Jai Singh and others vs State of U.P.

Vinod Prasad, J.—Four appellants Jai Singh (A-1), Raja Ram (A-2), Kalloo (A-3) and Ajay Pal (A-4) are aggrieved by their conviction and sentence judgment dated 31.7.1981, passed by IVth Additional Sessions Judge, Budaun in two connected trials, S.T. No. 120 of 1979, State v. Jai Singh and others and S.T. No. 121 of 1979. State v. Jai Singh, relating to P. S. Rajpura, district Budaun. (A-1) has been convicted u/s 392/397, I.P.C. and 25 of the Arms Act and has been sentenced to seven years and two years R.I. respectively for those offences. (A-2), (A-3) and (A-4) have been convicted u/s 392, I.P.C. with sentence of four years'' R.I. for the said crime, (A-4) has further been convicted u/s 411. I.P.C. with sentence of two years R.I. for it. Both the sentences of (A-1) and (A-4) were directed to run concurrently by the learned trial Judge. It is this conviction and sentence which is under challenge in the instant appeal. Shorn of unnecessary eschewable details, prosecution allegations against the appellants, in nutshell, as was sketched in the written F.I.R., exhibit Ka-1, by the informant Bahadur Singh (P.W. 1) were that he had gone to Anoop Shahar market to sell ground-nuts starting from his house at 7-8 a.m. and had reached the said market before mid-noon. After selling the ground-nuts, he had purchased a bed-sheet from the market which he had kept in a carry bag. Pooran Singh and Master Ram Kumar (P.W. 2) met (P.W. 1) in the market and all the three were returning back to their village. Informant was slightly ahead of rest of the two and when he reached near Gauri Shanker''s brick klin, all of a sudden, four miscreants, sprang up from road side ditch and rounded up the informant and robbed him of his bed sheet with carry bag, at country made pistol point, which was wielded by one of the robbers. Rest of the three miscreants were armed with blunt objects. Informant (P.W. 1) raised hue and cry which attracted (P.W. 2), Ram Prasad, Devi, Ram Swaroop and many others towards the scene, who all surrounded the miscreants and after belabouring them, apprehended them at the spot, who all later on disclosed their identities as Jai Singh (A-1) from whom country made pistol, eight hand filled cartridges and three factory made cartridges were recovered. Raja Ram (A-2), Kalloo (A-3) and Ajay Pal (A-4). The carry bag and bed sheet was recovered from the possession of (A-4). Soon after the incident, a Head Moharrir and two constables of police outpost Gawan also arrived at the scene and with their help apprehended accused alongwith recovered weapons and looted articles were brought to Police Station Rajpura, district Budaun, covering a distance of 12 kilometres, where the informant lodged his written F.I.R. exhibit Ka-1, already scribed by Ram Kumar (P.W. 2), the same day at 9.15 p.m., under Sections 392 and 397, I.P.C.

Head Moharrir Chandra Pal Singh registered the written report, prepared chick F.I.R. exhibit Ka-2 and the relevant G.D. entry exhibit Ka-3. Head Moharrir also recovered and seized the weapon, the cartridges and the looted bed-sheet and had also lodged the apprehended accused in police lock up. From appellant (A-3) a looted handkerchief and a wrist watch were also recovered. Seizure memo of country made pistol and the cartridges is exhibit Ka-4, that of bed-sheet is exhibit Ka-5, However, no seizure memo of the wrist watch was got proved by the Head Moharrir (P.W. 3). Bed sheet and carry bag are material exhibit 1, and country made pistol and live cartridges are material exhibits 2 to 4.

Investigation into the crime was commenced by S.I. Man Singh Sirohi (P.W. 5) who interrogated the informant and fact, witnesses. Ram Kumar and Pooran Singh, at the police station and recorded their statements. Thereafter, he interrogated the apprehended accused. Subsequent thereto. Investigating Officer interrogated the police constables and, on the following day, conducted spot inspection and prepared site plan exhibit Ka-6. After conclusion of the investigation, (P.W. 5) had charge-sheeted all the accused, vide exhibit Ka-7. Separate charge-sheet was filed against accused (A-1) u/s 25 of the Arms Act, vide exhibit Ka-8.

The sanction for the prosecution of appellant (A-1) was proved by Ram Narain, Arms Clerk (P.W. 6) who had produced the charge-sheet before the then District Magistrate, Sri Subhash Chandra Agarwal, who had accorded sanction (exhibit Ka-9) for prosecution of the said appellant u/s 25 of the Arms Act.

Charge, sheeting of the accused resulted in their summoning and their case was committed to Sessions Court, where it was registered as two separate trials being S.T. No. 120 of 1979 against all the accused-appellants, under Sections 392, 397, 411, I.P.C. and S.T. No. 121 of 1979, State v. Jai Singh, u/s 25 Arms Act. Since both the trials emanated from the same incident and the witnesses were common, therefore, the IVth Additional Sessions Judge, Budaun, clubbed them and conducted a joint trial.

Vide, separate orders, both dated 23.11.1979, all the accused were charged u/s 392. I.P.C. Accused Jai Singh was further charged u/s 397, I.P.C. and 25 of the Arms Act. The charges were read out to the accused who denied the same and claimed to be tried and consequently, to establish their guilt, and bring home the framed charges, their prosecution commenced, during course of which, prosecution relied upon oral testimonies of six witnesses out of whom informant Bahadur Singh (P.W. 1) and scribe of the F.I.R. Master Ram Kumar Tiwari (P.W. 2) were fact witnesses. Formal witnesses included S.I. Chander Pal Singh (P.W. 3), S.I. Natthu Singh (P.W. 4), S.I. Man Singh Sirohi (P.W. 5) and Clerk Ram Narain (P.W. 6).

u/s 313, Cr. P.C. accused abjured incriminating circumstances appearing against them in the prosecution evidences and they pleaded their false implication. (A-1) also took the defence that the Head Moharrir Natthu Singh (P.W. 4) was inimical to his brother-in-law Happu, because of which, he was harbouring animosity with him and, therefore, he has been implicated. On the date of the incident he had gone for a holy dip In the Ganges and from the fair he was arrested a day earlier and some money was snatched away from him by P.W. 4, who then got him implicated in the incident. (A-2), (A-3) and (A-4) further took the defence that they had bathed in the Ganges at the embankment of Hari Baba from where they were arrested and booked in the crime. Accused examined Dr. Ram Kumar Verma, M.O. District Jail. Budaun, as defence witness, to prove their injury reports as exhibits Kha-1 to Kha-4, which are reproduced herein below :

Examined Kalloo son of Ram Swaroop about 20 years old r/o Chandausi P/S Chandausi Distt. Moradabad on 9.1.1979 at 12.30 noon.

M.I. : Two surface mole on the left side chest 2-3/4 cm. apart at 10 ''o'' clock position from the left nipple.

In : (1) Lacerated wound-3-1/2 cm. x 1 cm. x bone deep on the back of the scalp. Adv. X-ray.

(2) Multiple contusion with traumatic swelling extending all over the Rt. hand. Adv. X-ray. Rt. hand for suspected fracture of the 1st metacarpal bone of the ring finger.

(3) Adv. X-ray.

Caused by blunt weapons

Duration : About three and half days.

Sd. 9.1.1979

Examined Jai Singh s/o Sukhi about 21 years old r/o village Narauli Narola P. S. Kurh. Fatehgarh, Distt. Moradabad on 9.1.1979 at 12.40 noon.

M.I. : Surface mole on the left side abdomen. 12 cm. away from the umbilicus 3 o''clock position.

Injuries (1) Abraded contusion on the front side of the middle of the left leg 5 cm. X 2 cm. in size.

Injury : Simple

caused by blunt weapon.

Duration : about three and half days old.

Sd. 9.1.1979

Examined Ajay Pal Singh s/o Pratap Singh about 19 years old. r/o Maula Gadh P.S. Chandausi

district Moradabad on 9.1.1979 at 1.10 noon.

M.I. : Old scar on the outer part (left side) of the forehead.

Injuries : (1) Lacerated wound on the left side of the scalp mid position 11 cm. above the left ear. 5 cm. x 1 cm. x bone deep.

(2) Contusion on the back of the left forearm mid portion 8 cm. x 2 cm. in size.

(3) Multiple contusion with traumatic swelling on the left ankle and left foot.

Sd. 9.1.1979

Examined Raja Ram s/o Budhi about 21 years old r/o Maula Garh P/s Chandausi Distt. Moradabad on 9.1.1979 at 1.00 noon.

M.I. : Linear scar 2 cm. x 1/7 cm. in size on the outer side middle of the left upper arm.

Injuries : (1) Lacerated wound on the front portion. On the scalp 6 cm. x 1 cm. x skin deep 8 cm. above the Rt. eyebrow.

(2) Lacerated wound 2-1/2 cm. x 1/2 cm. x skin deep on the left side of the forehead. 4 cm. above the left eyebrow.

(3) Multiple contusion with traumatic swelling on the whole of the Rt. Hand. Adv. X-ray for suspected fracture of IInd meta-carple bone.

(4) Contusion with traumatic swelling on the outer part of the left ankle.

Sd. 9.1.1979

IVth Additional Sessions Judge, Budaun/Trial Judge, after looking into the prosecution and defence evidences, various exhibits and after critically appreciating testimonies of witnesses, concluded that the prosecution had successfully established the charge under Sections 392/ 397, I.P.C. against (A-1) and charge u/s 392. I.P.C. against rest of the three appellants. It also concluded that against (A-4) charge u/s 411, I.P.C. was also established'' beyond any shadow of doubt. Ld. trial Judge further concluded that offence u/s 25 Arms Act was also proved to the hilt against (A-1) and, therefore, on all aforesaid counts, it convicted and sentenced the appellants, as has already been mentioned in the opening paragraph of this judgment and consequently the same are being eschewed from being repeated. Hence, this appeal by the convicted accused appellants.

Pendente lite their appeals in this Court, (A-1) expired and consequently his appeal was abated, vide order dated 12.10.2006, which has now left this Court to consider and decide appeals of rest of the three convicted accused, i.e., (A-2), (A-3) and (A-4).

When the appeal was called out for hearing nobody appeared to argue for the appellants and consequently Sri Harish Chandra Tiwari, advocate was appointed as amicus curiae by this Court on 19.1.2010. I have heard learned amicus curiae in support of the appeals by three surviving appellants and learned A.G.A. for respondent State.

Assailing and sniping impugned judgment of conviction and sentence, it was argued that the prosecution had failed to establish the factum of purchase of bed-sheet and it''s looting and, therefore, entire prosecution case is disproved and consequently the conviction of the appellants are unsustainable. It is further submitted that both the fact witnesses are unreliable and no credence can be attached to their testimonies. Four persons variously armed were alleged to have executed the crime and were alleged to have been apprehended at the spot but they did not attempt to resists and cause any hurt to any of the prosecution witnesses, and contrary to it, the accused-appellants were severely beaten and were caused serious injuries and such a paradoxical situation indicates that the prosecution story of robbery, alleged to have been committed by the appellants, does not inspire any confidence nor is established and hence impugned judgment deserves to be scored out. It is further submitted that (A-1) had expired and his appeal has already been abated and so far as rest of the three surviving appellants are concerned, there is no role assigned to them during the incident and consequently their conviction is indefensible and be set aside, Along-with the said argument, it was contended that, in case the appellants are not acquitted of the charges, they deserve a sympathetic consideration on the quantum of sentence, as all of them were of young ages about 19-21 years and crime was committed more than three decades ago and during intervening period they had not involved themselves into any criminal activity.

Learned A.G.A., supporting impugned judgment and refuting amicus curiae submissions, conversely submitted that the appellants were apprehended at the spot. There was no reason for the prosecution witnesses to feign hokum against them and, therefore, the prosecution had successfully established its charge beyond any shadow of doubt and the appeal of the appellants deserves to be dismissed. It is further submitted that the looted article was recovered from (A-4) and, therefore, his conviction u/s 411, I.P.C. also does not suffer from any illegality or material irregularity and be affirmed. At last, it was contended that the appeals lacks merit and be dismissed.

I have pondered over rival arguments and have perused the trial court record and have vetted prosecution and defence evidences and various exhibits. From the sketched facts it is evident that in the incident a bed-sheet kept in a carry bag was looted by four miscreants. The first and foremost question, therefore, arises as to whether the prosecution has successfully established factum of purchase of bed sheet as claimed by the informant. To establish the said fact prosecution has relied upon evidence of only one witness, i.e., : informant (P.W. 1). No other witness or documentary evidence was led by it to establish factum of purchase of bed sheet. On the looting of it, two fact witnesses, (P.Ws. 1 and 2), were examined by the prosecution. When their depositions are analysed on the touchstone of probability, reliability and acceptability, they suffer from many incongruities and inconsistencies, and do not inspire any confidence.

Turning towards the testimonies of (P.W. 1), but for a bald assertion that the bed-sheet was purchased by him on the date of the incident, which was looted during the incident, there is no other material at all to support such a claim. This witness does not know from where he had purchased the bed-sheet, what was its price, from which shop it was purchased etc. (P.W. 1) does not even remember as to for how much money he had sold his ground-nuts and from its sale proceeds, for how much money, he had purchased the bed sheet. Not much time had lapsed during purchase of looted bed sheet and the incident. Both occurred the same day. How come then that the informant was unable to disclose these very common facts, which would have been remembered by him for a long period. Because of wholly uncertain evidences his allegation of purchasing of bed sheet and looting of the same remains in a realm of disproved allegations.

(P.W. 2) had not accompanied informant (P.W. 1) at the time of purchase of bed-sheet and, therefore, but for ipse dixit of (P.W. 1), there is no credible evidence on record to establish the factum regarding purchase and loot. In this respect, some of the interesting depositions by (P.W. 1) are recapitulated below :

In paragraph 11 (P.W. 1) had deposed--"I had purchased bed-sheet from the market. I had purchased only this bed-sheet and nothing else. This bed-sheet was rectangular in print. It is used as bed cover and as a covering. I do not know for how much amount I had purchased it. I do not remember from which shop I had purchased the said bed-sheet.......I do not inform the Investigating Officer that I had purchased the bed-sheet the same day and it was a printed new and was rectangular because I did not remember it."

In paragraph 21 (P.W. 1) had further testified--"I do not remember whether I had purchased the bed-sheet from one shop or not. I had made haggling on one shop. I had not purchased the bed-sheet from that shop because he had quoted escalated price but I do not remember how much price he had quoted. I do not remember as to how much less price was quoted on the other shop."

Although this witness was reexamined by the prosecution but the prosecutor had not made any efforts to get all the above statements explained by this witness. Because of above statements, the only inescapable conclusion which can be drawn is that no bed-sheet was actually purchased by this witness on the date of the incident nor the same was looted. On such testimonies, it is difficult to conclude that the prosecution allegations are free from doubt.

There is another disquieting feature of the prosecution story. According to the informant''s case, he had purchased the bed-sheet after selling the ground-nuts which he had carried In a bag. No such bag was found from the possession of the appellant. He does not know the whole-seller''s shop where he had sold the ground-nut and for how much price he had sold it. From his statements it is very difficult to come to a positive conclusion that informant had taken ground-nuts to be sold at Anoop Shahar market and that any such sale actually took place. Since informant himself is an unreliable witness on the said score, it is difficult to conclude that the bed-sheet was looted from him during the course of the incident. Another inescapable conclusion which follows, as a natural corollary, is that no looted article was recovered from (A-4). Although (P.W. 2) narrated the incident of loot, but since factum of purchase of bed sheet itself is disproved, subsequent allegation of its loot also stands disproved.

(P.W. 2) also does not seem to be a wholly reliable witness because of the fact that when he arrived near the informant then there was a grappling going on between him and the miscreants. According to his deposition the bed-sheet was snatched away by. (A-1). This is not the case which was deposed by (P.W. 1), according to whom, bed-sheet was snatched away by appellant Ajay Pal (A-4). He also contradicted (P.W. 1) as he testified that while returning to his house he was behind the informant by 150 metres. According to the informant, this distance was only 7 or 8 paces. He had not mentioned the name of the person who was apprehended by him in his scribed F.I.R. He had not even informed the Investigating Officer regarding this in his statement u/s 161, Cr. P.C. He had not even divulged to the Investigating Officer fact that the miscreants had emerged at the scene of the incident from a ditch all of a sudden. It was suggested to this witness that he was not present at the spot and, later on, he was sent for to write down a false F.I.R.. In such a view, it is very difficult to record a positive finding that an incident of robbery occurred as alleged by the prosecution.

Turning towards another important aspect of the case, which has been argued by learned amicus curiae is that nobody from the side of the prosecution sustained a single scratch during the entire episode. No attempt was made by any of the miscreants to wield their respective weapons while, attempting to escape from the spot and meekly they surrendered. Such type of a prosecution story does not appeal to reason being wholly unnatural, improbable and beyond comprehension. A person having eleven live cartridges never ever attempted to fire a single shot while he was being grappled by the informant, nor he fired, when he was being assaulted are such narrations which do not satisfy an inquisitive mind and does not appeal to reason when analysed on the scales of probability. On this score submission of learned amicus curiae has much substance. Looking to the injury reports of the appellants, it is clear that they were severely beaten and had sustained lacerated wounds even on vital parts on their body. No lathi was recovered by the Investigating Officer nor by the persons who had arrested the accused. No such blunt object was produced at the police station nor any seizure memo in that respect was prepared and proved. In such a view, it is difficult to conclude that any of the appellants were carrying any blunt object at the time of the Incident. All of them were in their youth aged about 19 or 21 years except (A-1), who is no more.

Turning towards the impugned judgment, I am unable to subscribe to the opinion taken by the learned trial Judge because of the reason that the learned trial Judge completely ignored and did not consider the prosecution evidences in its right perspective. Those statements which had demolished the prosecution story on the major part of it were completely eschewed from being considered by the learned trial Judge. If a witness is unreliable, because of his depositions, ignoring his statements favouring the accused and recording conviction was not a judicious exercise. I have already pointed out many statements of (P.W. 1) in respect of sale of the groundnuts, purchase of the bed-sheet. These statements proved that the prosecution version, in that respect, remains in realm of uncertainty and on such evidences conviction of the appellants could not have been recorded.

Turning towards conviction u/s 411, I.P.C., since, the entire prosecution version has been disproved and does not appeal to reason, the conviction of the appellant Jai Singh, u/s 411, I.P.C. is also unsustainable. The accused miscreant, who was alleged to have carried firearm and cartridges, is no more and his appeal has already been abated.

Without burdening this judgment any further, and concluding it, I am of the opinion that the prosecution has failed to establish the charge beyond reasonable doubt. The appellants are entitled to acquittal. Accordingly, appeal is allowed.

The convictions of all the three appellants namely Raja Ram (A-2), Kalloo (A-3), and Ajai Pal (A-4) for their respective offences under Sections 392, 397 and 411 are hereby set aside and they are acquitted of those charges and are set at liberty. These appellants are on bail and they need not surrender. Their personal and surety bonds are discharged.

Let a copy of this judgment be certified to the trial court for its intimation.