Ram Baran and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Challenge in this appeal is the judgment and order dated 31.8.2004 passed by the learned Additional Sessions Judge/Fast Track Court No. 4, District Lakhimpur Kheri in Sessions Trial No. 151 of 2002, 152 of 2002, 153 of 2002 and 154 of 2002, which were disposed of by a common judgment and by the said judgment, the appellants were convicted for the offence under section 25 of the Arms Act. Appellant Ram Baran was sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 2,000/- with default stipulation of two months additional rigorous imprisonment. The other two appellants, namely, Ram Naresh and Bharat were convicted for the said offence and were sentenced to undergo rigorous imprisonment for a period of two years each and also with fine of Rs. 1,000/- with default stipulation of one month additional rigorous imprisonment. However, the appellants were acquitted of the charges levelled under sections 307 & 216 I.P.C. and section 7 of the Criminal Law Amendment Act. There was one more accused Pohpi, who was also tried along with the appellants and has been acquitted of all the charges levelled against him. He was not an accused under section 25 of the Arms Act. The brief facts necessary for the disposal of the instant appeal may be summarized as under:--

On 21.11.2000 S.O. Pasgawan, District Lakhimpur Kheri, on the basis of a secret information received through an informer constituted a police party under his leadership, in order to arrest the wanted criminals and went to village Ganeshpur. The jeep was parked on the outskirts of the village. The police procured Ram Lakhan son of Mohan, Asharam son of Dammar, Ram Kishun son of Chhanga and Bal Govind son of Raghuvar Yadav as independent witness and disclosed their purpose. The independent persons were informed that in the house of Pohpi son of Su-mair, four known criminal, having illegal weapons, are staying and they are planning to commit an offence. Thereafter the police party along with informer and independent witnesses, came near the Baggar of said Pohpi. The informer went back. Different teams of police party were formed and the Baggar was raided. The police party peeped into the house. They found that four persons sitting on cots, were taking lunch. At one cot, one gun and one country made pistol and on the other cot one gun and country made pistol and a cartridge belt were kept. One old man was serving food to them. Seeing the illegal weapons, the police party was satisfied that these were the wanted criminals. Thereafter the police party pushed open the door and challenged the culprits. The culprits started firing. Thereafter the police party also started firing in their defence and in such exchange of firing, one person from the side of miscreants died. The police party arrested the three other culprits in the Baggar and the identity of the dead person was disclosed as Ram Bhajan son of Shankar. From the possession of appellant Ram Baran, one SBBL country made 12 bore gun was recovered and country made pistols were recovered from the other two appellants. Pohpi was also arrested. The recovery memo was prepared. On the basis of the memo of arrest and recovery, the case was registered and after investigation, the charge-sheet under sections 307 and 216 I.P.C. and section 7 of the Criminal Law Amendment Act was filed against all the appellants and charge-sheets under section 25 of the Arms Act was filed separately against all the appellants. Since the entire incident took place in the same transaction, therefore, all the cases were tried together and were disposed of by a common judgment.

The case of the defence was that they have been falsely implicated. The dead body of one Ram Bhajan was found lying in the grove of the village and the S.O. in order to take credit of this death, has prepared this false case and fabricated this case showing that the incident has taken place in the Baggar of Pohpi. However, Pohpi was acquitted of the charges levelled against him.

In order to prove its case the prosecution has examined, PW-1 S.I. Shri Rang Upadhyay, PW-2 S.I. C.P. Gautam and PW-3 S.I. Devendra Pande. All these witnesses were the members of arresting party. They have been examined as witnesses of fact. PW-4 Indra Jeet Chauhan is the initial Investigating Officer of this Case. PW-5 S.O. K.P. Dixit was the subsequent Investigating Officer of this case. PW-6 Head Mohariri Shiv Shankar Singh has prepared chik report and G.D. of this case. PW-7 R.S. Gautam, who has filed charge-sheet against all the accused persons under sections 307 and 216 I.P.C. and 7 Criminal Amendment Act.

In defence as DW-1 Asha Ram was examined, who was one of the public witness in the recovery memo. This witness has supported the defence theory that the dead body was found in the grove of the village.

After appreciating the evidence on record, the Trial Court has acquitted all the accused persons for the offences under sections 307 and 216 I.P.C. and section 7 of the Criminal Law Amendment Act. However, the present appellants were convicted for the offence under section 25 of the Arms Act as above, hence, the instant criminal appeal.

Learned Counsel for the appellants has submitted that the entire incident is alleged to have taken place in the Baggar of Pohpi. The said incident was absolutely disbelieved by the Court and the accused persons were acquitted of the charges levelled against them but the Trial Court has committed error in relying upon the same on the point of recovery of the country made pistol. Learned Counsel for the appellants has placed reliance on the pronouncement of Hon''ble the Apex Court in the case of Sumersingh Umedsingh Rajput v. State of Gujarat 2008 (60) ACC 309 (SC).

Per contra, learned A.G.A. has submitted that in this case the Trial Court by a reasoned judgment has convicted the appellants and the impugned judgment needs no interference.

In this case admittedly, four independent witnesses were procured by the police party before raiding the Bag-gar of Pohpi but not even a single independent witness could be examined in support of its case by the prosecution. All the police personnel were examined as witnesses or facts and the entire incident, which is alleged to have taken place in the house of Pohpi has been disbelieved by the Trial Court. The Trial Court in its judgment has nowhere mentioned as to how the evidence regarding the encounter and the recovery of illegal weapons can be distinguished but the Trial Court has simply observed that the prosecution has failed to prove its case for the offence under sections 307 and 216 I.P.C. and section 7 of the Criminal Law Amendment Act and the accused persons were held guilty for the offence under section 25 of the Arms Act. The Trial Court has considered the evidence of the defence witness and has given due importance to it. DW-1 Asha Ram was the member of the raid party. He has stated that the person who is alleged to have died in the encounter was found lying in an injured condition in the grove of the village and simply in order to take credit to kill a known criminal, this false case has been concocted. No other public witness could be produced by prosecution in its support which gives rise to an adverse inference against prosecution.

It is always the burden of the prosecution to prove its case to the hilt and in every criminal trial, place of occurrence assumes great importance.

In the evidence, the Investigating Officer has admitted that no bloodstains were found in the Baggar of Pohpi nor any impression of firing were found on the walls of the Baggar of Pohpi nor any pallets were recovered from the alleged place of occurrence. All these factors prevailed in the mind of the Trial Court in acquitting the accused persons but learned Trial Court really failed to appreciate that when the charge under sections 307 and 216, I.P.C. and section 7 of the Criminal Law Amendment Act stood failed against the accused appellants and the incident in the house of Pohpi was disbelieved by the Trial Court then virtually there was no occasion for the Trial Court to convict the appellants for the offence under section 25 of the Arms Act. But the Trial Court in a very casual manner has observed in the impugned judgment that accused persons are guilty for the charge under the Arms Act without assigning any reason as to how the same evidence was distinguishable for the purpose of recovery of weapons. Such an approach of the Trial Court has rendered its judgment unsustainable under law.

In the case of Sumersingh Umedsingh Rajput (supra), Hon''ble the Apex Court in paragraph No. 15 has observed as under:--

"15. If the prosecution case of attempt to murder of PW-8 by gunshot injury fails, resultantly, the prosecution under section 25 of the Arms Act would also fail."

In view of the discussion made above, this Court is of the considered view that the conviction of the appellants for the offence under section 25 of the Arms Act become unsustainable under law. The Trial Court has committed error in convicting the appellants for the said offence. Accordingly this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 31.8.2004 passed by the learned Additional Sessions Judge/Fast Track Court No. 4, District Lakhdmpur Kheri in Sessions Trial No. 151 of 2002, 152 of 2002, 153 of 2002 and 154 of 2002 is hereby set aside to the extent whereby the present appellants were convicted under section 25 of the Arms Act. The appellants are hereby acquitted of the charges levelled against them. They be set at liberty. The appellants are on bail. Their bail is cancelled and sureties discharged. Amount of fine, if any deposited, shall be refunded to the appellants. Office is hereby directed to communicate this order to the Court concerned and to send back the Lower Court record.