Phera Singh vs State Of U.P
2022 Latest Caselaw 4181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							           Reserved on 18.5.2022
 
							          Delivered on 26.05.2022
 

 
Court No. - 71 
 

 
Case :- CRIMINAL APPEAL No. - 2342 of 1982 
 

 
Appellant :- Phera Singh 
 
Respondent :- State Of U.P 
 
Counsel for Appellant :- K.S Chauhan,R.K.Rathore 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Samit Gopal,J. 

1. This criminal appeal has been filed against the judgement and order dated 28.8.1982 passed by VIII Additional Sessions Judge, Mainpuri in S.T. No. 435 of 1981 (State vs. Pheru Singh), whereby the appellant has been convicted and sentenced under Section 148 I.P.C. to two years rigorous imprisonment, under Section 307 I.P.C. read with Section 149 I.P.C. to four years rigorous imprisonment and under Section 25 Arms Act to two years rigorous imprisonment. Sentences have been ordered to run concurrently.

2. The prosecution case as per the F.I.R. which is an oral report lodged on 30.7.1981 at about 23:30 hours at Police Station Kishani, District Mainpuri by LalmanVerma (P.W.-1) for the incident which had taken place on 30.7.1981 at about 2100 hours near a Dharmashala in village Arsara, District- Mainpuri is that on 30.7.1981 Lalman Verma the first informant who was posted as Station House Officer, Police Station Kishani, District Mainpuri, armed with his pistol, was on regular checking and raid for Shobaran gang along with other police officials B.L. Saraswat, Sub-Inspector K.P. Singh, Sub-Inspector D.V. Singh and Constables Ram Lakhan Singh, Shevaran Singh, Krapal Singh, Bishambar Singh, Gajadhar Singh and Vijai Singh. All the police personnels were carrying their arms and torches. At about 11:30 P.M. when they crossed village Arsara and reached on the road near to a Dharmshala, they found some persons talking. Lalman Verma flashed torch on them and found 7 persons talking near the wall of Dharmshala. He challenged them on which they started firing on the police party with an intention to kill them. In retaliation the police party also opened fire in their self defense and on the order of S.O. D.R. Sharma two fires of V.L.P. was done. The said persons tried to run away who were chased. They were around 6-7 persons out of them one person was apprehended. One D.B.B.L. gun of 12 bore having No. 331 was recovered from his right hand and a belt having six cartridges of 12 bore no. 3 was also recovered, who had their make mentioned as K.F. The other accused persons identified in the light of torches were Shobaran, Girish Yadav, Mansigh Yadav, Ramswaroop Yadav and two other persons who can be identified if brought. The accused was brought to the police station, after which an oral report (Ex. Ka-4) was dictated by Lalman Verma which was transcribed and the F.I.R. was lodged.

3. The recovered weapon and the cartridges were recorded in a recovery memo of which police persons were the witnesses which is dated 30.7.1981 and is marked as Ex. Ka-1 to the records. From the place of occurrence two V.L.P. cartridges fired by the police, two 303 bore cartridges of rifle and one cartridge of 303 bore of rifle fired by D.R. Sharma Sub-Inspector, B.L. Saraswat Sub-inspector and Constable/422 Ram Lakhan Singh, were recovered respectively, for which a recovery memo dated 30.7.1981 was prepared of which the police officials were witnesses which is marked as Ex. Ka-2 to the records. Further three cartridges of 12 bore were recovered from the place of occurrence alleged to have been fired by the said miscreants of which recovery memo dated 30.7.1981 was drawn to which the police persons were the witnesses which is Ex. Ka-3 to the records. Torch was taken into custody which was found to be in a working condition with cell which was handed over in the custody in S.O. Sahab Singh. Recovery memo and custody memo is dated 15.8.1981 which is marked as Ex. Ka-5 to the records. The District Magistrate, Manpuri gave his sanction for prosecution of the accused-appellant under Section 25 Arms Act vide order dated 18.8.1981, the same is Ex. Ka-9 to the records.

4. Charges against the appellant were framed under Section 148 I.P.C., under Section 307 I.P.C. read with Section 149 I.P.C. and under Section 25 of Arms Act vide order dated 7.11.1981 by VIII Additional Sessions Judge, Manpuri. The accused pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove its case examined Lalman Verma S.O. Police Station Kishani, District Mainpuri who is the first informant as P.W.-1, Constable Ram Lakhan Singh as P.W.-2 and S.I. Babu Lal Saraswat as P.W.-3. P.W.2 and P.W.-3 were the police persons who had accompanied the first informant on the fateful night and had also fired their weapon in self defense.

6. The accused in his statement under Section 313 Cr.P.C. denied the charges and stated that he had enmity with Prakash Thakur who was the police informer and due to the same, because of village partibandi, he has been falsely implicated in the present case.

7. In defense, the accused-appellant produced Virendra Singh as D.W.-1 and Shiv Sahai as D.W.-2 who had stated that the accused-appellant was taken away by four police persons from his house by stating that senior officer is calling him and later on, after 2-4 days, they came to know that he has been implicated in the case.

8. The trial court after considering evidence on record came to a conclusion that the evidence of witnesses and entire records would go to show that the prosecution has succeeded in proving the case beyond doubts and thus convicted him under the aforesaid Sections.

9. Heard Sri R.K. Rathore, learned counsel for the appellant, Sri B.B. Upadhyay, learned State counsel and perused the entire records including the impugned judgment and order of conviction.

10. Learned counsel for the accused-appellant made the following submissions :

(1) The appellant has been falsely implicated in the present case.

(2) As per prosecution case as stated in the F.I.R. 6-7 persons were seen talking when they were challenged by the first informant and other police personnels, but P.W.-3 Babu Lal Saraswat has stated before the court in his examination-in-chief that there were 5-6 persons. P.W.-2 Ram Lakhan Singh has also stated of same number of persons talking but later on states that 5-6 persons ran away and one person was arrested.

(3) In so far as torch is concerned, the incident is of 30.7.1981 as stated by the prosecution but the said torch was recovered and given in supurdgi on 15.8.1981 which is after 15 days of the incident and as such looses its credence and is not trustworthy.

(4) There is no linking evidence to connect the recovery of the said gun. The said gun was produced in the court from the police station which does not at all transpires confidence.

(5) There is no G.D. of rawangi of the police officials produced before the court to show that they had left the police station as stated by the prosecution in the F.I.R. and also in the statement of the alleged witnesses.

(6) The present case is a case of no injury in spite of the fact that firing from the side of miscreants was done and the police personnels were in close quarters to them but neither the police personnels received any firearm injury nor any of the alleged miscreants received any injury from the alleged firing by the police personnels in their defense.

(7) Only the appellant was tried and there was no other person tried in spite of the fact that as many as four other persons and two unknown persons were mentioned to be present at the place of occurrence and instrumental in the matter.

(8) There is no corroboration of use of the alleged recovered weapon in the present incident as the same was neither sent for any expert examination nor it is a prosecution case that the same was sent for analysis.

(9) The trial court has without giving any cogent reasons disbelieved the defense witnesses produced from the side of the accused-appellant. The two defense witnesses who have not been found to be trustworthy by the trial court, are natural witnesses.

11. Learned Additional Government Advocate for the State of U.P., on the other hand, opposed the submissions of learned counsel for the appellant by arguing that the appellant was apprehended by the police from the place of occurrence and a gun along with live cartridges was recovered from his possession. There is no reason for false implication of the appellant. The prosecution witnesses are natural witnesses and trustworthy witnesses. The appeal lacks merit and is liable to be dismissed.

12. P.W.-1 Lalman Verma was the S.O. of Police Station Kishani, District Mainpuri at the time of incident. He is the first informant. The F.I.R. was lodged on his oral version. He states that on 30.7.1981 he left police station at 8.10 P.M. in the night for checking and raid of Shobran gang along with other police personnels including Dhani Ram Sharma, S.I. Babu Lal Saraswat, S.I. K.P. Singh and S.I. D.V. Singh. He took arms and ammunition including V.L.P. He further stated that when he reached little ahead from village Arsara, he heard some persons talking near the Dharmshala. Suspecting on them he flashed his torch and found that about 6 or 7 miscreants were present there. He challenged them and miscreants also asked as to who he was. When he disclosed that he was police of Kishani, the miscreants with an intention to kill the police opened fires on the police party. He further stated that in self defense police fired on the miscreants and there was sufficient light. The miscreants tried to run away but Pheru Singh was caught on spot with a gun and six live cartridges which were sealed and recovery memo was prepared which is Ex. Ka-1. He also took the empty cartridges of V.L.P. and 303 bore fired by the police and also collected three empty cartridges of 12 bore which were fired by the miscreants. He proved that he brought the accused Pheru Singh along with the gun and cartridges etc. and lodged the F.I.R. which is Ex.Ka-4 which is an oral report.

13. P.W.-2 Ram Lakhan Singh is the person who states to have accompanied S.O. Lalman Verma P.W.-1 and other police officials when they had left the police station for search and raid of Shobaran gang. He has proved the recovery of gun and arrest of the accused-appellant.

14. P.W.-3 Babu Lal Saraswat Sub-inspector, was also one of the members of police team who had also accompanied Lalman Verma P.W.1. He has also corroborated the prosecution version. While being recalled and re-examined, he has stated that he identifies the writing of chowki In-charge, Kusmara, S.R. Sehra. Fard Ex. Ka-5 of torch, the site plan Ex. Ka-6, charge sheet Ex. Ka-7 and 8 are in his writing. He also identifies the signature of the then District Magistrate, Mainpuri in the order granting sanction for prosecution under the Arms Act which was Ex. Ka-9 to the records. The said three witnesses were given suggestion that no such incident had taken place. Due to partibandi in village on the saying of Prakash Thakur in the village the accused-appellant was taken to the police station to which they denied.

15. The incident in the present case is said to have taken place at about 09.00 P.M. on 30.7.1981. It was a night incident. The prosecution case is of seeing the miscreants from light of torch. The said torch was recovered and given into supurdagi on 15.8.1981 which is after 15 days of incident. The prosecution case as per the F.I.R. is of 6-7 persons being seen by the police team, after which fire from both sides took place and then 5-6 persons are said to have ran away although the police claims to have identified four other miscreants but could not identify two other persons. Only appellant as is stated to have been apprehended at the place of occurrence and was tried and convicted. The other accused persons were not tried. In spite of firing by the miscreants from a close range and that too from 12 bore weapon, no police personnel received any injury. It appears that even the pellets missed the police persons. There is no independent and public witnesses to the incident. The alleged recovered weapon was produced from the police station. The link evidence in so far as it relates to keeping of the weapon at its appropriate place after recovery is missing. G.D. of rawangi of police personnels of the concerned police station has not been produced in the court. P.W.-3 Babu Lal Saraswat has in his cross-examination stated that no Fard of recovery was given to the accused. Therefore, this Court comes to conclusion that the trial court has erred in convicting the accused-appellant. The prosecution has failed to established its case beyond reasonable doubt against the appellant and he is entitled to be given the benefit of doubt.

16. The appeal is thus allowed and the accused-appellant is acquitted.

17. He is on bail. His bail bonds are canceled and sureties are discharged. He need not surrender.

(Samit Gopal,J.)

Order Date :- 26.05.2022.

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