Sudhir And Others vs State Of U.P.
2018 Latest Caselaw 1890 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 337 of 2005
 

 
Appellant :- Sudhir And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sushil Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Sushil Kumar, learned counsel for the appellant, learned A.G.A. for the State and perused the record.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 22.01.2005 passed by Additional Sessions Judge, court no.7, Aligarh in Sessions Trial No.1110 of 2000, (State Vs. Binu @ Vinai and others), police station- Gabhana, District- Aligarh, whereby the appellants Binu @ Vinai, Lakhan @ Lakkhi, Sudhir and Subhash each have been sentenced to 5 years R.I., coupled with fine Rs.5,000/- with default stipulation for one year additional simple imprisonment- under Section 307/149 IPC. Appellants Binu @ Vinai and Lakhan @ Lakkhi have been further sentenced to 1 year R.I., coupled with fine of Rs.1,000/- with default stipulation for one month simple imprisonment- under Section 25 Arms Act. All the sentences have been directed to run concurrently.

Relevant facts for adjudication of this appeal as gathered from record appear to be that it is a case of police encounter. Facts of this case appear to be that first information report was lodged by Bhupendra Kumar Sharma, S.O. Police Station- Gabhana on 18.4.1999 at 9.30 P.M., which shows that informant himself along with S.O. V.K. Sharma, S.I. Atar Singh, S.I. B.P. Singh, Constable Mahipal, Constable Awadh Kishore, Constable Anil Kumar, Constable Ratnesh Kumar departed from the police station on the Government Jeep UPC 81B- 6114 for investigating the case at rapat no.30. They were busy in patrolling and checking of vehicls. The patrolling was on and the police party was moving towards Aligarh. When they reached in the vicinity of village- Kanhoi, they received tip off information that some miscreants are hiding and are planning to commit offence in front of the road leading to Ogar Road, behind the trees situated on the southern side of GT Road. The police party proceeded towards the spot and apprehended three miscreants on the spot in the torch light and overpowered them. All the miscreants were taken into custody at 9.30 P.M. Search was made and country-made gun .315 bore was recovered from the possession of Binu @ Vinai s/o Manohar Singh Raghav. Similarly, the another accused- Lakhan Singh @ Lakkhi- was also searched and one country-made gun .12 bore was also recovered from them. Besides, two live cartridges were also recovered from their person. Third accused Mukesh was also apprehended from the spot and a knife was recovered from his possession. Accused Sudhir s/o Surendra Singh and Subhash s/o Bhoodev fled away from the scene in the darkness and could not be traced out. However, they were identified by the police personnels in the torch light.

All the arrested accused (Binu @ Vinai, Lakhan @ Lakkhi and Mukesh) were taken into custody under Sections 147, 148, 307/149 IPC and accused Binu @ Vinai, Lakhn @ Lakkhi were further booked for offence under Section 25 Arms Act. The memo of arrest was prepared on the spot and the recovered weapons were kept under seal in separate packets. The arrest and recovery memo is Exhibit Ka-1. The police party came to the police station along with the accused.

Consequently four cases were registered at Police Station- Gabhana on 18.4.1999 at 11.30 P.M. in Case Crime Nos.62216990089, 62216990090, 62216990091, 62216990092, under Sections 147, 148, 307/149 IPC against all the accused and under Section 25 Arms Act against accused Binu @ Vinai and accused Lakhan @ Lakkhi, whereas accused Mukesh was charged under Section 4/25 Arms Act.

However, accused Mukesh s/o Raj Kumar expired during pendency of the trial, therefore, his case stood abated at that stage.

The investigation ensued and the statement of the various prosecution witnesses were recorded and site plan of the place of the occurrence was prepared. Site plan of the case under Sections 147, 148, 307/149 IPC is Exhibit Ka-6, whereas concerning the 25 Arms Act is Exhibit Ka-7.

Investigating Officer after recording statement of various witnesses and after completing the investigation filed charge-sheet against accused Binu @ Vinai, Lakhan @ Lakkhi, Mukesh, Subhash for offence- under Sections 147, 148, 307/149 IPC in Case Crime No.62216990089- Exhibit Ka-2. The Investigating Officer also filed charge- sheet against Lakhan @ Lakkhi in Case Crime No.62216990091 for offence under Section 25 Arms Act- Exhibit Ka-3. He also filed the charge-sheet against accused Binu @ Vinai for offence under Section 25 Arms Act in Case Crime No.62216990090- Exhibit Ka-4. He has also filed charge-sheet against accused Mukesh s/o Raj Kumar for offence under Section 4/25 Arms Act in Case Crime No.62216990092- Exhibit Ka-5.

Consequently, proceeding of the case was committed to the court of Sessions where it was numbered as Sessions Trial No.1110 of 2000 and was transferred to the court of Additional Sessions Judge, court no.7, Aligarh for conduction and disposal of the trial.

The trial court heard the prosecution and the accused on the point of charge and was prima facie satisfied with the case against the accused. Accordingly, charges were framed and read over and explained to the accused, who abjured charges and claimed to be tried.

Consequently, the prosecution in order to prove guilt of the accused examined as many as three prosecution witnesses, of whom P.W.1 Atar Singh, P.W.2 Mahipal and P.W.3 Vidhya Ram are prosecution witnesses and Vidhya Ram is C.W.1.

Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, they described various reasons for their false implication and submitted that no such police encounter infact took place and they are innocent. Nothing incriminating has been recovered from their possession.

The defence led testimony of the two witnesses of whom D.W.1 is Surendra Singh and D.W.2 is Shripal Singh.

However, testimony of Vidhya Ram C.W.1 has got no concern with the merit of the case. He has informed about the fact of death of one of the accused Mukesh s/o Raj Kumar whose case stood abated at the stage of trial of this case.

The learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced each of the aforesaid accused as above.

Feeling aggrieved by the same judgment and order of conviction and sentence, the accused have preferred this appeal.

Learned counsel for the appellants has briefly submitted that it is a false case and the circumstances will show that the police was much interested in false implication of the accused in this case, therefore, things have been ordained in a fashionable manner at the whim of the police party. It was the month of April and the summer had set in and the incident is stated to have taken place around 9.30 P.M. by the side of of GT Road, which cannot be said to be lonely and deserted place, still no public witness was availed. Not only this, but also no person was named, who refused to be a witness to the fact of arrest and recovery. Next, contended that it is a case of no injury. The investigation conducted is faulty. The testimony of the prosecution witnesses of fact is contradictory. Only P.W.1 and P.W.2, the two witnesses of fact, have been examined. The seized country-made gun was never sent for forensic examination, which also throws doubt on the claim made by the police party that they recovered arms punishable under Section 25 Arms Act. No knife was recovered on the spot from the co-accused.

Learned AGA has retorted to the aforesaid submissions of the learned counsel for the appellants by submitting that it is correct that it is no injury case, but fire was opened on the spot on the police party by the accused who formed unlawful assembly. It was the luck of the police party that they escaped injury for which the accused cannot claim any advantage.

Also considered the rival submissions and the rival claims. In the light of the above, the point for determination of this appeal crops up whether the prosecution has been able to establish its case beyond reasonable doubt against the accused-appellants?

In this case, bare perusal of the first information report, Exhibit Ka-10 and the arresting memo Exhibit Ka-1 are indicative of fact that on a tip- off information, the police party reached to the spot, which is admittedly GT Road and the police encounter took place on the Kharanja side of the road a few paces away from the road. The police party has admitted fact particularly P.W.1 and P.W.2, the witnesses of fact, have categorically stated that only one fire was shot by the accused side at the time of police encounter, whereas, the language written in the FIR is indicative of fact that a number of shots were fired on the spot by the accused.

Further, testimony of P.W.2 Constable Mahipal Singh as on Page no.36 of the paper book reveals that there is one police picket booth at a distance of 20 paces away from the place of encounter, but no police personnel was called from the police picket booth nor did any person came to the spot after the incident of firing had occurred from the booth.

These two aspects; first, only one fire was shot appearing in the testimony of P.W.1 and P.W.2 when matched with the description of FIR that a number of fires were shot, do not tally. Secondly, it shows the mind set of the police party that they manipulated things in a way suited to them. Aforesaid scrutiny is based on fact than in case only a single fire was shot, then this sort of FIR regarding the instance of firing, cannot not be written to the ambit that fires were shot.

Under facts and circumstances of the case, though it is not a general rule that presence of public witness is always necessary, but looking to the surrounding and the attendant circumstances and facts of this case, it was expected of the raiding party to have called at least some person to stand witness and in case, such person refused to be a witness his complete details regarding name, parentage and residence etc. ought to have been described in the memo of arrest, because after hearing the sound of the fire, if it infact took place, public will also be attracted and at least some police personnel from the police picket booth, which was at a distance of 20 paces from the place of police encounter, must have arrived on the spot out of curiosity. But absence of any public person, as a witness or any police personnel from the police picket booth though situated in the extreme vicinity of the place of occurrence, creates lot of doubt on the claim made by the police party that the accused were apprehended and one fire was shot on them. Therefore, a reasonable doubt is generated regarding the manner and the style of incident, claimed by the police to have taken place in such manner. The weapons- say- the country-made guns recovered from the two accused .315 bore and .12 bore were never sent for any forensic laboratory for examination. If the police party was honest and the investigation was proper then under circumstances, in order to vindicate claim of the recovery of the countrymade guns, the same should have been sent for forensic examination. Though, it is not obligatory for the Investigating Officer to have taken steps for sending the recovered country-made guns for forensic examination, but it being a case registered by the police and all the witnesses being police personnels, some corroboration from independent source should and ought to have been brought on record by way of precaution, which corroboration is altogether missing in this case. In the absence of any such corroboration, it would not be safer to approve of the conviction of the accused recorded by the trial court.

The trial court did not contemplate on aforesaid vital factual aspects of the case and erroneously recorded findings of conviction, which finding of conviction in the wake of aforesaid scrutiny is set aside.

Consequently, the judgment and order of conviction dated 22.01.2005 passed by the Additional Sessions Judge, court no.7, Aligarh in Sessions Trial No.1110 of 2000, (State Vs. Binu @ Vinai and others), police station- Gabhana, District- Aligarh is not sustainable in the eye of law and the same is set aside and the appeal is allowed. The appellants are exonerated of all the charges.

In this case all the appellants are on bail. They need not surrender. Their bail bonds are hereby cancelled and sureties are discharged. However, they will comply with the provisions of Section 437-A Cr.P.C.

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

Dt.08.08.2018

Raj