Badri vs State

A.N. Dikshita, J.—This is an appeal filed by Badri against the judgment and order dated 11-11-1978 convicting him u/s 307 IPC and Section 25 of the Arms Act and sentencing him to five years'' RI and to three years'' RI respectively, both the sentences to run concurrently.

In brief, the prosecution version is as follows: On the night between 10/11th November 1976, SI Gyan Prakash Sharma, S.O. of Police Station Pahasu along with constables Chabi Nath, Rishipal and Balister proceeded for patrol duty. When they reached at about 3.00 a.m. in village Dighi they noticed a person sitting on the western side of the culvert on Khurja Pahasu road. On being questioned by the police party from a distance of about 20 paces the said person fired a shot at the police party. The shot missed and none was injured. After firing the shot that person ran towards village Atarna. The police party gave a chase and succeeded in over powering the miscreant at a distance of about 30 paces. Some injuries were caused to the miscreant. On enquiry the miscreant revealed his name as Badri son of Chet Ram resident of village Karora, P.S. Pahasu. On a search being made a country made pistol with an emepty cartridge in its barrel and five live cartridges were recovered from the person of the accused. The recovered articles were sealed on the spot.

A first information report of the incident was lodged by SI Gyah Prakash at P.S. Pahasu at 5.50 a.m. on 11-11-1976, the police station being at a distance of about 2 miles from the place of occurrence.

Sri Virendra Singh, SI started the investigation of the case. He recorded the statements of the witnesses and inspected the site and prepared the site plan the same day. On the same day he also submitted a charge sheet against the accused-Appellant u/s 307 IPC and Section 25 of the Arms Act. The necessary sanction for the prosecution of the Appellant u/s 25, Arms Act, was obtained from the District Magistrate.

In support of its case the prosecution examined Chabi Nath, PW 1, Shishpal Singh, Head Moharrir, PW 2, Gyan Prakash, SI, PW 3, and Virendra Singh PW 4.

The Appellant pleaded not guilty and stated that he had been falsely implicated by the police as he was acquitted by the Court in some cases which were launched against him by the police. He also denied any recovery from his possession. He further stated that he had been arrested from his house. Bemlesh, DW 1, was examined by the defence to prove its version.

The trial Court after considering the evidence on record disbelieved the defence version and believing the prosecution evidence convicted and sentenced the Appellant as aforesaid.

I have heard the learned Counsel for the Appellant as well as the learned State Counsel and have also gone through the evidence on record. The learned Counsel for the Appellant submitted that on the basis of the prosecution evidence which suffers from improbabilities the conviction of the Appellant could not be sustained. He also submitted that the defence version which was more probable has been wrongly discarded by the trial Court. He further submitted that in any case the probability of the Appellant''s false implication by the police could not be ruled out as on earlier occasions the police had failed to achieve the conviction of the Appellant in the cases launched by it.

Now I proceed to examine the prosceution evidence in the light of the submissions made before me. Chabi Nath, PW 1, who is a constable was accompanying SI Gyan Prakash on patrol duty on the night in question. In his examination-in-chief Chabi Nath has given out the prosecution version in the same manner as already narrated above. He has also corroborated the recovery. This witness admitted in his cross-examination that the Sub-Inspector was having a torch; that the torch was not used by the Sub-Inspector; that he could not remember whether it was a dark night or a moon-lit night and that the Sub-Inspector was having a revolver, Balister and Rishipal had guns while the witness was having a lathi. It seems importable that inspite of a torch being there it was not used. It also seems quite improbable that inspite of arms being with the police neither a warning was given to the accused that in case he tried to ran away he would be shot at nor any fire was shot by the police to frighten the Appellant. The statement of this witness; further is that he was continuously giving lathi blows to the Appellant while chasing him. Knowing that the Appellant was armed with a country made pistol it is difficult to believe that this witness would have still gone so close to the Appellant and would have given continuous chase and lathi blows to him. The G.D. entry No. 4 at 5.50 a.m. dated 11-11-1976 shows the following injuries on the person of the Appellant:

Bayen tang par chote, khoon aaluda, done ghutno, pindliyon, gatton wa panjon par jagha jagha chote. waram wa nilgoon.

It is difficult to believe that inspite of the above injuries on the hands also the pistol in the hands of the Appellant was not loosened nor fell down. It is also difficult to believe that inspite of the Appellant having run an appreciable distance the cartridges in his shirt pocket remained intact and did not fall. Chabi Nath, PW 1, also admitted that the Abadi of the village was at a distance of about 30-35 paces from the place of occurrence and yet nobody came out. This is also unbelievable. The improbabilities in the statement of Chabi Nath, PW 1, render his statement unreliable and unworthy of reliance. It must, therefore, be discarded.

The evidence given by Shish Pal Singh, PW 2 who took down the report at the dictation of Gyan Prakash, SI and the evidence of Virendra Singh, SI, PW 4 is of formal nature and need not be discussed in detail. Regarding Virendra Singh PW 4, the investigating officeir, it is, however, remarkable to find that in this case he completed all the formalities of the investigation including the submission of the charge sheet in one and the same day. His promptness is clouded with dubiousness. He did not send the recovered pistol to Ballistic Expert. His haste also does cast grave doubt about the truthfulness of the prosecution case.

Now we come to the evidence of the main architect of the prosecution case Gyan Prakash, PW 3, SI who was heading the patrolling police party. He too has given the prosecution version in the same manner as given out above. He has admitted in his cross-examination that even after the firing by the Appellant no body of the police party fired or tried to fire towards the Appellant in defence though he was visible. He also admitted that he made no efforts to find out and trace the pellets from the scene of occurrence. He also admitted that the sealed cover of the recovered articles did not bear any signatures on it. He admitted that signatures of the witnesses were necessary but he forget to obtain them. This witness contradicts Chabi Nath, PW 1, and states that the Appellant fell down after receiving one lathi blow. The testimony of this witness also cannot be implicitly relied upon and deserves to be discarded. The recovery of the incriminating articles from the Appellant also becomes doubtful.

Another intriguing feature of this case is that the prosecution has alleged that at the time of the arrest the Appellant was wearing only a shirt. It was a winter season and at 3.00 a.m. it is not believable that in open the Appellant would have been sitting there without any woolen clothe.

From the foregoing discussions it is clear that the prosecution version cannot be believed. The defence of the Appellant was that he had been falsely implicated by the police due to enmity. The judgment of the trial Court shows that Badri Appellant was acquitted in Sessions Trial No. 95 of 1972 under Sections 399/402 IPC and Section 25, Arms Act, and in Criminal Case No. 9 of 1973 u/s 379 IPC. Consequently the possibility of the police being hostile towards the Appellant and his false implication in this case cannot be ruled out. The conviction of the Appellant u/s 307 IPC and Section 25 of the Arms Act is, therefore, not based on cogent and reliable evidence and he is entitled to be acquitted.

In the result the appeal is allowed and the conviction and sentences of the Appellant are set aside. He is acquitted. He is on bail and he need not surrender. The bail bonds are discharged.