Mahabir Singh and others vs State of U. P.

Vinod Prasad, J.—Appellants, who are eight in numbers Mahabir Singh son of Kalyan Singh, Sahab Udddin, Chunnni, Banwari Lal, Anwar, Mahablr son of Kishan Lal, Ram Babu and Sattar are aggrieved by their conviction under Sections 399 and 402, I.P.C. recorded by IVth Additional Sessions Judge, Aligarh in Session''s Trial No. 197/1976, State v. Mahabir Singh and others, relating to police station Iglas. district Aligarh and implanted sentences on each of the appellants to 4 years R.1. u/s 399, I.P.C. and 3 years R.I. u/s 402. I.P.C. Three of the appellants Mahabir Singh son of Kalyan Singh, Banwari Lal and Sahab Uddln are further aggrieved by their conviction u/s 25, Arms Act and implanted sentence to 2 years R.I., therefore, by the impugned judgment and order rendered in the aforesaid Sessions trial dated 29.4.1978.Stated in bird eye view, prosecution allegations against the appellants, as is contained in Ext. Ka-8 oral F.I.R. dictated by P.W. 1 S.I. Balveer Singh at police station Iglas. district Aligarh, were that on 29.1.1976. at the police station itself P.W. 1 was tipped about a robbery to be committed the same night. Informer had informed P.W. 1 that at 12 p.m. mid-night on tube-well No. 28 in village Chandfari, eight or nine dacoits will assemble and will commit dacoity of transformer and hydle wires. Appellant Sattar who was stated to be the gang leader was Informed to be having various weapons. Believing the information to be correct. P.W. 1 alongwith S.I. Budh Singh Malik. S.I. B. P. Sharma. A.S.I. R. R. Singh and Constables Latoori Singh, Mukut Singh, Jamin Ali, Amar Singh, Vijan Singh, Kuwar Pal, Lala Ram, Ram Bahadur, Bhagwan Singh, Ram Pal, Prem Pal, Kuwar Pal, Safi Mohammad started from police station, vide rapat No. 35. alongwith witnesses Natthi Singh (armed with S.B.B.L. gun). Chiddha Singh (armed with S.B.B.L. gun), Jagdish Prasad, Kanhiya Lal. Ram Swaroop, Parsa and came to the tube-well No. 28 in village Chandfari at 10.30 p.m. Tube-well was inspected by P.W. 1, who thereafter divided entire police force into three pickets. P.W. 1 became in-charge-of the first picket alongwith S.I. B. P. Sharma, Constables Latoori Singh, Mukut Singh. Jamin All, Kuwar Pal and witnesses Jagdish Prasad and Kanhiya Lal. The second picket consisted of S.I. B. S. Malik. Constable Ram Pal, Prem Das, Amar Singh and Lala Ram and witnesses Natthi Singh, Sri Prasad and the third picket consisted of S.I. B. P. Sharma P.W. 2, Constable Vijan Singh, Kuwar Pal, Ram Bahadur Singh, Bhagwan Singh, Safi Mohammad and witnesses Chiddha Singh and Ram Swaroop. P.W. 1 gave instructions to each of the police party members not to smoke or cough and not to raise any voice. They were further instructed that no firing shall be resorted to unless directed by P.W. 1. It was also instructed to them that on challenge being made, police party will attempt to apprehend the dacoits. After receiving instructions all the three police parties, laid in ambush at 10.45 p.m. and started waiting for the dacoits to arrive at that spot. At 11.45 p.m. 8 or 9 dacoits came to the spot from road and assembled at the water storage tank of the tube-well. They started conversation amongst themselves that since nobody else is to join them therefore, transformer be detached first and thereafter wires will be cut and after making such planning conversations, they started alighting from the water storage tank. P.W. 1 sensed that It was a gang of dacoits, who had assembled there to commit dacoity of transformer and wire that he challenged the dacoits and then police party arrested all of them at the spot, except Sattar who managed to escape in the darkness.

All the arrested seven dacoits were then searched and from the possession of appellant No. 1 Mahablr Singh son of Kalyan Singh a factory made S.B.B.L. gun with six live cartridges, from the possession of appellant No. 2 Sahab Uddin and appellant No. 4 Banwari Lal one countrymade pistol and four live cartridges each were recovered. From the possession of Chunni a blade and from the possession of Ram Babu a knife was recovered. Nothing however, was recovered from appellants Anwar and Mahabir son of Kishan Lal. Arrested accused confessed their guilt and involvement in another crime u/s 379, I.P.C. At the instance of appellant Chunni. stolen electric wire was recovered from the village. P.W. 1 alongwith the police party and apprehended accused returned to the police station where he dictated an oral F.I.R. to Head Moharir Shankar Singh, who then prepared Chik F.I.R. Ext. Ka-9. Regarding the recovery, recovery memos were prepared vide Exts. Ka-1 to Ka-9. The recovered weapons were exhibited as material Exts. 1 to 15.

Investigation of the crime was commenced by S.O. Mahipal Singh P.W. 5, who conducted the spot inspection prepared site plan Exts. Ka-10 to Ka-13. He interrogated incident witnesses and accused and thereafter concluding investigation, charge-sheeted the accused vide Ext. Ka-14 for offences under Sections 399 and 402. I.P.C. Three separate charge-sheets were submitted against accused Banwari, Sahab Uddin and Mahabir son of Kishan Lal u/s 25. Arms Act vide Exts. Ka-15 to Ka-17. Sanction for prosecution for said offences were granted by Sri N. C. Saxena, District Magistrate, Aligarh vide Exts. Ka-18 to 20.

All the accused persons were charged under Sections 399 and 402. I.P.C. and- aforementioned three appellants were also charged u/s 25. Arms Act by the trial Judge, which charges were denied by them, who claimed to be tried.

To establish guilt of the accused, prosecution in all examined five witnesses out of whom S. I. Balveer Singh, informant P.W. 1, S.I. B. P. Sharma P.W. 2, Kanhiya Lal P.W. 3 and Jagdish Prasad P.W. 4 were fact witnesses. Formal witness include Investigating Officer Mahipal Singh P.W. 5.

In their statements u/s 313, Cr. P.C. accused denied incriminating evidences put to them and pleaded their false implication. In their defence, they examined three defence witnesses Panna Lal Bhardwaj D.W. 1, Kanhaiya Lal D.W. 2 and Bhodeo D.W. 3,

IVth Additional Sessions Judge, Aligarh after marshalling of facts came to the conclusion that the charges u/s 399/402. I.P.C. is established against eight appellants and, therefore, convicted them for those offences and sentenced them, as has already been mentioned in the opening paragraph of this judgment. It also found established charge u/s 25. Arms Act to the hilt against three accused and. therefore, convicted and sentenced them u/s 25, Arms Act for two years R.L Challenge in this appeal by eight appellants are to their aforesaid conviction and sentence.

Appeal was filed in this Court in 1978. Pendente lite, this appeal in this Court four of the appellants Chunni, Anwar, Mahabir son of Kishan Lal and Ram Babu expired and vide orders dated 18.4.2002. 8.1.2003 and 5.9.2006 their appeals were abated. This now has left this Court to decide appeals of appellants Mahabir Singh son of Kalyan Singh, Sahab Uddin, Banwari Lal and Sattar.

Appeal was called out for hearing but nobody appeared to argue and hence Sri D. M. Singh, advocate was appointed as amicus curiae to argue the appeal.

Learned amicus curiae castigating the impugned judgment of conviction and sentence, submitted that the entire prosecution allegations are absolutely bogus and false. All the accused persons were named in the F.I.R. and, therefore. Investigating Officer had got animus against them and consequently he implicated them in a false case. Inviting attention of the Court at paragraph 22 of the deposition of P.W. 1 and paragraph 7 of the deposition of P.W. 2 it was submitted that it is wholly bizarre and very unnatural that in the entire incident not even a single shot was fired. When appellants were challenged by the police party, they did not resort to any firing. Allegation of lying in trap and challenge by the police party, all are cooked up and unconvincing story. Amicus curiae further criticised impugned judgment by contending that although the dacoits had assembled at the tube-well to commit theft of the transformer and the wire but no tool for opening the transformer was recovered from their possession and but for a blade, no other apparatus was found from their possession, which could have been useful for un-bolting the transformer, which was fixed at the height of 8 to 10 feet. No rope etc, was found from the possession of the accused persons and it has not been brought on the record as to how and in what manner appellants could have unbolted the transformer. It is further submitted that transformer could not have been carried by the appellants in their hands and therefore, in absence of any vehicle or any other conveyance being arranged by the dacoits to carry the transformer, allegations levelled by the informant P.W. 1 regarding theft of transformer and the wire cannot be accepted as true and convincing narration. It is further submitted that testimonies of the fact witnesses are unreliable. There is no independent witnesses to lend credence to the prosecution story which was spelt out only by police personnels and their conduits and therefore, conviction of the appellants through the impugned Judgment and order cannot be sustained.

Learned A.G.A. on the contrary endeavoured to support the judgment of conviction and sentence and contended that all the appellants were named in the F.I.R. and there was no animus for the police party to falsely implicate them and fabricate a story.

I have considered the arguments raised by both the sides. The criticism levelled by learned amicus curiae against the impugned Judgment has got great force. It is very unnatural and unconvincing that the dacoits who were more than a dozen in number and were so heavily armed having S.B.B.L. gun. countrymade pistol with sufficient quantity of live cartridges, will not resort to firing at all at the police party when challenged. Infact, according to prosecution evidences it is not a case of police encounter at all. Neither the police party fired nor the dacoits fired any shot at the police party. It is very unconvincing and un-understandable that the dacoits will allow the police party to apprehend them without any resistance. Nobody in the incident sustained any physical injury. There is no medical report of any of the dacoits or police personnel on the record. It is also very unnatural and surreal that the dacoits will assemble to commit dacoity of a transformer without having any tools to unbolt it and means to bring it down and transport it.

In such a view, the entire story put up by the S.I. P.W. 1 in Exhibit Ka-8 is wholly unconvincing and cannot be accepted at all. It is also a disquieting feature that transformer was alleged to have been fixed at the height of 8 to 10 feet but the dacoits had no means to climb to such a height and unbolt the transformer. Learned counsel relied upon a decision of this Court in Amar Singh and others v. State of U. P., 2003 (46) ACC 316 : 2003 (1) ACR 256, to harangue his submissions. It has been observed by this Court in the aforesaid decision as under :

It is first to be pointed out that there is no public witness in support of the prosecution case and the explanation is that there being no village nearby Dharamshala where the incident took place, no public witnesses could be available. I do not mean to say that as a matter of rule the prosecution version cannot be accepted unless supported by public witnesses, but what I wish to emphasize is that in the present case, other circumstances taken together with the absence of public witnesses, create reasonable doubt as to the happening as alleged by the prosecution, To say in other words, the absence of public witnesses in support of the prosecution version is not the sole or only reason creating a dent in the prosecution story.

Secondly. it is not digestible that the appellants and their associates would have been talking at such pitch of voice as to be clearly audible by the police party concealing nearby. It does not stand to reason that they would have been fools of such high order as to talk of their top secret in a manner to be clearly and easily heard by someone hiding or concealing nearby. In ordinary course, they would have first got assured of their safety by having a look around the place before talking of such secret.

The third factor is that though two of the appellants, namely. Kunwar Pal and Nawal Singh @ Kaluwa were allegedly found in possession of arms and ammunitions but as per the case of the prosecution there was no exchange of fire. It is alleged that on opening of the two V.L.P. shots by S.I. Tota Ram P.W. 4, the appellants with their associates took to their heels without resorting to any firing. It does not stand to reason. It was obviously a matter of arrest or escape for them. There could hardly be any point in their keeping arms and ammunitions If they did not intend to use the same, even when challenged. The conduct assigned to the appellants does not have attraction of logic.

Lastly, though certain recovery of arms and ammunitions are said to have been made from the two appellants Kunwar Pal Singh and Nawal Singh @ Kaluwa but not a single penny was found with any of the three appellants. It bristles against natural probabilities that they would have been roaming about without a single penny with them in the hope of being successful by committing dacoity at the house of one Mukundi Lal.

Without deliberating further. since I am of the opinion that the entire story set up by the prosecution is nothing but cooked up and fabricated that I disagree with the opinion taken by the trial Judge.In the residue, I allow the appeal of appellants Mahabir Singh son of Kalyan Singh, Sahab Uddin, Banwari Lal and Sattar and acquitted them of all the charges levelled against them. These appellants are on bail, they need not surrender, their personal bonds and surety bonds are discharged.

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