Ram Autar vs State of U.P.

C.A. Rahim, J.—This appeal has been preferred against the judgment and order of the Sessions Judge, Bareilly, dated 1.8.1983 in Criminal Appeal No. 163 of 1983, dismissing the appeal preferred against the conviction and sentence passed by the Addl. Chief Judicial Magistrate, Bareilly, on 10.5.1983 in Criminal Case No. 738 of 1983, under Sections 379/411, I.P.C. and 25 (1) Arms Act and sentenced to suffer R.I. for two years and six months respectively.

The prosecution case is that on 2.12.1982 at 8.35 hours while the complainant was sitting in a bus, one Hart Singh picked his pocket and took away one fifty Rupees Note. He was caught but the said currency Note was passed over to one Ram Autar, his companion, who when attempted to escape, both of them were arrested by constable standing outside the bus. The said currency Note was recovered from the possession of Ram Autar. On further search, one dagger was also recovered. Both the accused persons were taken to the police station where a case was registered.

During the trial, the prosecution examined the complainant and two constables P.W. 2 Dharam Pal Singh and P.W. 3 Surendra Pal Singh to prove the incident. P.W. 1, the complainant has stated that the said currency Note was picked up by Hari Singh and it was recovered from the possession of Hari Singh. He was declared hostile as he did not support the prosecution case that the said currency Note was recovered from Ram Autar. He has stated that nothing was recovered from the possession of Ram Autar at that place.P.Ws. 2 and 3 have stated that when both the accused persons tried to escape, they were arrested. From the palm of Ram Autar, one fifty Rupees Note was recovered. On search, one dagger was also recovered for which he could not produce any licence.

The learned Magistrate relying on the evidence of P.W. 2 and P.W. 3 convicted the Appellant Ram Autar u/s 379/411, I.P.C. and 25 (1) Arms Act. An Appeal was preferred to the court of Sessions Judge but it was dismissed.

Sri R.C. Kandpal, appearing for the Appellant, has submitted that even if it is considered that one currency Note was recovered from the possession of the Appellant, it cannot be said that the said note was stolen from the pocket of the complainant by Hari Singh. He has also submitted that P.W. 1 has since denied that it was not recovered from Ram Autar, the owner of the said currency Note having not corroborated his own case, the Appellant is entitled to the benefit of doubt.

It appears that P.W. 1 is only the link evidence by which it could have been proved that the currency Note which was stolen by Hari Singh, passed on to Ram Autar and the very currency Note was recovered from Ram Autar. When the said link evidence is missing, it cannot be said that the Appellant has committed any offence u/s 379/411, I.P.C.

With regard to the charge u/s 25 Arms Act, the evidence of P.Ws. 2 and 3 is enough to establish that one dagger was recovered, on search from the possession of the Appellant. A recovery memo was prepared and without any lapse of time, a first information report was lodged by P.W. 1 wherein it was stated that the said dagger was found from the possession of the Appellant. It is an admitted fact that he could not produce any licence. So he is liable to be convicted u/s 25(4) of the Arms Act.

It is true that P.W. 1 has not corroborated in his evidence that anything was recovered from the possession of the Appellant but with regard to the recovery of the dagger, no link evidence is necessary as keeping a dagger without a licence itself is an offence. There is no material to disbelieve P.Ws. 2 and 3 who caught the Appellant while he was escaping from the bus. It may be that the said part of the prosecution case has not been corroborated by P.W. 1. In that circumstance if the evidence of the two police constables stood well on text, conviction can be based without having corroboration by any public witness. So I find that the prosecution has been able to prove the recovery of the dagger from the possession of the Appellant and the offence u/s 25(4) of the Arms Act has been proved against him.

The Appeal is, therefore, allowed in part. The conviction and sentence u/s 379/411, I.P.C. are hereby set aside. The conviction u/s 25(1) of the Arms Act is altered to the conviction u/s 25(4) of the Arms Act. The sentence imposed by the trial Magistrate is reduced to R. I. for one month. The bail bond of the Appellant is cancelled. Let him surrender within one month from this day to serve out the remaining period of the sentence. He is also entitled to set of as per provision of the Code of Criminal Procedure.