Om Kar vs State Of U.P. & Others
2017 Latest Caselaw 4301 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14
 
                                                                           AFR
 
Case :- CRIMINAL APPEAL No. - 1406 of 2001
 

 
Appellant :- Om Kar
 
Respondent :- State Of U.P. & Others
 
Counsel for Appellant :- A.Prasad,A.K.Rai,R.N.Rai,Rajesh Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 28.04.2001 passed by Additional Sessions Judge, Hapur, (now district Hapur) Ghaziabad, in Sessions Trial No.368 of 1995, State of U.P. Vs. Hari Kishan and others, arising out of Case Crime No.758 of 1994, under Section 395 IPC, Police Station- Hapur, District- Ghaziabad, whereby the appellant has been sentenced to undergo three years rigorous imprisonment coupled with fine Rs.5,000/- under Section 412 IPC, in default of payment of fine, he will have to suffer addition one year imprisonment.

Heard learned counsel for the appellant, Sri Pradeep Kumar, learned AGA assisted by Sri Sharad Srivastava, brief holder for the State and perused the record of this appeal.

The genesis of this case is reflected from perusal of the first information report whereby it transpires that the informant used to run lottery shop at lottery market Guru Nanak Road, Hapur. On 23.10.1994 at about 1:45 p.m., a number of persons say 20 in number who were miscreants and were possessing hockey sticks, iron rods in their hands appeared in the lottery market and swooped upon shopkeepers and beat them and looted lottery tickets worth Rs.3,85,000/- and a number of shopkeepers sustained injuries in the incident. This report was lodged at Police Station Hapur (now district Hapur), District Ghaziabad on 23.10.1994 at 6:15 p.m. The written report is Ext. Ka-6.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.758 of 1994 under Section 395 IPC, Police Station Hapur District Ghaziabad, on 23.10.1994 at 06:15 p.m. Check FIR is Ext. Ka-3.

On the basis of entries so made in the check F.I.R., a case was registered against the appellant in the relevant G.D. at serial no.42 on 23.10.1994 at 06:15 p.m. at the aforesaid Case Crime Number at Police Station Hapur, under aforesaid Section of I.P.C. against the appellant. General diary copy is Ext. Ka-4.

Thereafter the investigation ensued and was entrusted to S.P. Soni PW-6. During course of the investigation, on tip off information that accused who committed offence was apprehended at Purachauple at 4:30 p.m. He spelled his name as Om Kar and Rs.4000/- was also recovered from his possession besides two lottery tickets. The appellant told him that lottery tickets have been given to him by Ram Pal Singh and Chandra Pal Singh, co-villagers which have been encashed. The arrest and recovery memo is Ext. Ka-1. The Investigating Officer also prepared site plan of the occurrence Ext. Ka-2. He has also proved Check FIR and general diary entry as Ext. Ka-3 and Ext. Ka-4, respectively. The statement of the witnesses were also recorded by the Investigation Officer. Thereafter, the investigation was transferred to another Investigating Officer Rajvir Singh who after completing investigation and other formalities filed charge sheet which has been proved by PW-6 as Ext. Ka-5.

Pursuant thereto committal proceeding took place and after compliance with Section 207 Cr.P.C., the case was committed to the court of Sessions from where it was transferred to the Additional Sessions Judge, Hapur, for conduction and disposal of the case, after numbering it as Sessions Trial No.368 of 1995 State Vs. Hari Kishan and others. Learned trial Judge heard the prosecution and the appellant on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Sections 395, 412 IPC. Charges were read over and explained to the appellant who abjured charges and opted for trial.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the appellant to prove his guilt, whereupon the prosecution produced in all six witnesses whose reference is being sketched hereinbelow.

Hari Om PW-1, Raj Kishore PW-2 and Banwari Lal PW-3 are witnesses of fact who turned hostile and have not supported the prosecution case. Similar is the case with the informant Ram Singh PW-4 who also turned hostile and has not supported the very base of the prosecution case - say lodging of the first information report to the ambit that he never lodged the FIR. Ramesh Kumar Singh the then Incharge of Police Outpost - PW-5 is witness of fact of arrest and recovery effectuated from the appellant. S.I. S.P. Singh PW-6 is the first Investigating Officer who has detailed various steps he took during investigation and he has also clarified that at later stage of the investigation, this case was transferred to SSI Rajvir Singh who had filed charge sheet and he has proved this charge sheet as Ext. Ka-5.

After that much, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein the prosecution allegations were flatly denied and it was submitted that no evidence, whatsoever has come forth against the appellant. No testimony, whatsoever, has been led by the defence. Consequently, the case was posted for arguments.

The case was heard on merits whereby the learned trial court acquitted accused of charge under Section 395 IPC while convicted the appellant under Section 412 IPC and sentenced him to undergo three years rigorous imprisonment coupled with fine Rs.5,000/- under Section 412 IPC, in default of payment of fine, he will have to suffer addition one year imprisonment, which eventually gave rise to this appeal.

Consequently, this appeal.

Learned counsel for the appellant has contended that the appellant has fallen prey to the departmental rivalry as he happened to be constable in the employment of Delhi Police and someone was having some grudge against him who in collusion with the police party has implicated the appellant in this case. Falsity of the case is exposed that no independent witness has supported the prosecution version to any extent and only police personnels who were interested in ensuring conviction of the appellant have come out with cooked up story which story on the face does not inspire confidence and the same is not believable as no lottery ticket was ever stolen or was obtained or was ever recovered from the possession of the appellant. The prosecution witnesses right from PW-1 to PW-4 have turned hostile because they were deliberately made prosecution witness.

Needless to say that Ram Singh - informant PW-4 has also not supported the prosecution version and he has gone to the extent of claiming that he never lodged the first information report, therefore, the very case of the prosecution stands falsified and conviction of the appellant under Section 412 IPC cannot be sustained in the eye of law.

On legal aspect of this case, it has been contended by the appellant that initially, in order to give colour to the prosecution story, the trial was conducted against six persons, whereas, five persons have been acquitted (of charge under Section 395 IPC) and the appellant was convicted under Section 412 IPC. In the wake of above factual background, conviction of the appellant under Section 412 IPC, while five persons have already been acquitted (as above), is neither justified nor legally permissible,  as one of the ingredients of Section 412 IPC specifies that the property recovered must be alleged to have been obtained in committing dacoity. Once five persons have been acquitted, the factum of dacoity stands vanished. Therefore, conviction of the appellant under Section 412 IPC is perverse and illegal in the eye of law. The appellant has no criminal history nor he is previous convict.

Learned AGA while retorting to the aforesaid arguments has submitted that in this case, the witnesses of fact have been won over and the entire story from its commencement indicates involvement of five or more persons in the incident. Merely five accused have been acquitted of charge under Section 395 IPC that will not ipso facto exonerate culpability of the appellant who has been fastened with recovery of lottery tickets and a cash Rs.4,000/-. The police party who arrested the appellant and effectuated the alleged recovery have proved factum of recovery, therefore, conviction of the appellant under Section 412 IPC is justified. The learned trial Judge who was seized of the matter has rightly taken note of the entirety of the case and has rightly convicted the appellant.

Also considered the aforesaid submissions. On the basis of the submissions so made and rival claims so raised between the parties, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case within four corners covered under Section 412 IPC against the appellant beyond reasonable doubt?

Bare perusal of the first information report is indicative of fact that lottery tickets worth Rs.3,85,000/- were allegedly looted at the time of the incident. However, two lottery tickets are alleged to have been recovered from the possession of the appellant. But surprisingly number of both lottery tickets tally with each other. This by itself is indicative of fact that these lottery tickets are not genuine on the face.

Another important aspect of this case is that the appellant has not been named in the first information report and initially only three persons were named in the first information report wherein a reference was also made that it was a group of 20 persons who in company with the named accused committed the crime.

Needless to say that all the witnesses of fact PW-1, PW-2, PW-3 and PW-4 have not supported even in the least the prosecution story and nothing adverse of sort has emerged in the cross examination of all the four witnesses of fact which may give clue to fact that the witnesses are not telling the truth in Court, therefore there is nothing adverse in the testimony of the four aforesaid prosecution witness which may fasten any liability or culpability on the appellant.

Insofar as factum of arrest of the appellant and recovery is concerned, obviously it is alleged recovery of petty amount Rs.4000/- and that too is said to be the money obtained on the lottery tickets. This tip off information was received by PW-6 who effectuated arrest of the appellant. Prima facie, tip off information so given regarding the source of money cannot be accepted on its face value as confessional statement of accused is hit by Section 25 of the Indian Evidence Act, 1872. More so, there is said to be some independent witness of recovery - resident of Delhi but he too has not been produced for corroborating factum of recovery. The Court also comes across fact that Ram Singh PW-4 has gone to the extent of testifying that he never lodged the first information report. That way, both the written report Ext. Ka-6 and Check FIR Ext. Ka-3 loses legal force and the entire prosecution case falls flat only on that solitary count.

One factual aspect of this case is worth mentioning that not a single witness of fact has come out with the case that the incident of loot, in this case, was committed by a number of persons say 20 or more. Therefore, in this case when five persons have been acquitted of charge under Section 395 IPC then it is obvious that factum of dacoity itself fails and in the event of such failure factum of committing dacoity fails, consequently there is no point in basing the case for conviction of the appellant under Section 412 IPC.

In view of above, it can be summed up that upon wholesome scrutiny and analysis of the facts, circumstances and evidence on record it emerges out that the prosecution version regarding the factum of alleged recovery has not been reasonably established and a serious dent is created in the prosecution story.

Learned trial Judge while evaluating evidence on record and appraising facts and circumstances of the case misread into evidence and circumstances and erroneously recorded finding of conviction and awarded sentence which finding of conviction and sentence being erroneous and illegal is not to be sustained and the same is liable to be set aside.

The arguments extended on behalf of the appellant deserve merit. Therefore, judgment and order of conviction dated 28.04.2001 passed by Additional Sessions Judge, Hapur, (now district Hapur) Ghaziabad, in Sessions Trial No.368 of 1995, State of U.P. Vs. Hari Kishan and others, arising out of Case Crime No.758 of 1994, under Section 395 IPC, Police Station- Hapur, District- Ghaziabad, is set aside. Consequently, the present appeal succeeds and the same is allowed. The appellant is acquitted of charge under Section 412 IPC.

In this case, the appellant is on bail. He need not surrender before the Court. However, he shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt. 13.09.2017

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