undergo one year's rigorous imprisonment thereunder.
Since accused appellants Mewa Ram, Ram Ratan and Khalil were reported having died, appeal filed on their behalf stood abated vide order dated 11th of November, 2005.
Brief facts giving rise to this appeal are that on 19th of September, 1979 SI Netra Pal Singh was posted at police outpost Saudagar Line, police station Sadar Bazar, District Agra. At about 10:00 p.m. that day he received an information that at about 12:00 midnight some six bandits would assemble in the field of Mohan milkman near the grove of Khushal Das to commit dacoity at the house of some Jatav at village Sohalla. Believing that information SI Netra Pal Singh went to police station Sadar Bazar and informed Circle Officer, Sadar over telephone. According to the directions he alongwith the police personnel taking arms and ammunition reached near Tourist Office at 11:00 p.m. Mahavir, Amar Nath and Munna were picked up as public witnesses. SI Netra Pal Singh divided the police personnel and the public witnesses in three parties. First party was headed by SI K.D. Tewari, second by SI Netra Pal Singh himself and third party by SI R.S. Katheria. After giving necessary instructions to all the parties SI Netra Pal Singh alongwith the police personnel and the public witnesses proceeded to the field of Mohan milkman situate near the grove of Khushal Das, and first party took position in the grove of Khushal Das situate to the east of field and second party by the side of drain towards west. Third party took position at the back of Hathi Hathini grave towards south. At about 12:00 midnight some five bandits came from the Mall Road and sat in the field of Mohan milkman towards west from the Neem tree and started talking with each other smoking biris and cigarettes. About half an hour thereafter one of them spoke that Chhitaria had not reached till then and since Sohalla was quite far away they should proceed for committing dacoity. Thereon SI Netra Pal Singh got convinced that it was a gang of dacoits who were assembled there and ready to proceed to commit dacoity. Immediately SI Netra Pal Singh challenged them that they were already in police cordon and if they would try to run away they would be shot dead, and the police personnel flashing torches pounced upon the bandits and apprehended four of them on the spot. One of the bandits succeeded in making his escape good and could not be recognized. On being enquired four persons arrested told their names Mewa Ram, Ram Ratan, Khalil and Biri Singh and their addresses. Their personal searches were taken and one SBBL gun and five live cartridges were recovered from the possession of Mewa Ram and one knife of prohibited blade from the possession of each of the remaining three. SI K.D. Tewari prepared recovery memo of the arms and ammunition recovered from the possession of each of the bandits arrested on the spot and the same were sealed in separate packets. They also collected half burnt pieces of matchsticks and remnants of biris, cigarettes etc and sealed them in a packet. Then the police personnel taking all the four bandits apprehended and sealed packets of arms and ammunition etc. went to police station Sadar Bazar where SI Netra Pal Singh lodged an FIR of the said occurrence at 2:30 a.m. the same night. The police registered crime against all the four accused and one another accordingly. Investigation of the crime was entrusted to SI Shiv Shanker Lal who after investigating the crime and obtaining necessary sanction to prosecute accused Mewa Ram under section 25 of the Arms Act submitted charge sheets against the accused accordingly.
After framing of charge against the accused the prosecution examined SI R.S. Katheria( PW 2), Mahavir Singh ( PW 3) and SI Netra Pal Singh ( PW 4) as eye witnesses of the occurrence. PW 1 HC Nawab Singh who recorded FIR of the case at the instance of SI Netra Pal Singh and made entry regarding registration of the crime in the GD proved these papers ( Exts ka 2 & ka 3). PW 5 SI Shiv Shanker Lal Shukla who investigated the crime and after obtaining necessary sanction submitted charge sheets against the accused proved the police papers.
The accused pleaded not guilty denying their arrest by the police at the time and place as alleged by the prosecution. Accused Biri Singh denied alleged recovery of knife from his possession.
Relying on the evidence adduced by the prosecution the learned trial judge held the accused guilty of the charge levelled against them and convicted and sentenced them as stated above.
Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress.
Heard Sri R.D. Singh, learned counsel for accused appellant Biri Singh and Sri A.K. Jain, learned AGA for the State respondent.
After going through the impugned judgment and record of the case, the court is reluctant to accept the finding of conviction recorded by the court below against the accused appellant for the following reasons:
First, according to SI Netra Pal Singh when he was on patrol duty he received an information that some 5-6 bandits would assemble in the field of Mohan milkman at about 12:00 midnight to commit dacoity at the house of some Jatav at village Sohalla. Admittedly village Sohalla fell within the limits of police station Mallpura but he did not inform the police of police station Mallpura thereabout. Further, admittedly at that time SI Netra Pal Singh was posted at police outpost Saudagar Line and SI R.S. Katheria at police outpost Lal Kurti and SI K.D. Tewari at police station Sadar Bazar. It has not been brought on the record as to how SI R.S. Katheria happened to be present at the police station at the relevant time while he was posted at police outpost Lal Kurti.
Secondly, the police personnel did not make any effort to collect public witnesses from the locality of Namner where alleged occurrence was anticipated though admittedly there were some huts in the south of the grove of Khushal Das and some 15-20 persons used to reside there. Out of three public witnesses picked up by the police Mahavir Singh used to reside at Willian Ganj, Munna at Sultanpura and Amar Nath at Latoorpura. The police personnel could have very well picked up 2-4 persons residing in the same locality i.e. Mohalla Namner from where the alleged arrests and recoveries were anticipated.
Thirdly, PW 3 Mahavir Singh stated in his cross-examination that the two constables picked him up and Munna from Keters Hotel as he had gone there in the rickshaw of Munna to have tea. This witness Mahavir Singh resided in house no. 736 Willian Ganj and used to run a shop of general merchandise at Sadar Bazar situate at a distance of one km from Keters Hotel. It does not appeal to common sense that a person aged about 40 years who resided in his own house and used to run a shop of general merchandise would go in a rickshaw to have tea at a hotel all alone at 11:00 p.m. Hence this witness Mahavir Singh is no better than a got up witness.
Fourthly, PW 2 SI R.S. Katheria stated that some five bandits who came from Mall Road sat in the field of Mohan and at 12:30 midnight SI Netra Pal Singh challanged them and the police personnel in three parties flashing torches pounced upon the bandits and caught hold of four bandits namely Ram Ratan, Mewa Ram, Khalil and Biri Singh. However, he nowhere stated if any talks took place between the bandits sitting in the field and if so, as to what talks transpired between them. A perusal of the site plan map goes to show that the place where third party took position was at a distance of some 85 paces from the place where the bandits were allegedly assembled . Thus the testimony of PW 2 SI R.S. Katheria is of no use to the prosecution as there is nothing in his statement to show that the bandits allegedly apprehended by the police at that place were assembled there making preparation for committing dacoity. Likewise, PW 3 Mahavir Singh , the public witness stated that he heard the bandits talking that Chhitaria had not reached with taxi and they were getting late as they had to reach Sohalla and should proceed immediately. From these talks it is not revealed that those persons were assembled there making preparation for committing dacoity.
Lastly, PW 4 SI Netra Pal Singh stated in his cross-examination that copy of any of the recovery memos was not given to any of the accused apprehended on the spot. A perusal of the recovery memos goes to show that the recovery memos do not bear signatures or thumb impressions of the accused appellants concerned in token of having received copy of the recovery memo. Obviously, copies of the recovery memos were neither prepared nor furnished to the accused. It is evidently in violation of relevant provisions of the Code of Criminal Procedure. If the law requires a thing to be done then it is to be done in the manner prescribed by law. Said omission is fatal for the prosecution case as it becomes all the more doubtful if any of the accused was apprehended on the spot or any incriminating article was recovered from the possession of any of them at all.
In view of the above incongruities and infirmities in the prosecution case and evidence implicit reliance can not be placed on the evidence furnished by the prosecution. Benefit of doubt is therefore extended to accused appellant Biri Singh and he is entitled to acquittal.
The appeal is allowed and impugned judgment and order convicting accused appellant Biri Singh under sections 399 and 402 IPC and section 4/25 of Arms Act and sentencing him thereunder is hereby set aside. Accused appellant Biri Singh is hereby acquitted of the charge levelled against him.
Judgment be certified to the Court below.
Dated: 2nd of March, 2007
Crl Appeal No. 2635 of 1980
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