Laddan vs State of U.P.

Mohammad Tahir, J.—This criminal appeal has been filed against the judgment and order dated 7.6.1986 passed by IVth Addl. Sessions Judge, Etawah in S.T. No. 132 of 1985, State v. Laddan @ Muzaffar Ali, under Section 307 , I.P.C. and Section 25 , Arms Act whereby the trial court has convicted the appellant Laddan and sentenced him to undergo one year R.I. under Section 25 , Arms Act and acquitted him of the charge under Section 307 , I.P.C. Eschewing unnecessary details the prosecution version, in brief, is that in the morning of 6.12.1984 accused-appellant Laddan @ Muzaffar Ali was extorting money on pistol point from the shop-keepers having shops at Rajaganj Fatak, Etawah. In this connection, some persons informed the police of Chowki Astal. On this information S.I. Sudhanva Singh Tomar (P.W. 1) alongwith other police personnel including constable Sayavir (P.W. 2) arrived at Ranga Lal Crossing. They tried to procure public witnesses but because of the terror of the accused-appellant nobody dared to become the public witness and to accompany the police party to the spot. The police party arrived at Rajaganj Fatak and saw the accused-appellant having a country made pistol in his hands. He was challenged by S.I. S.S. Tomar. On his challenge he opened fire upon the police party with the intention to kill them, but the police party narrowly escaped from the fire by laying on the ground. After opening the fire the accused-appellant ran away towards Shahganj. He was chased and ultimately arrested by the police inside the aforesaid Fatak at about 11.00 a.m. He was subjected to personal search and from his search, a country made pistol having a fired cartridge in its barrel and four live cartridges were recovered from the possession of the accused-appellant. The pistol and cartridges were sealed on the spot and recovery memo was accordingly prepared which is Ext. Ka-1.

On the basis of the aforesaid recovery memo two cases were registered in P.S. Kotwali, Etawah one at Case Crime No. 671/84 under Section 307 , I.P.C. and another one at Case Crime No. 672/84 under Section 25 , Arms Act. In that regard, chick F.I.R. (Ext. Ka. 6) was prepared by Head Moharrir Shiv Shanker Shukla and an entry in the G.D. (Ext. Ka. 7) was made by him in that regard. The investigation was taken up by S.I. Ram Narain Lal (P.W. 3), who after completing the investigation filed charge-sheet (Exts. Ka-3 and Ka-4) after obtaining sanction (Ext. Ka-5) to prosecute the accused-appellant under Section 25 of Arms Act.

The prosecution in order to prove its case examined S.I. S.S. Tomar (P.W. 1), constable Satyavir (P.W. 2) and Investigating Officer Ram Narain Lal (P.W. 3).

The accused-appellant in his statement recorded under Section 313 , Cr.P.C. denied the occurrence and further submitted that he was raising the contribution (Chanda) in connection with barawafat by way of issuing printed receipts to the donors. He had further stated that he was the editor of the newspapers and used to publish news against the police, so he had been falsely implicated in this case. In his defence, as many as six copies of different newspapers have been filed by him. No defence witness was produced by him in his defence.

The learned lower court after hearing the counsel for the State as well as counsel for the accused-appellant and perusing the evidence on record, acquitted the accused-appellant of the charge under Section 307 , I.P.C. but found him guilty of the charge under Section 25 Arms Act and sentenced him as hereinbefore mentioned in the beginning of the judgment.

Aggrieved by the judgment and order of conviction and sentence under Section 25 , Arms Act the accused-appellant filed this appeal.

I have heard learned counsel for the accused-appellant, learned A.G.A. for the State and perused the evidence on record.

In this case, two witnesses of fact namely Sri Sudhanva Singh Tomar and Satyavir were examined by the prosecution as P.W. 1 and P.W. 2. Both these witnesses have given their statement in examination-in-chief according to the version as mentioned in the F.I.R. The third witness is Investigating Officer Ram Narain Lal (P.W. 3) who proved the investigation conducted by him and also proved the site plan (Ext. Ka-2), chick F.I.R. (Ext. Ka. 6), extract of G.D. (Ext. Ka-7), charge-sheet (Exts. Ka-3 and Ka-4) and sanction (Ext. Ka-5).

Learned counsel for the accused-appellant has submitted that in this case there is no public witness to support the prosecution case, so on the basis of mere testimony of police personnel the accused-appellant ought not to have been convicted by the trial court. On the other hand, learned A.G.A. has submitted that the accused-appellant can be convicted even on the basis of bare testimony of police personnel.

There is no law that an accused cannot be convicted on the basis of the testimony of the police witnesses but the condition is this that they should be totally reliable witnesses. In the present case the police personnel who have been examined by the prosecution to prove its case are not the totally reliable witnesses. The trial court also did not believe their testimony as regards the charge under Section 307 , I.P.C. and acquitted the accused-appellant of that charge. The explanation of the prosecution that no person of the public was ready to become the witness and to accompany the police party to the spot due to the terror of the accused-appellant does not appear to be satisfactory because the public witnesses namely Munna and Ghan Shyam, who were said to have refused to become the witnesses, were interrogated by the Investigating Officer (P.W. 3). The Investigating Officer had categorically stated in his statement that these two witnesses did not tell him about the threat by the accused-appellant to the shopkeepers. He had further stated that he did not meet even a single person of the public who had told him about the fact of threatening by the accused-appellant to the shop-keepers and nobody had also told him that due to the terror of the accused-appellant the shop-keepers had closed their shops. Thus, the explanation for non-joining of any public witness due to the terror of the accused-appellant is totally baseless. In this reference, it is also pertinent to mention here that the occurrence in question took place in the broad day light and the police party is said to have reached the spot through Gudri Bazar of Etawah. The arresting officer Sri S.S. Tomar had clearly stated in his statement that he did not ask any shop-keeper of the Bazar to become the public witness. This very fact also indicates that the explanation for non-joining of public witness by the police party is not satisfactory.

The trial court has also held that the statement of the police witnesses in respect of charge under Section 307 , I.P.C. is somewhat less reliable and these witnesses have been disbelieved in respect of charge under Section 307 , I.P.C. The fact of fire upon the police personnel and the fact of recovery of tamancha and cartridges are inseparably connected with each other. So, the police witnesses who have been examined by the prosecution do not lie in the category of totally reliable witnesses. The Hon''ble Supreme Court in its decision rendered in Vadivelu Thevar Vs. The State of Madras, , has held that in case of a witness who lies in the category of partly reliable witness, his testimony cannot be acted upon without corroboration from some independent source. In the case at hand, both the witnesses are the police witnesses. P.W. 1 S.S. Tomar is the Arresting Officer and P.W. 2 constable Satyavir is his subordinate. So, their testimony has to be construed as the testimony of a single witness and, without corroboration from the testimony of any independent witness it is not safe to convict the appellant. In these circumstances, the trial court has erred in placing the reliance upon the testimony of the police witnesses without corroboration from some independent source.

The trial court has also erred in holding that the prosecution version is supported by the admission of the accused-appellant as regards the collection of contribution on the spot. This very admission of the accused-appellant is also of no help to the prosecution because the accused-appellant had categorically denied the prosecution version and he had clearly stated that he was raising the contribution on the occasion of barawafat on the basis of printed receipts and he has been falsely implicated in this case by the police due to previous animosity and ill-will with the police.

Now it is to be seen as to whether the defence version of the accused-appellant is probable or not. The accused-appellant was admittedly the Cashier of Bharat Yuvak Sewak Samaj, as has been admitted by Arresting Officer S.I. S.S. Tomar (P.W. 1) in his cross-examination. From the side of the defence, copies of some newspapers were also filed in the trial court and from those newspapers it is evident that the accused-appellant was the editor of the newspapers and it also appears from those newspapers that he used to publish the news against the police personnel. P.W. 1 S.S. Tomar did not deny that the accused-appellant had filed criminal complaint against S.I. T.R. Nirbhe which was got dismissed on the assurance of the police and that it has also come in the statement of P.W. 1 that S.I. T.R. Nirbhe had remained posted with him. Thus, the possibility of false implication of the accused-appellant due to police departmental fraternity also cannot be ruled out.

For the foregoing reasons and discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt as regards the charge under Section 25 Arms Act also. Thus, the impugned judgment and order as regards the conviction of the accused-appellant is not warranted by law and facts on record and the trial court has erred in convicting the accused-appellant of the charge under Section 25 , Arms Act.

In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial court as regards the conviction of the accused-appellant is hereby set aside. The accused-appellant is not found guilty of the charge under Section 25 , Arms Act and the accused-appellant is acquitted of that charge. He need not surrender in the court. Bail bonds stand discharged. Office is directed to return the lower court record to the lower court concerned alongwith a copy of this judgment for information and for making necessary entries in the relevant record.