Ram Singh vs State of U.P.

Accused Ram Singh, son of Tota Ram, has filed this appeal against the judgment and order dated 18.12.1980 passed by Sri S. K. Agnihotri, Additional Sessions Judge, Aligarh whereby he convicted the accused u/s 399/402, I.P.C. and sentenced to undergo rigorous imprisonment for a period of four years under each count. He was further sentenced to suffer rigorous imprisonment for a period of one year u/s 25 of the Arms Act. All the three sentences were directed to run concurrently.

In brief, the prosecution came to the Court with the allegations that P.W. 4 Udaivir Singh, the then S.O. of police station Atrauli, district Aligarh, received information that a dacoity would be committed in the night at the house of Thakur Ajab Singh in village Bhojpur. The S.O. believing the information to be correct decided to take appropriate action. At about mid-night in the night intervening 12/13th January, 1978, a gang of dacoits assembled at the tube-well of Bhup Singh. The S.O. collected police force and public witnesses and formed two parties who took position near the Tube-well at about 12.15 in the night. Two constables were sent to the house of Thakur Ajab Singh to protect his life and property. After a few minutes, 7-8 miscreants were seen in the south-east corner of the field of Bhup Singh. The police party overheard the talks going on amongst members of the gang and was satisfied that a gang of dacoits had assembled there to commit dacoity. The police party fired V.L.P. and challenged the miscreants who started running away. They were chased and three miscreants, including the Appellant, were apprehended and others succeeded in running away. On personal search, a country made pistol and two live cartridges were recovered from the possession of the Appellant. Separate recovery memos were prepared by the S.I. police Vijaipal Singh Rana. Besides weapons, Biris, Match-box and Torches were also recovered from the spot.

P.W. 1 Head Constable Amar Singh prepared chik report on the dictation of the S.O. Udaivir Singh and investigation of the case was entrusted to S.I. Babu Ram Yadav.

The I.O. during the investigation reached the place of occurrence and prepared a site-plan on 13.1.1978. After completing investigation, he submitted charge-sheet against Ram Singh and others.

After committal of the case, accused Ram Singh was charged u/s 399/402, I.P.C. He was further charged u/s 25 of the Arms Act. He pleaded not guilty to the charges.

During the trial, the prosecution examined five witnesses in all. They were P.W. 1 Amar Singh, who prepared Chik report and made entry in the G.D., P.W. 2 S.I. Vijaipal Singh Rana, who was leader of the second party, P.W. 3 S.I. Babu Ram Yadav, who was I.O. of the case, P.W. 4 Udaivir Singh, who was posted as S.O. of police station Atrauli and was leader of the first party, P.W. 5 Bahal Singh, who was a public witness and was included in first party.

Accused Ram Singh totally denied his complicity in the alleged offence and pleaded his false implication. According to him, he along with his brother Ram Charan was apprehended by the police from his house at about 6.00 a.m. and Ram Charan was falsely implicated in a case u/s 60 of the Excise Act. He adduced no evidence in his defence.

After scrutinising the entire material on record led by the prosecution and hearing learned Counsel for both the sides, learned Judge concluded that Ram Singh was also one of the dacoits who had assembled for committing dacoity with preparation. He was, therefore, convicted and sentenced, as mentioned above. Hence this appeal.

I have heard learned Counsel for the Appellant at length, learned A.G.A. and perused the record carefully.

Learned Counsel for the Appellant has assailed the judgment mainly on the grounds that there are material contradictions in the evidence on record led by the prosecution regarding the place where the dacoits had allegedly assembled for the purposes of committing dacoity and the talks amongst the members of the gang could not be overheard by the police party as claimed by the prosecution. Besides, it does not stand to reason that a gang of dacoits chose such a place (Tube-well of Bhup Singh) where electric bulb was burning. The prosecution nowhere stated that electric bulb was burning or not on the fateful night. It was also contended that the Appellant and his associates were armed with fire arms and cartridges. They, however, did not resort to firing in their defence and were apprehended by the police. The police party too did not fire on the dacoits for the reasons best known to it.

Reliance was placed on two decisions:

(1) Chaturi Yadav and Ors. v. State of Bihar 1980 CAR 237 (SC) ;

(2) Tirkha and Ors. v. State 1965 AWR 844.

I have considered the submissions made on behalf of the Appellant and find that the contention of the Appellant''s learned Counsel is well-founded and must prevail. As mentioned above, the prosecution examined five witnesses in all, including two formal witnesses, Head Constable Amar Singh and S.I. Babu Ram Yadav, I.O. of the case. According to S.I. Vijaipal Singh Rana, after arrival of the police party, the dacoits were heard talking to each other towards south of the tube-well and informer pointed out towards them and left the place. Police parties heard the miscreants saying that they were getting late and they should leave the place for committing dacoity at the house of Thakur Ajab Singh. This statement of Vijaipal Singh Rana was corroborated by S.O. Udaivir Singh also. I find that P.W. 5 Bahal Singh, a public witness, demolished the entire prosecution case by saying that he saw 6-7 miscreants sitting under a Babul tree and miscreants were apprehended at a distance of 10-15 steps towards south-west from the Babul tree.

The I.O. prepared the site-plan and gave out that S.I. Vijaipal Singh Rana had shown the place where the miscreants had allegedly assembled and this place is at a considerable distance from Babul tree. Similarly Bahal Singh gave a contradictory statement regarding the place where the dacoits were apprehended by the police party.

I further find force in the contention of the Appellant''s learned Counsel that the Appellant was having a country made pistol and two live cartridges and his associates were also armed. They, however, did not use their arms in self-defence and were easily apprehended. This theory put up by the prosecution is not reliable and cannot be accepted. I further find that there is no reliable evidence on record that the Appellant and others had assembled there in the night armed with fire arms and live cartridges for the purposes of committing dacoity or for making preparation to accomplish that object.

In view of the aforesaid discussion, evidence on record, circumstances of the case and the decisions relied upon by the Appellant, I conclude that the prosecution could not establish its case against the Appellant beyond all shadow of doubt. The prosecution version seems to be highly doubtful. Consequently, the appeal is liable to be allowed.

In the result, the appeal succeeds. The conviction and sentence passed against the Appellant are hereby set aside. He is acquitted. He is on bail and need not surrender. His bail bonds are cancelled and sureties are discharged.