Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : For Sustaining Conviction U/s 399, 402 I.P.C. Evidence Has To Be Of An Unimpeachable Character-appeal Allowed-conviction Set Aside.
JUDGEMENT TITLE : Hoti And Others Vs. State. On 21/03/2012 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1337 OF 1981
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved
AFR

CRIMINAL APPEAL NO. 1337 OF 1981

Hoti And Others ............. Appellants

Vs.

State Of U.P. .................... Opposite Party

Hon'ble Vinod Prasad, J.
Five Appellants Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh And Durjan, Being Aggrieved By Their Convictions Under Sections 399/402 I.P.C. And Imposed Sentence Of Four Years And Three Years RI Respectively Therefor, Recorded By IIIrd Additional Session's Judge, Mathura In S.T. No. 228 Of 1980, State Vs. Hoti And Others, Have Challenged It In The Instant Appeal. Appellants Hoti, Hari Singh And Ram Bharose @ Bhagwan Singh Have Further Challenged Their Convicted Under Section 25 Arm's Act And Imposed Sentence Of One Year RI For The Said Offence. Trial Judge Has Directed All The Sentences Of These Appellants To Run Concurrently. Appellant Bhopal Singh Has Challenged His Conviction U/s 399/402 I.P.C. And His Release On Probation Of Good Conduct For A Period Of Two Years On His Executing A Personal Bond Of Rs. 2,000/- And One Surety In The Like Amount With Further Direction That, In The Event Of Breach, He Shall Appear Before The Court For Receiving Sentence Whenever He Is Called Upon For The Said Purpose.
Prosecution Allegations, As Was Narrated In The Arrest And Recovery Memo, Ext. Ka-1, Sketched By S.I. Jai Pal Singh Of P.S. Vrindaban, District Mathura, Were That The Said Inspector Was On Picket Duty Regarding Identification Of Sensitive Polling Booths For The Ensuing Election Along With S.I. Jawahar Singh, S.I. Sobran Singh And Constables Kamal Singh, Ram Singh And Rajendra Singh On 11.5.80. When The Said Police Party Was Proceeding Towards Chhathikara Then, At Trisection Of Chhathikara And Parkham, An Informer Informed Them That In The Pen(tiwaria) Of Maghera Pyau Situated At Ral Road, Some Armed Dacoits Had Assembled To Loot Roadster(Tonga) And Other Passengers. Receiving Such An Information, Informant Jai Pal Singh (P.W. 2) Joined Police Constables Nem Singh, Suresh Chandra, Who Were Manning The Traffic And Dispatched Them To Collect Independent Witnesses From Village Chhathikara. After Some Time, These Constables Brought Moti Lal Pradhan, Banke Bihari And Brij Bihari, As Independent Witnesses, From The Said Village. Disclosing The Reason For Their Summoning, Police Party Along With Those Witnesses Proceeded Towards The Incident Spot From Village Chhahtikara All Along Railway Line And Near The Line They Searched Each Other To Rule Out Carrying Of Any Illegal Weapon Etc. Except The Weapons Issued By Government Weaponry. Thereafter, I.O. Divided The Police Party Into Three Pickets. First Party Consisted Of Informant Jai Pal Singh, Constable Suresh Chandra And Moti Lal Pradhan. Second Party Consisted Of S.I. Jawahar Singh, Constables Nem Singh And Kamal Singh And Independent Witness Brij Bihari. Third Party Consisted Of S.I. Sobran Singh Along With Constables Ram Singh, Rajendra Singh And Witness Banke Bihari. The Police Personnel Were Armed With Revolvers And Muskets, Whereas Independent Persons Were Armed With Clubs(lathies). All The Three Parties Were Instructed That Party No.1 Shall Surround The Incident Place From North East, Party No. 2 Shall Surrounded It From Back Of Pen And Party No. 3 Shall Approached It From South West Corner And They Will Lay In Ambush At 1 P.M. All The Parties Were Further Instructed Not To Open Fire Unless Challenged By The Informant. All The Three Parties Concealing Them Behind The Agricultural Crop, Crossed The Railway Line And Laid In Ambush, At 3.30 P.M, At The Directed Spot And Started Hearing Conversations Of The Miscreants. One Of The Miscreants Uttered That It Was Noon Time And Very Few Passengers Are Coming And, Therefore, The Next Female Passengers Of Roadster Be Looted From Whom Good Bounty Can Be Fetched. Another Dacoit Expressed Apprehension That The Road Is At Quite A Distance From Where They Were Planning And By The Time They Will Reach The Road, Tonga (roadster) May Speed Away, And A Third Dacoit Seconded This View And, Therefore, All The Dacoits Got Up From The Place For The Road. Believing The Collected Conglomeration To Be A Gang Of Dacoits, Assembled To Commit Dacoity, That The Inspector Jai Pal Singh, Challenged The Gang To Lay Down Their Arms, As They Were Surrounded By The Police And, In The Event, They Will Exchange Fire Or Try To Sprint Away, They Will Be Annihilated. On Such Thrown Challenge, There Was Commotion Amongst Dacoits, Who Started Sprinting Away Towards The Road, But Were Chased By The Police Party And Four Out Of Them, Hoti, Hari Singh, Ram Bharose @ Bhagwan Singh And Bhopal Singh (all The Appellants) Were Apprehended At Quarter To 2 P.M. One Of The Dacoit Durjan Jatav, Who Was Very Well Known To The Police Party, However, Made His Escape Good From The Spot And Could Not Be Arrested. From The Possession Of Hoti, A SBBL Gun And Four KF Special Cartridges And Two LG Cartridges With One Blank Cartridge Were Recovered. From Hari Singh,a Factory Made Gun And 50 Grams Gun Powder, Caps, 16 Pellets Were Recovered. From The Possession Of Ram Bharose @ Bhagwan Singh, A Country Made Pistol Of 12 Bore, Three Cartridges Of KF Special, One Plastic Cartridge Of LG And Missed Cap Was Recovered. From The Possession Of Bhopal Singh, A Country Made Pistol, Five Cartridges Of KF Special, One Cartridge Cap Etc. Were Recovered. Besides This From Appellant Hoti,a Watch, From Appellant Bhopal Singh, Rs. 8.50 Paise Cash And From Appellant Ram Bharose @ Bhagwan Singh, Rs. 1.50 Paise Cash Were Also Recovered. All These Apprehended Accused Confirmed The Identity Of Durjan Jatav As The Escaped Dacoit. The Arrest And Recovery Memo, Ext. Ka-1, Was Prepared By The Inspector J.P.Singh, Which Was Counter Signed By Rest Of The Police Personnel. Apprehended Accused Were Brought To The Police Station And On The Basis Of Ext. Ka-1, FIR Of Crime No. 155 To 159, Under Sections 399/402 I.P.C. And 25 Arm's Act Were Registered Against The Accused Appellants On 11.5.1980 At 6.15 P.M.
Aforesaid Crime Was Investigated And Ultimately S.I. Babu Ram Yadav, Just After Eight Days Of The Incident, Charge Sheeted The Appellants Accused On 15.5.1980. Noted Here Is The Fact That The I.O. Was A Subordinate Officer Of The Informant Jai Pal Singh, Who Was The Inspector Of Police.
The Accused Persons Were Tried By IIIrd Additional Session's Judge, Mathura, In S.T. No. 228 Of 1980, State Vs. Hoti And Others For Charges U/s 399/402 IPC And 25 Arm's Act.
During Trial, Prosecution Relied Upon Four Witnesses, Moti Singh (P.W. 1), Informant Jai Pal Singh (P.W. 2), Brij Bihari (P.W. 3) And Banke Bihari (P.W. 4). I.O. SI Babu Ram Yadav Was Not Examined By The Prosecution.
In Statement U/s 313 Cr.P.C. Accused Denied Prosecution Evidences And Claimed Their False Implication As Their Defence Plea.
Learned Trial Judge After Looking Into The Prosecution Evidences Concluded That The Charges Under Sections 399/402 I.P.C. Have Been Established To The Hilt And Therefore, Convicted All The Appellants For The Said Charge. Appellant Durjan Jatav Was Also Convicted U/s 25 Arm's Act. All The Appellants Were Sentenced For Those Charges, Which Has Already Been Mentioned In The Opening Paragraph Of This Judgment. Hence This Appeal Challenging Both Conviction And Sentence.
When The Appeal Was Called Out For Hearing, Nobody Appeared To Argue It And Hence Miss Satya Srivastava Was Appointed As Amicus Curiae To Assist The Court. I Have Heard Miss Satya Srivastava, Learned Amicus Curiae On Behalf Of The Appellants And Sri Patanjali Mishra, Learned AGA In Opposition.
Learned Amicus Curie Pointed Out At The Outset That Two Of The Appellants Ram Bharose @ Bhagwan Singh And Durjan Jatav Had Died Pendente Lite Their Appeals In This Court And Hence Their Appeals Were Abated On 21.9.2005 And Consequently, Now The Appeals Of Residue Of The Appellants Hoti, Hari Singh And Bhopal Singh Are To Be Considered. Out Of These Appellants, Appellant Bhopal Singh Has Been Released On Probation Of Good Conduct And Was Not Given Any Substantive Sentence.
Assailing The Impugned Judgment Of Conviction, Learned Amicus Curiae Argued That The Entire Prosecution Story Is A Bundle Of Lies And Is Not Confidence Inspiring And, Therefore, Cannot Be Lend With Any Credence. It Was Contended That A Gang Of Dacoit Will Never Assemble At An Open Place During Day Time Nor Will Conspire In Such Loud Voices As To Be Audible To Each And Sundry. It Was Next Submitted That The Trial Judge Himself Disbelieved The Prosecution Witnesses And Therefore, From The Entire Evidences, Facts And Circumstances Of The Case It Transpires That Prosecution Had Failed To Establish It's Charge Against The Appellants And They Deserve Acquittal. Elaborating The Submission, Learned Amicus Curiae Relied Upon Paragraph 11 Of The Impugned Judgment And Submitted That In The Aforesaid Paragraph, Trial Judge Himself Has Recorded A Finding That "Thus This Witness Supported The Prosecution Case In The Beginning Giving Out That Parties Were Set Up On The Ral Side Of The Railway Line But Later On Completely Put Up A 'volte Face' And Then Again Supported The Prosecution Case To Some Considerable Extent When Court Questions Were Put To Him. So He Has Taken Up Inconsistent Positions At Different Stages Of His Statement And It Appears To Me That He Was Won Over After His Statement Was Recorded On The First Date. In My Opinion, His Testimony Was Useless And Of No Value Or Help To Either Side." It Was Argued That After Learned Trial Judge Had Recorded Such A Finding, There Is No Reason For It To Convict The Appellants Nor There Is Any Reason For This Court To Rely Upon Testimonies Of P.W.3, Who Is A Hopeless Witness. Next It Was Submitted That For P.W.1, Trial Judge Has Recorded A Finding, Vide Paragraph 13 Of The Impugned Judgement, That "if He Was Not Interrogated And His Statement Was Recorded Under Section 161 Cr.P.C. By The Investigating Officer On His Own, It Would Not Harm His Testimony Of Oath At The Trial When No Reason Or Ground Is Shown Why He Should Depose Against The Accused On Trial." It Was Contended That Since, During Investigation, This Witness Was Never Interrogated By The I.O. And Hence He Cannot Be Relied Upon. It Was Pointed Out That The Defence Plea, Right From The Very Beginning, Was That P.W.1 Was A Picket Witness Of The Police And Once The Trial Court Was Convenienced That He Was Not Interrogated During Investigation And His Statement Under Section 161 Cr.P.C. Was Fabricated By The Police, There Was No Occasion For The Trial Judge To Rely Upon His Testimony And Take A Position Against The Accused. It Was Therefore Submitted That P.W.1 Is Also A Hopeless Witness And No Reliance Can Be Placed On His Testimony As Well. He Is A Picket Witness Of The Police, Who Had Testified Because Of His Such An Association And Therefore, Is An Untruthful And Unreliable Witness.
Further It Was Contended, For PW 4, That In Paragraph 14 Of The Impugned Judgment, Learned Trial Judge Has Not Relied Upon His Evidence Also Because " He Also Added That He Was Named As Police Witness In Two Other Cases. He Gave Out That He Had Not Seen Ram Bharosey @ Bhagwan Singh Or Durjan Nor He Knew Them. He Gave Out That The Police Party Had Come In A Jeep And Gone Back Too In A Jeep." It Was Submitted That After Noting Such Opinions, Learned Trial Judge Himself Has Concluded " His Statement Does Not Inspire Confidence So Much So As To Fix Guilt Upon Any Of The Accused On Trial On The Basis Thereof, Particular Because The Prosecution Case Is Not At All To The Effect That The Police Party Went In A Jeep And Came Back In A Jeep And When He Has Acknowledged That He Was A Police Witness In The Two Other Cases And When He Gave Some Evasive Statements Too. Under The Circumstances I Am Not Inclined To Place Reliance Upon His Testimony." Learned Amicus Curiae Harangued With Vehemence That On The Basis Of Such Evidences, Conviction Of The Appellants Would Not Have Been Recorded By The Trial Judge As The Only Evidence Against The Appellants Remains To Be That Of P.W.2.Castigating Evidence Of P.W.1, Learned Amicus Curiae Further Submitted That He Is A Wholly Unreliable Witness. He Had Testified During Cross-examination That He Did Not Know The Accused Prior To The Incident And He Could Not Tell From Which Accused What Property Was Recovered And Also He Had Failed To Identify Them By Their Names And Hence No Worth Can Be Attached To His Depositions. He Had Further Evidenced That He Does Not Write His Name As 'Moti Lal', As He Signs As 'Moti Singh', While Admitting That On The Recovery Memo And Bundles, The Signature Is That Of Moti Lal. On Being Further Cross-examined He Stated That He Could Not State What Attires Were Worn By The Accused, When They Were Apprehended. On Defence Suggestion Of His Being A Police Pocket Witness, He Had Given An Evasive Answer That He Does Not Remember As To Whether He Had Been A Police Witness In Earlier Trials Or Not. In An Answer To Another Question He Had Stated That He Cannot Divulge The Reason As To How He Had Been Made A Witness In A Case Against Holu @ Raghuvir A Co-villager. He Had Further Stated That The I.O. Had Never Interrogated Him. On Such Evidences, It Was Submitted By Learned Amicus Curiae, That It Is Established On Record, At Least On Preponderance Of Probability, That P.W.1 Was A Picket Witness Of The Police And Therefore, Wholly Unreliable. Learned Counsel Therefore Submitted That On The Solitary Testimony Of The Informant, Conviction Of The Appellants Could Not Have Been Recorded. It Is Further Submitted That The I.O. Was Withheld By The Prosecution And Was Not Cross-examined During Trial For The Reason Best Known To It And This Had Caused Prejudice To The Accused And Therefore, Also Conviction Of The Appellants Cannot Be Sustained. Concluding The Arguments, It Was Submitted That The Appeal Of The Surviving Appellants Be Allowed And They Be Acquitted Of All The Charges Leveled Against Them And Be Set At Liberty.
Learned AGA Argued To The Contrary And Submitted That It Was A Day Light Incident In Which The Appellants Were Apprehended At The Spot By The Police Party, Who Had No Axe To Grind Against Them And Therefore, The Conviction Is Unassailable And Has To Be Affirmed. Learned AGA Further Submitted That All The Accused Belonged To A Gang Of Dacoits And They Had Assembled At The Spot With The Intention To Commit Dacoity And It Is A Case Of A Preparation To Commit Road Side Robbery/dacoity And Therefore, No Clemency Should Be Shown To The Appellants And Their Conviction And Sentence Be Affirmed.
I Have Considered The Argument Raised By Both The Sides. Perusal And Summation Of Facts With Critical Appreciation Of Evidences On Record Unerringly Indicate That The Criticism Leveled By Learned Amicus Curiae Has Got Much Substance. Trial Judge Himself Has Noted Various Inconsistencies And Incongruities In The Depositions Of Fact Witness And Has Disbelieved At Least Two Of Them. He Had Relied Upon Testimonies Of P.W.1 And P.W.2 To Convict The Appellants. Analysing The Evidence Of P.W.1, It Is Culled Out That He Is Not A Truthful Witness. During Investigation, He Was Not Interrogated By The Police And The I.O., Even Fabricated His 161 Cr.P.C. Statement. No Step Was Taken By This Witness Against Such A Fabrication, Who Entered Into The Witness Box And Toed The Line Of The Police. This Conduct Of P.W.1 Goes Miles And Miles To Project Hand In Gloves Of This Witness With The Police. He Has Been A Police Witness In Other Cases Also And Therefore, To Compel Him To Reiterate Police Version During Trial Was Not At All Difficult. In Such A View, I Find That P.W.1 Is A Picket Witness Of The Police On Whom No Reliance Can Be Placed. He Is An Unreliable, Tutored And Got Up Witness And His Testimony Is Incredible. Therefore, I Discard His Testimony Outright. In This Respect, Trial Court, Although Noted These Glaring Contradictions And Inconsistencies, Wrongly Relied Upon His Testimony. It Is Trite Law That The Prosecution Has To Establish It's Case Beyond All Shadow Of Reasonable Doubt And, Once The Trial Court Was Informed Of Above Referred Glaring Illegalities And Inconsistencies, It Should Have Examined Cautiously The Evidence Of P.W.1 Rather Than Accepting It Pedantically, Ignoring The Accused Criticism, Without Any Valid Reason. Turning Towards The Evidence Of The Informant, His Evidence Also Does Not Inspire Any Confidence. If Police Person Can Cook Up A False Case, No Reliance Can Be Placed On His Testimony. During The Incident Not Even A Single Shot Was Fired. All The Dacoits Submitted To The Police Chase Meekly Without Giving Any Retaliatory Response. This Is A Very Unnatural Conduct, Which Does Not Appeal To Reason At All. From The Possession Of These Dacoits A Meager Cash Amount, Virtually Negligible, Were Recovered, Which Does Not Indicate At All That They Had Assembled At The Spot With An Idea To Commit Dacoity. In Respect Of Recovery Of A Factory Made Gun, The Evidence In That Respect Is Also Very Incredible And Does Not Inspire Any Confidence. The Alleged Factory Made Gun Was Never Got Checked Or Tallied. No Number Of The Factory Or It's Make Was Decipherable. From The Evidence On Record, It Is Not Understandable As To On What Basis, The Prosecution Had Come Out With A Story That The Recovery Of A Factory Made Gun Was Made During The Incident. In This Respect, When Testimony Of P.W.2 Is Analysed, He Had Deposed, At Page 9, Of The His Statements, That He Cannot State The Number Of The Said Gun Because It Was Scrubbed. He Also Could Not State The Factory Where It Was Manufactured. But For The Cap There Was No Other Sign On The Gun Of It Being Factory Made. Informant Or The I.O. Had Not Got The Said Gun Examined From An Expert. In Such A View, The Allegations That A Factory Made Gun Was Recovered From Hari Singh Appellant Is Not Proved Beyond Shadow Of All Reasonable Doubst. On An Overall Analysis Of The Entire Facts And Circumstances Of The Case, It Seems That During Election Period, These Appellants Were Apprehended By The Police For The Reasons Best Known To Them And Were Implicated In The Present Incident Without There Being Any Credible Evidence Against Them. It Has Already Been Pointed Out Above That I.O. Was Not Examined By The Prosecution, Which Is A Serious Blow To It's Case, Especially For Charges Under Sections 399 And 402 IPC.
Concluding The Discussion, I Am Of The Opinion That The Prosecution Has Failed To Establish It's Charge Beyond All Reasonable Doubt And The Appellants Are Entitled To Be Acquitted.
Appeal Is Allowed. Conviction Of The Appellants Hoti, Hari Singh, Bhupal Singh For Offences Under Sections 399, 402 IPC Are Hereby Set Aside And They Are Acquitted Of Those Charges. These Appellants Are On Bail, They Need Not Surrender, Their Bail Bonds And Surety Bonds Are Hereby Discharged. The Bonds Furnished By Bhupal Singh Appellant Is Also Discharged.
Let A Copy Of The Judgment Be Certified To The Trial Court For It's Intimation.
Dt.21.3.2012
Rk/Arvind/-
Hon'ble Vinod Prasad,J.
Miss Satya Srivastava, Learned Amicus Curiae Has Rendered Valuable Assistance In Deciding The Appeal, Which Was Pending Since Last Three Decades And, Therefore, She Is Directed To Be Paid Rs. 8,000/- As Her Fees By The Office Of This Court. 

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