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Mewa Ram & Others v. State Of U.P. - CRIMINAL APPEAL No. 2635 of 1980 [2007] RD-AH 3712 (2 March 2007)


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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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