Ram Kishore And Ors vs State
2021 Latest Caselaw 3087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 14.12.2020
 
Delivered on 02.03.2021
 
Court No. 80
 

 
Case :- CRIMINAL APPEAL No. - 494 of 1983
 
Appellant :- Ram Kishore And Ors
 
Respondent :- State
 
Counsel for Appellant :- R. Singh,S.K. Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. This criminal appeal has been preferred against the judgment and order dated 26.02.1983 passed by learned Special Judge, Mainpuri in S.T. No. 49 of 1982 (State vs. Ram Kishore @ Kishora and others), under Sections 399, 402 IPC and Section 25 of Arms Act, P.S. Barnahal, District Mainpuri, whereby the accused-appellants, namely, Ram Kishore alias Kishora, Raj Kishore, Ram Autar and Sharda have been convicted under Sections 399, 402 IPC and sentenced to four years rigorous imprisonment under Section 399 IPC and three years rigorous imprisonment under Section 402 IPC. Accused-appellants, namely, Ram Kishore alias Kishora and Raj Kishore were further convicted under Section 25 of Arms Act and sentenced to two years rigorous imprisonment. All the sentences were directed to be run concurrently.

2. During pendency of this appeal, accused-appellant no. 1 Ram Kishore alias Kishora has passed away and thus the appeal in respect of accused-appellant no. 1 has already been abated by this Court vide order dated 14.12.2020. Now the instant appeal survives only in respect of accused-appellant nos. 2 to 4, namely, Raj Kishore, Ram Autar and Sharda.

3. Prosecution version in brief is that on 19.12.1981, a police party of police station Barnahal, Mainpuri, comprising PW-1 Station Officer P.M. Kashyap, PW-2 S.I. Babu Lal and other police officials has conducted some raids in connection with case crime no. 140, under Section 399/402 IPC and case crime no. 107 under Section 302 IPC and during that process, when they reached near village Kiratpur at about 9.45 pm, they received a secret information that a gang of 8-9 armed bandits is assembling in the Dharmshala near village Firauli with intention to commit dacoity in trucks. On this information, they tried to join some public witnesses, but none agreed. The police party was divided into two parts and they reached near the said Dharmshala and by concealing themselves near the Dharmshala, they heard conversation of the bandits, who were inside of said Dharmshala. They heard that one of the miscreant was saying that now they must not wait for Shaukat and they must go to commit dacoity in vehicles by putting bricks and stones on the road. Other members of said gang also agreed saying that they have sufficient weapons for committing dacoity. After hearing this conversation, the Station Officer challenged the said miscreants and during that course S.I. R.R. Mishra has fired two shots and the police party apprehended four of the miscreants, whereas the remaining 4-5 bandits succeeded in running away. The identity of the miscreants, who were apprehended, was revealed as Ram Kishore alias Kishora, Raj Kishore, Ram Autar and Rukam. On their search, one country made pistol and four cartridges were recovered from accused-appellant Ram Kishore alias Kishora, one country made pistol of 12 bore along with three cartridges were recovered from accused-appellant Raj Kishore, one spear was recovered from accused-appellant Ram Autar and one knife was recovered from accused-appellant Rukam Singh. The alleged weapons were sealed at the spot and were taken into police possession vide recovery memo exhibit Ka-1 to Ka-4 and ka-7. Thereafter the FIR of this case was got lodged at the police station on 20.12.1981 at 02.15 PM vide exhibit ka-7 under Sections 399/402 IPC and Section 25 of Arms Act.

4. During investigation, the Investigating Officer has prepared site plan of spot, recorded statements of witnesses and after completion of the investigation all the accused persons were charge-sheeted for the offence under Sections 399/402 IPC and Section 25 of Arms Act.

5. Trial court framed charge under sections 399/402 IPC against all the accused persons. Accused Ram Kishore alias Kishora and Raj Kishore were further charged under Section 25 of Arms Act. In order to bring home guilt of accused-appellants, prosecution has examined three witnesses.

6. Accused-appellants were examined under section 313 CrPC, wherein they denied prosecution evidence and claimed false implication. In defence, accused-appellants have examined two witnesses DW-1 Babu Ram and DW-2 Suraj Ram.

7. After hearing and analyzing evidence on record, trial court convicted all the four accused-appellants under Sections 399/402 IPC and accused-appellant Raj Kishore was further convicted under Section 25 of Arms Act vide impugned judgment and sentenced as stated in opening para of this judgment. Hence this appeal.

8. In evidence, PW-1 S.O. P.M. Kashyap has stated that on 19.12.1981, he along with PW-2 S.I. Babu Lal and other police officials has gone to conduct raids at the house of accused persons of case crime no. 140 and 109. After conducting some raids when they reached near village Kiratpur at around 09.45 PM, they received a secret information that a gang of armed bandits is assembling in the Dharmshala near village Firauli and they are planning to commit robbery in trucks. On this information, they tried to join some public witnesses, but none agreed. They proceeded towards the said dharamshala and the police party was divided into two groups. After reaching at the dharamshala, the two groups of police party took position in northern and southern side of the dharamshala by concealing themselves. They started hearing conversation of the said bandits and heard that one of the miscreant was saying that Shaukat would not come now and thus, they must commit dacoity in vehicles by putting bricks and stones on the road. Other persons of said gang also agreed and stated that they have sufficient weapons for committing dacoity. As the miscreants stand up for going, he (PW 1 P.M. Kashyap) challenged the said miscreants and they got panicked and during that course, SI R.R. Mishra fired two shots. At about 10.30 PM, the police party apprehended four of the miscreants, whereas rest of the miscreants succeeded in running away. The identity of the miscreants, who were apprehended, was revealed as Ram Kishore alias Kishora, Raj Kishore, Ram Autar and Rukam. On their search, one country made pistol and four cartridges were recovered from accused-appellant Ram Kishore alias Kishora, one country made pistol of 12 bore along with three cartridges were recovered from accused-appellant Raj Kishore, one spear was recovered from accused-appellant Ram Autar and one knife was recovered from accused-appellant Rukam Singh. The alleged weapons were sealed at the spot and were taken into police possession vide recovery memo exhibit ka-1 to ka-4 and ka-7. Some 'beeris' and match sticks were also seized from spot vide exhibit ka-6. Thereafter, on basis of exhibit ka-7, the FIR of this case was got lodged at the police station on 20.12.1981 at 2.15 AM vide exhibit ka-7 under sections 399/402 IPC and section 25 of Arms Act.

9. PW-3 R.R. Mishra has also made a similar statement. He has reteirated nearly same story and supported the prosecution version regarding arrest of accused persons and recovery of weapons.

10. PW-2 S.I. Babu Lal has investigated the case.

11. In defence evidence, DW-1 Babu Ram has stated that before the alleged incident, police have come in his village and they have called the accused-appellant Ram Kishore alias Kishora (since dead) and took him to police station and thereafter on the next day, he came to know that accused-appellant Ram Kishore alias Kishora was falsely implicated in the present case. Similarly, DW-2 Suraj Ram has stated that police have came in the village and they called accused-appellant Sharda from his home and took him with them and thereafter he was falsely implicated in this case.

12. Learned counsel for accused-appellants has argued that there is no public witness of alleged incident and that there are material contradictions and inconsistencies in statements of witnesses. It was submitted that the prosecution version is thoroughly improbable and unreliable. It has further been submitted that the alleged country made pistols recovered from accused-appellants Ram Kishore alias Kishora and Raj Kishore have not been sent to F.S.L and there is no evidence that the said country made pistols were in working order. It was submitted that trial court has not appreciated the evidence in correct perspective and committed error by convicting the accused-appellants.

13. Per contra, it was submitted by learned State Counsel that the prosecution has examined two witnesses of alleged incident, who were members of police party, which apprehended the accused-appellants and co-accused. It was submitted that version of PW-1 S.O. P.M. Kashyap has been corroborated by PW-2 S.I. Babu Lal and there is no material contradiction. Their version is also supported by PW-3 S.I. R.R. Mishra. It was further submitted that the conviction of accused-appellants is based on evidence and thus, no interference is called for.

14. I have considered the rival submissions of learned counsel for the parties and perused the record.

15. In this case accused-appellants have been convicted under Section 399/402 of IPC and Section 25 of Arms Act. For better understanding, the provisions of Sections 399 and 402 IPC are reproduced herein as under:

"399. Whoever makes any preparation for committing dacoity, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.''

''402. whoever at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

Thus, in order to prove the charge under Section 402 IPC, it is necessary for the prosecution to prove that five or more persons have assembled with the intention to commit dacoity, whereas for proving the offence under section 399 IPC, it is necessary for the prosecution to prove that some additional steps have been taken in the course of preparation to commit dacoity.

16. Close scrutiny of evidence shows that as per prosecution version on the night of 19.12.1981, the alleged police party comprising of PW-1 and PW-3 has gone in connection with investigation of case crime no. 140, under Sections 399/402 IPC and case crime no. 107, under Section 302 IPC and during that process, while they were going to village Firauli and reached near village Kiratpur, after receiving a secret information, they went at alleged Dharmshala and heard the conversation coming from the said Dharmshala. It was alleged that one of the miscreants has said that now they must not wait for Shaukat and let them go for committing dacoity in vehicles by putting bricks and stones on the road and that as they become ready for going, said police party apprehended four of the miscreants, while remaining 4-5 miscreants succeeded in running away. It appears from the site plan that one of the police party was in Northern Side and another in Southern Side of said Dharmshala and it appears highly improbable and unreliable that from outside the said Dharmshala they were able to hear any such conversation of the alleged miscreants from inside the said Dharmshala. Here it may be stated that as per prosecution version, there were about 9-10 police officials in the police party and thus, it also does not appear probable that the said miscreants could not feel the presence of such a number of police officials at said Dharmshala. It is equally improbable that in such a situation, the alleged miscreants would talk in such loud voice about going to commit dacoity so that it may be heard by the police, which was outside the dharamshala. Further, alleged incident has been shown of 10.30 PM and the site plan shows that there is a temple near the said Dharmshala, but there is no plausible explanation why any public witness was not joined before the raid or during investigation.

17. Further as per prosecution version, 4-5 of the miscreants have succeeded in running away from the spot. It appears from record that there were about 9-10 police officials in the police party but it has not been clarified that despite there being sufficient number of police officials present at the spot, how 4-5 of the miscreants managed to escape from dharamshala. It is a question, which the prosecution has failed to give answer and that neither any step has been taken by the police to apprehend the said miscreants nor the police constables, who chased the said accused were examined so as to establish the charge under section 402 i.e. assembly of five persons to commit dacoity. Even during investigation, identity of said miscreants could not be established. There is nothing to show that why the accused persons, who were apprehended at the spot, were not intro-gated about the identity of said miscreants. Considering entire facts this possibility can not be ruled out that the story regarding fleeing way of 4-5 of the miscreants was introduced with intention to bring the number of miscreants five as this figure was necessary to apply section 402 IPC.

18. It may also be seen that prosecution version is that when the police party heard conversation of alleged miscreants, one of them was saying that now they must not wait for Shaukat and let them go for committing dacoity and at the same time, they apprehended the accused persons. There is nothing to show that except the alleged bald talking, the miscreants have taken any further step for the purpose of committing dacoity. Even there is no such specific version that the miscreants have started going for that purpose. Here it would be pertinent to mention that in the case of Shridhar Koeri Vs. State of Bihar, 2001 (43) ACC 5, Hon'ble Apex Court has held that the mere fact that the accused was arrested on the spot and some articles including fire arms were recovered from his possession would not be sufficient to prove the charge that he had assembled for making preparation for commission of dacoity.

19. Another point is that alleged country made pistols and cartridges, recovered from accused-appellants Raj Kishore and Ram Kishore, were not sent to FSL for examination. Thus, there is no evidence that alleged country made pistols, shown recovered from accused-appellants, were in working order and the cartridges were alive. In case of State of Punjab Vs. Jagga Singh, AIR 1998 SC 3113, Hon'ble Supreme Court observed as under:

"Though the evidence of PW 1, HC Baldev Singh and PW 3, Basant Singh establishes that the respondent was found in possession of one 12 bore DBBL gun and found live cartridges, there is no satisfactory evidence to show that the said gun and the cartridges were sent for examination by the Central Forensic Scientific Laboratory. There is no report from the Forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working condition or that the said cartridges were live cartridges..... Therefore, in absence of any evidence to show that the respondent was found in possession of one .12 bore DBBL gun in a working condition and four live cartridges, the respondent cannot be convicted."

Thus, the instant case is also affected on the ground that alleged country made pistols and cartridges recovered from the said accused-appellants have not been sent to FSL and there is no such expert report or any other evidence that the said pistols were in working order.

20. At this juncture it may be observed that prosecution version is that the miscreants have uttered that now they must go for committing dacoity and as they became ready to go from the dharamshala, the police officials apprehended the four appellants. There is absolutely no evidence that any of the appellant has offered any resistance. In the case of State of UP Vs. Punni, 2008 Cr.L.J 1028 (SC), the dacoits were arrested without any resistance or struggle and contents in the FIR that police had received information from an informer was not supported by the sub-Inspector, the Hon'ble Apex court held that the accused was entitled for acquittal. In the instant case too there is nothing to show that alleged miscreants have offered any resistance.

21. It may also be seen that the complainant of the case is PW-1 S.O. P.M. Kashyap, who was Station Officer of police station Barnahal and the case has been investigated by PW-2 S.I. Babu Lal, who was subordinate to PW-1 S.O. P.M. Kashyap and thus, it is also doubtful whether the investigation was carried out in a fair and impartial manner.

22. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread, which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan V. Raja Ram, (2003)8 SCC 180; Chandrappa & Ors V State of Karnatka, (2007) 4 SCC 415; Upendra Pradhan V. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. V. State of Assam and Anr., (2015) 11 SCC 242]. In the instant case considering entire evidence it appears that prosecution version lacks genuineness and authenticity. The prosecution version appears unnatural as it is quite improbable that the said police officials could have heard any such conversation of appellants that they were saying that they would commit dacoity. Even otherwise mere alleged conversation hardly fulfills the necessary ingredients of offence under section 399 and 402 IPC. In attending facts and circumstances of the case it can also not be ruled out that story that 4-5 of the miscreant have ran away from spot might have been introduced to bring out the figure five so that the case may brought within the ambit of offence punishable under section 402 IPC. Further there is no evidence that alleged recovered pistols were in working order. Considering entire facts and evidence, prosecution version appears doubtful and thus, all the accused-appellants are entitled for benefit of doubt.

23. In view of above, the conviction and sentence of accused-appellants Raj Kishore, Ram Autar and Sharda under Sections 399, 402 IPC and Section 25 Arms Act, recorded by trial court, is set aside and they are acquitted of the charges levelled against them. The appellants are on bail and thus, no further order is required.

24. Appeal is accordingly, allowed.

25. Office to transmit the record of trial Court as well as copy of the judgment to the Court below.

Dated: 02.03.2021

Anand

(Raj Beer Singh, J)