Bharsa vs State of U.P.

A.N. Dikshita, J.—Having been convicted and sentenced to undergo rigorous imprisonment for 4 years u/s 412 IPC by Sri B.K. Rathi, III Addl. Sessions Judge, Muzaffarnagar vide his judgment and order dated 18-12-1978 in S.T. No. A 240 of 1977 this appeal has been preferred by the Appellant against it.

The prosecution story as stated is that a dacoity was committed at the house of Kailash Chandra in town Baghra, P.S. Titavi, Muzaffarnagar in the night between 9th and 10th April, 1976 at about 2 a.m. by about 25-30 dacoits. Besides looting the property and ransacking the house of the victim a double barrel gun No. 7406(sic)00 licensed in the name of Kailash Chandra and the bandoleer of the cartridges were also taken away by the dacoits. Kailash Chandra was shot dead at the time of the incident. A report of the incident was lodged by Anil Kumar son of Kailash Chandra at the police station Titavi on the same day (10-4-76) at 4 a.m. The case was registered and the investigation was entrusted to Ratan Singh, Station Officer Titavi.

The prosecution story further reveals that later on Raja Ram Pal, Station Officer, Mawana, Meerut arrested one Dharam Pal on 18-1-1977 resulting in the recovery of illicit arms from his possession. Dharam Pal further informed Raja Ram Pal, Station Officer, Mawana that a gang of dacoits is assembling in the Kotha of Babu Pandit on Garh-Meerut road near the Medical College by the side of the old brick-kiln of Prem Nath to commit dacoity at the house of Chaudhary Chhattar Pal Singh. Acting on this information Raja Ram Pal, Station Officer Mawana took police force from the police: station, Civil Lines, Meerut as well as witnesses Ram Chandra and Munshi Singh from the tea-stall near the Medical College, Meerut. The witnesses were disclosed the purpose. Three parties of police personnel and witnesses were formed by the Station Officer Raja Ram Pal. He made himself in-charge of the first party while Sub-Inspector B.S. Char and Sub-Inspector Mahipal Singh were made in-charge of the second and third parties. It is alleged that at about 11 p.m. the dacoits started coming and started talking while sitting near the Kotha. On being challenged by (sic) a Ram Pal, Station Officer. Mawana shots were fired towards the police party by the dacoits which was rep(sic)ied. The police succeeded in capturing and arresting few dacoits including Bharsa the Appellant. On a search being taken of Bharsa double barrel gun and 24 live cartridges in the bandoleer besides two used cartridges were recovered from his possession. The two used cartridges were found in the gun. The weapon and the catridges were sealed in a bundle and Bharsa along with other persons who arrested at the site were taken to the police station, Meerut. A report of the incident was lodged by Raja Ram Pal at about 2.15 a.m. at P.S. Civil (sic), Meerut.

Ratan Singh, Station Officer, Titavi on coming to know on 21-1-1977 about the arrest of Bharsa immediately went to Meerut. The statements of Sub-Inspector B.S. Cha(sic) and Ram chandra and Mushi Singh the two persons who were taken from the tea-stall were recorded by Mation officer Titavi Ratan Singh. After inspecting the place of incident a s te-plan was prepared. The statement of Raja Ram Pal, Station Other was also recorded.

After necessary investigation a charge-sheet u/s 412 IPC was filed against Bharsa.

Accused Bharsa pleaded not guilty to the charge. He denied his arrest at the spot. He further denied the recovery of the gun and the cartridges from his possession. It was very emphatically asserted by the accused Bharsa that he has been falsely implicated on account of his refusal to become a witness in a case of murder which was committed in his village and this denial ted to his false implication by Raja Ram Pal, Station Officer, Mawana, Meerut who was the Station Officer, Police Station Titavi at the relevant time.

In support of the prosecution version Ram Chandra and Munshi Singh the two witnesses who were taken by Raja Ram Pal, Station Officer on 18-1-1977 from the tea-stall on the gate of Medical College were produced as PW 1 and PW 6 respectively in respect of the incident as well as the recovery of the gun and the cartridges from the possession of Bharsa. Raja Ram Pal, Mation Officer was also examined as PW 3 to support the prosecution version that the gun and the cartridges were recovered from the possession of Bharsa. Anil Kumar was also examined as PW 2 to testify that at the time when dacoity was commuted at his house on 10-4-76 at about 2 a.m. the dacoits had taken away the licensed double ba(sic)l gun bearing gun No. 7406000 of his father Kailash Chandra and the bandoleer of the cartridges. Rameshwar Das an Arms Clerk in the office of Collectorate, Muzaffarnagar was produced as PW 4 for the purpose that gun no 7406000 was licensed in the name of Kailash Chandra S/o Jhandoo Singh and for which a license was given on 26-12-74.

The trial Court on the question as to whether the prosecution has proved that the possession of the gun was transferred after committing dacoity on 10-4-76 came to the conclusion that the said gun was taken away by the dacoits. The accused, however, did not dispute the commission of the dacoity at the house of Anil Kumar as well as the taking of the gun by the dacoits. The trial Court thus found proved that the gun belonging to Kailash Chandra lather of Anil Kumar was the gun which was taken away by the dacoits after committing dacoity on 10-4-76 and the gun was transferred thereafter.

As regards the other point as to whether the prosecution has proved beyond reasonable doubt about the recovery of the gun from the possession of the accused Bharsa on 18-1-1977 the trial Court also found it to have been proved by the prosecution.

A controversy as regards the recovery of the gun on 18-1-1977 was raised by the accused during the trial in view of the statement of the Investigating Officer Ratan Singh, Station Officer that the gun was recovered on 19-1-1977 and the charge-sheet also showing the recovery of the gun and the arrest of the accused on 19-1-1977. However, the Court repelled the argument advanced on behalf of the accused Bharsa.

The statements of Ram Chandra and Munshi PW 1 and PW 6 respectively were believed as regards the recovery of the gun from the possession of the accused Bharsa as it was coupled with the statements of Raja Ram Pal PW 3. Ram Chandra PW 1 and Munshi Singh PW 6 were found to be independent by the trial Court and on this assumption the trial Court found that their statements being credible cannot be disbelieved. The manner in which the police party approached Munshi Singh and Ram Chandra who were friends and known to each other was also not doubted by the trial Court. The presence of Munshi Singh PW 6 as well as Ram Chandra PW 1 at the tea-stall near the Medical College was believed by the trial Court on the edifice that the wife of Munshi Singh Smt. Chandra Kala who was seriously ill was got admitted in the Medical College. It was after admitting her that Ram Chandra and Munshi Singh came to the tea-stall situate on the outskirt of the Medical College to sip a cup of tea.

The defence in order to discredit the prosecution version and particularly the presence of Ram Chandra PW 1 and Munshi Singh PW 6 at the tea-stall when they were approached by Raja Ram Pal, Station Officer, PW 3 produced one Shish Pal Singh as DW 1. Shishpal Singh as DW 1 stated that no patient in the name of Smt. Chandra Kala wife of Munshi Singh was ever admitted in the Medical College on 18-1-77 or thereafter as is evident from the relevant register which was produced by Shishpal DW 1. This witness further stated that necessary formalities in order to seek admission in the deposit of necessary fee was not complied with. The pith and substance of the statement of DW 1 was that in the absence of formalities having been complied with as well as from a perusal of the register no patient of the name of Smt. Chandra Kala was ever admitted in the Medical College on the said date i.e. 18-1-77 or even on 19-1-77. However, the statement of Shish Pal DW 1 was found to be not correct by the trial Court on weighing the testimony of Ram Chandra PW 1 and Munshi Singh PW 6 and was thus discarded as unworthy of any credence.

The trial Court further also did not consider it appropriate to place any reliance on certain minor contradictions in the statements of Ram Chandra PW 1, Raja Ram Pal PW 3 and Munshi Singh PW 6.

Believing the prosecution story having been proved beyond reasonable doubt and discrediting the defence version and the unbelievable testimony of Shish Pal DW 1 the trial Court found accused Bharsa guilty of the offence punishable u/s 412 IPC and convicted him accordingly sentencing to undergo RI for four years.

learned Counsel for the parties have been heard at length.

learned Counsel for the Appellant has strenuously urged that the prosecution has miserably failed to establish beyond reasonable doubt the guilt of the appellent Bharsa. It has been urged that the trial Court fell in error in convicting Appellant Bharsa u/s 412 IPC and sentencing him to undergo RI for four years. It has been vigorously stressed by the learned Counsel for the Appellant that the presence of Ram Chandra PW 1 and Munshi Singh PW 6 has not been conclusively proved at the tea-stall and the prosecution version that Raja Ram Pal PW 3 took them at about 10 p.m. from the tea-stall in front of the Medical College is unworthy of reliance and is in fact highly incredible. There appears to be substantial force in this submission. Admittedly Ram Chandra PW I and Munshi Singh PW 6 are friends and the former had accompanied latter when his wife seriously took ill for being admitted to the Medical College. Both the witnesses have tried to show that after admitting Smt. Chandra Kala wife of Munshi Singh they both came out to enjoy a cup of tea at the tea-stall Once a serious doubt has been created as regards the admission of Smt. Chandra Kala in the Medical College, the very basis on which the prosecution has founded its case that Raja Ram Pal PW 3 took Ram Chandra PW 1 and Munshi Singh PW 6 appears to be highly doubtful. The registers and the non-achievement of the formalities for admission of a patient in Medical College clearly show that no patient in the name of Smt. Chandra Kala wife of Munshi Singh was ever admitted. While scanning the testimony of Munshi Singh PW 6 it is manifest that this witness is not speaking truth and his testimony appears to be highly tainted. His statement creates such a reasonable doubt about the story of his wife''s illness and her admission in the Medical College that it is beyond the comprehension of a reasonable person. This witness initially states that Shankar Lal and Lal Singh had accompanied him to the Medical College alongwith his wife. He then states that Ram Chandra also was with him. Such an improvement in his statement by this witness smacks of ingenuity. However, it is very surprising that this witness does not know the room number or the bed number where his wife was lying with serious ailment. Moreover the deposition of this witness that Ram Chandra PW 1 also accompanied him has been denied by Ram Chandra PW 1 himself who states that on coming to know about the illness of the wife of Munshi Singh PW 6 he had gone to Medical College to see her. Munshi Singh PW 6 has deposed that he had reached the Medical College at about 9 p.m. while Ram Chandra PW 1 states that he was present in the Medical College from 4 p.m. The statements of Ram Chandra PW 1 and Munshi Singh PW 6 appear to be untrustworthy, false and unbelievable and in any case the presence of these two witnesses at the tea-stall as alleged by the prosecution has not been established beyond reasonable doubt. Implicit reliance as such cannot be placed on the statements of these two witnesses Ram Chandra PW 1 and Munshi Singh PW 6. A serious dent having been created in the prosecution story as regards the presence of these two witnesses and their latep accompanying the police party thus appear to be highly doubtful.

Further more learned Counsel for the Appellant has strenuously urged that the prosecution has failed to prove beyond reasonable doubt that the recovery of the gun was made from the possession of Appellant Bharsa. Material contradictions have been highlighted inasmuch as Ram Chandra PW 1 has not supported the version of Raja Ram Pal PW 3 as regards the formation of three parties by the latter. This witness has further stated that he was taken from the road towards the Kotha where six persons were arrested by the police inside it. It has further been stated by him that no witness ever entered the Kotha except the police personnel and he remained standing outside and thus persons who were arrested were taken out of the Kotha by the police. He further goes on to depose that neither the miscreants fired any shot nor was it ever replied by the police while prosecution version is that on being challenged by the police, the dacoits fired at them which was replied. If firing was resorted to by the dacoits except for two used cartridges in the gun as alleged by the prosecution no other ammunitions or empty cartridges or fire-arm was found. This witness only states of one used cartridge having been found thus discrediting the prosecution version that two used cartridges were allegedly found in the gun recovered from the possession of Bharsa. There is no doubt that Ram Chandra PW 1 was ever known to Bharsa. At the time of the incident there was no light. However, Bharsa was not put to identification and human memory would not be as stable as the case of this witness so as to narrate that the gun was recovered from Appellant Bharsa. This witness while supporting the prosecution version initially came out with a different version altogether in his cross-examination thus compelling the prosecution for his re-examination thereby giving an expression that he has been won over. In each and every case where during the cross-examination the testimony of a witness is found to be assailable or unworthy of reliance it would not give a lever to the prosecution to declare him hostile or to claim cross-examination. Munshi Singh has appeared as PW 6. He has tried to support the prosecution version but as discussed above his presence has been found to be highly doubtful at the tea-stall. His accompanying the police personnel to Kotha does not inspire confidence. This witness has materially contradicted the prosecution version about their arrest from inside the Kotha when he states that all these miscreants were arrested below a Pilkhan tree. This witness was also not known to Appellant Bharsa from before and in the absence of any identification having been done a very serious doubt is created as to how he could remember and recognise Bharsa after about 1-3,4 years. From the above appraisal the very presence of these two witnesses regarding recovery of gun and cartridges from the possession of accused Bharsa becomes highly doubtful. Their mythful versions only require to be discarded.

Another feature as is revealing from the prosecution version is that the gun and cartridges which were allegedly recovered from the possession of Appellant; Bharsa were wrapped and sealed at the site but the signatures of these two witnesses Ram Chandra PW 1 and Munshi Singh PW 6 were not taken on that wrapper. No doubt Raja Ram Pal PW 3''s signatures are on this wrapper. Why the signatures of Ram Chandra PW 1 and Munshi PW 6 were not taken on the wrapper is shrouded in mystery which has not been unravelled by the prosecution. This circumstance thus by itself creates a serious doubt and the recovery of the gun and the cartridges from the possession of the Appellant Bharsa has not been established beyond reasonable doubt by the prosecution. The sealing of the gun and the cartridges was done in the light of the torch as stated by Raja Ram Pal PW 3 while Munshi Singh PW 6 has stated that necessary formalities were accomplished after lighting a candle-stick. Such contradictions only explode the myth of the prosecution version.

Another startling feature of the case is that Ratan Singh PW 7 has stated that the accused Bharsa was arrested on 19-1-1977 and the gun and the cartridges were recovered from the person of the Appellant Bharsa on 19-1-1977. Charge-sheet was prepared on the basis of the recovery of the gun and the live cartridges as well as the used cartridges from the person of Appellant Bharsa thereby showing that they were recovered on 9-1-1977. However, departing from the allegations in the charge-sheet and the conclusions of the Investigating Officer that the gun and the cartridges were recovered on 19-1-1977, the trial Court while examining the accused u/s 313 Code of Criminal Procedure on 29-11-1978 had put question No. 3 indicating 18-1-1977 as the date of his arrest and the recovery of the gun and the cartridges from the person of the accused Bharsa. The accused has denied the allegations of question No. 3 stating that it is all false. Such a discrepancy has very seriously prejudiced the Appellant when the charge-sheet discloses the date of his arrest and the recovery of the gun and cartridges on 19-1-1977 while the entire prosecution version is that the accused Bharsa was arrested on 18-1-1977 when arms and cartridges were recovered from his possession. It is thus contended that the charge-sheet having been wrongly framed the charge regarding recovery of the gun and the cartridges from the possession of Appellant Bharsa on 19-1-1977 would not sustain. The Court-below dispelled this assertion on behalf of the Appellant holding that the charge-sheet may be erroneous on account of the negligence of Ratan Singh S.O. PW 7 but the FIR and the g(sic) diary entries clearly show about the arrest of the Appellant and recovery of the gun and cartridges on 18-1-77. Manifestly the accused has failed to show any prejudice having been caused to him but still then such a lapse or error on the part of the prosecution cannot be ignored as the very prosecution story becomes unreliable and in any case highly doubtful so as to hold the accused Bharsa guilty and warrant his conviction. It is not always that the prosecution may succeed on the basis that no prejudice has been caused to the accused but the sacred duty of bringing home the guilt against the accused has to be conclusively discharged. This view finds support from the decision in S. Harnam Singh Vs. The State (Delhi Admn.), . Further there appears to be no answer that the accused was falsely implicated on account of his denial to appear as a witness in a murder case in which Raja Ram Pal, PW 3, was at the relevant time Station Officer, Titavi, Muzaffarnagar. The statement of an accused recorded u/s 313 Code of Criminal Procedure cannot be ignored lightly and has to be given due weight and adequate emphasis while recording the guilt against him. Such a statement may not be sacrosanct but certainly it deserves consideration which has been utterly wanting in the instant case. From the above it is apparent that the prosecution has not successfully succeeded in establishing the case against the accused by fair, truthful and reliable testimony. On the other hand the prosecution story is highly doubtful and the guilt of the Appellant has not been established beyond reasonable doubt. The Appellant is thus entitled to the benefit of doubt.

Before parting with this appeal certain facts travel in the mind which appear to be incomprehensible as well as contrary to human conduct. Public witnesses coming forward to help the prosecution by truthful depositions in bringing home the guilt of the accused may be an ideal spectacle showing consciousness and moral duty towards the welfare of the people and to the persons who are responsible for administration but alas it is a goal, however, radiant it may appear, has yet to be achieved. Time and again Courts have frowned upon this aspect of the investigation in securing interested witnesses who by their tutored testimony no more injustice than help the investigation. In this case Raja Ram Pal, PW 3, has stated in his evidence that while approaching Ram Chandra PW 1, and Munshi Singh, PW 6, for accompanying him to nab the dacoits, he had disclosed the purpose to them. Still knowing the purpose which may invite danger to their lives the two witnesses Ram Chandra PW 1 and Munshi Singh PW 6 accompanied Raja Ram Pal PW 3. This aspect that a person would ignore his ailing wife and accompany the police party to nab the dacoits where there was a likelihood of an encounter appears to be highly incomprehensible. The testimony of the witnesses which the prosecution proposes to rely should be unpolluted and natural It should not smack of unrealistic version and the realities to ''he situation shall be taken into account. Instances have come across thus handicapping the investigation that persons who had actually seen an incident refrain from appearing in the witness box, may be obviously for various and multiple reasons, but here ignoring his ailing wife and inviting danger to their person Ram Chandra PW 1 and Munshi Singh PW 6, accompanied the S.O. Raja Ram Pal, PW 3, which wholly belies human conduct. This is also one of the reasons that the prosecution version appears to be unbelievable.

In the result the appeal succeeds and is allowed. The conviction of the Appellant u/s 412 IPC and the sentence of four years'' R.I. awarded by the trial Court are set aside. The Appellant is on bail. He need not surrender and his ball bonds are discharged.

Appeal allowed.