JUDGMENT B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 3-12-1980 passed by Sri S.N. Prasad, the then III Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 142 of 1979 connected with Sessions Trial Nos.143 and 144 of 1979 whereby he convicted the accused-appellants Ghasita and Karam Singh for the offence under Section 399, IPC and sentenced each of them to undergo rigorous imprisonment far a period of four and half years; convicted each of them for the offence under Section 402, IPC and sentenced each of them to undergo rigorous imprisonment for three years and further convicted each of them under Section 25 of the Arms Act and sentenced each of them to undergo rigorous imprisonment for a period of one and half years. The sentences had been made to run concurrently.
2. During the pendency of this appeal, appellant Ghasita had died. Consequently the appeal abates to his extent and this appeal is now left to be decided relating to accused-appellant Karam Singh alone.
3. The prosecution story briefly stated is that on 1st February, 1979 at about 9.15 P.M., Sri S. K. Sharma, the then Station Officer at P. S. Jansath, district Muzaffar Nagar received information by an informer that a gang of dacoits will assemble at the Kotha of the tube-well of Bugala, situate in the jungle of village Dakheri within the circle of P.S. Jansath for the purpose of committing dacoity at the house of Mujara situate in village Dakhari; that on receiving the above information, he took police force with him along with necessary arms and ammunitions and went to village Dakheri along with the informer and sent two constables to the house of Mujara for guarding the same and collected witnesses, namely, Farooq, Bashir, Khurshed and Babu Ram from the village and after going for a short distance from the village, the police personnel and the witnesses took mutual search to ascertain that there is no illicit arms or ammunitions with anyone of them and then two parties were formed. The party No. 1 was formed under the leadership of Sri S.K. Sharma, the Station Officer himself and the party No. 2 was made under the leadership of Sri Om Dutt Tyagi, S.I.; that some constables and some witnesses were kept in each party and that he gave necessary instructions to the members of both the parties and then reached the spot at midnight and posted his own party towards the west of the Kotha of the tube well of Bugala and the second party towards east of the eastern wall of the Kotha and waited for the arrival of the dacoits. After a little time, fourdacoits came from southern side and entered into the Kotha and started smoking Bidi with eachother; that after a short time, they were joined byfour more dacoits coming from the southern sideand again they started conversing with each other.Having heard the conversation of the dacoits, theStation Officer got satisfied that it was a gang ofdacoits making preparation for committingdacoity at the house of Mujara and consequentlychallenged the dacoits to surrender whereuponthey started running towards south; that both theraiding parties surrounded the dacoits and whilesix dacoits escaped the parties caught hold of twodacoits who on being asked had given their namesas Ghasita and Karam Singh. On their personalsearch being taken, one D.B.B.L. gun and 5 livecartridges were recovered from the possessionof Ghasita accusedappellant (now dead) whileone country made pistol and two live cartridgeswere recovered from the possession of KaramSingh accusedappellant for which none of themhad any licence. Necessary recovery memos wereprepared and the recovered properties weresealed. The prosecution story further is that thepolice party returned to the police station alongwith the arrested accusedappellants and lodgedthem at the police station where the Station Officer dictated the F.I.R. to the clerk constable at5.50 A.M. on 221979 on which basis a caseunder Sections 399/402, I.P.C. was reported andseparate cases under Section 25 of the Arms Act were also registered against each of them andthe usual investigation followed which resultedinto the submission of chargesheets and the accusedpersons were tried together for the said offences.
4. At the trial, the prosecution examined Santosh Kumar Sharma, architect of the raid as P.W. 2; Om Dutt Tyagi, leader of second party as P.W. 1 and Babu Ram, a public witness as P.W. 3. He was said to be a member of the second party. The prosecution also examined the Inves tigating Officer Ram Bhool Singh as P.W. 4. Two witnesses, namely, Kali Ram and Mahi Pal Singh were examined by accused Ghasita (now dead) in his defence.
5. Santosh Kumar Sharma (P.W. 2) narrated the entire prosecution story about the receipt of the information from an informer; collecting of force; arrival at the village; despatch of force to the house of victim; the calling of the witnesses; making of police parties; the giving of instructions; the arrival at the tube-well Kotha; posting of both the parties; (sic), waiting the arrival of the culprits in two batches at the Kotha; their conversation; making the search, the arrest of the present accused and the escape of six others; preparation of recovery from each of the accused; preparation of recovery memos and the sealing of the recovered property. Santosh Kumar Sharma (P.W. 2) has also proved the Chik report and the registration of the case. Om Dutt Tyagi (P.W. 1) has also narrated the same story. Babu Ram (P.W. 3) claimed that at 10.30 P.M., the police reached his village and had called him from his house and informed about the information received and took him and others. He also testified about the remaining part of the prosecution story about the arrest, recovery and, preparation of memo etc."
6. The learned Additional Sessions Judge has believed the prosecution story and discarded the defence evidence led from the side of Ghasita accused-appellant (now dead).
7. The learned Amicus has claimed that the prosecution story was highly improbable and the evidence led in support thereof was unreliable and contradictory. The prosecution case bristles with improbabilities and suspicious features.
8. As many as eight dacoits are said to have assembled in the Kotha in question for committing dacoity in the village. Two of them are said to have been arrested on the spot and according to the prosecution story, one D.B.B.L. licenced gun and as many as five live cartridges are said to have been recovered from one of them and a country made pistol and two live cartridges aresaid to have been recovered from the possessionof other but surprisingly enough in the wholetransaction neither the police fired a single shotnor any of the culprits who are alleged to haveescaped nor any of the present accusedappellant, who were said to be arrested on the spot,are said to have fired a single shot. Further more,in the entire transaction no member of the policeforce and no public witness is said to have received even slightest injury. In the ordinarycourse, one would expect the use of firearms fromboth the sides and otherwise also in the scufflein such an occurrence, some one or the other inthe raiding parties would have received injurieson their person. Babu Ram (P.W. 3), a publicwitness of the occurrence, stated "PAKARDHAKAR MEN GAWAHAN WA POLICEWALON KE CHOTE NAHI LAGI THI". He,no doubt, claimed that the accused persons received some injuries but the prosecution has notfiled any record to show that the accusedappellants did receive any injury in the transactionsof raid and arrest. It may be mentioned here thatnone of the two police subinspectors testifiedabout the receiving of injury by the accusedappellants in the alleged transaction. It is true thataccording to the prosecution, the transaction involved recovery of a licenced weapon also andit is also true that licensed weapons are usuallynot planted. However, in the state of evidence inthis case, this recovery also appears to be doubtful. The licenced weapon, as per the prosecutioncase, belonged to Mohar Singh of village Tissa.The prosecution did not lead any evidence toshow that Mohar Singh had lodged any F.I.R.about the theft or looting of his licenced gun priorto the present occurrence. Such an F.I.R. musthave been lodged by Mohar Singh if his weaponhad been looted or stolen from him and if notthen in the ordinary course one would expect thepolice to register a case against Mohar Singh forhaving lent his licenced gun to the dacoits forillicit use. It has been elicited by the defence fromthe Investigating Officer in his crossexamination that he did not challan Mohar Singh to whomthis gun belonged. Mahipal Singh was examinedas D.W. 2 in defence. He was brother of MoharSingh aforesaid. He testified that in the night oflst/2nd February, 1979 at about midnight, theStation Officer Santosh Kumar Sharma (P.W. 2) and others came to his house and asked aboutMohar Singh and called for the licenced gun ofMohar Singh and took away the licenced gun,its licence, its belt and directed that Mohar Singhbe asked to report at the police station when hecame. He further testified that he went on thenext day to the police station for taking back thegun but he was asked to run away whereupon hecame to Muzaffar Nagar and narrated the storyto the Superintendent of Police, Muzaffarnagarand the Superintendent of police had called uponthe Circle Officer to make enquiry into the matter and then he gave an application to the Collector, Muzaffarnagar and also sent a registeredletter to the Superintendent of Police. He hadfiled the copy of the application and also the registration receipt and A.D. about it. The suggestion of the prosecution to this witness was thatthis application was given fictitiously after thegun had been recovered from Ghasita. The witness had refuted the suggestion. The importantpoint is that despite this application, the prosecution did not claim that a case has been registered against Mohar Singh for having lent hisweapon to be put to illicit use by others. As amatter of fact, the record contained an application of Mohar Singh for the release of his licencedgun in his favour which had been allowed. Under the circumstances, the explanation comingfrom the side of Ghasita accusedappellant (nowdead) was plausible. He had claimed that he hadbeen arrested from his house at 3.00 P.M. by thepolice and falsely implicated in the case. He hadalso examined a witness Kali Ram (D.W. 1) inthis regard. The present accusedappellant KaramSingh has claimed that he had been arrested bythe police at 8.00 A.M. and has been falsely implicated in this case. He also claimed that he hasbeen implicated in this case due to village partihandi.
9. It may be pointed out that in the F.I.R. dictated by the Station Officer Santosh Kumar Sharma (P.W. 2) at the police station after the return from the spot, it has been said that after the arrest, he had asked from Ghasita accused-appellant (now dead) about Raisa daughter of Saddiq whereupon the accused-appellant had said that he has connection with her; that she had come to him of her own and he had seated her in a sugar-cane field; that he then took the police to a sugar-cane field where the girl was found; that there she was arrested and her father Saddiq was called to the police station. It also contained a mention about prior lodging the F.I.R. under Section 498, I.P.C. at the police station in respect Of her by her father Saddiq. The prosecution has not placed on record the copy of any such F.I.R. by Saddiq nor had it examined Smt. Raisa at the trial to corroborate the prosecution story about the presence of Ghasita accused-appellant at the tube-well and her recovery at this pointing out. Om Dutt Tyagi (P.W. 1) has testified about the recovery of a woman at the pointing out of Ghasita-accused-appellant (now dead) and her giving in the Supurdagi of her father but his statement is that she was given in the Supurdagi of her father while returning to the police station is against the claim in the F.I.R. that her father was called to the police station and then she was restored to him. Santosh Kumar Sharma (P.W; 2) the architect of the raid, claimed about the recovery of the girl at the pointing out of Ghasita accused-appellant (now dead) and also to her giving in the custody of her father before returning to the police station. Then he claimed that the witnesses had remained with him till the time of recovery of this 'girl'. As against this, Babu Ram (P.W. 3) did not testify to any such recovery of any such girl while he was with the police party. In his cross-examination, he stated that two Sub-Inspectors and four constables have taken both the accused after their arrest to the police station and that after the arrest of the accused persons, they were not taken to any other place in his presence. Under these circumstances; the prosecution story can hardly be taken as corroborated by the alleged recovery of the licenced weapon or the alleged recovery of a girl/woman in the transaction.
10. In view of the above discussion, the prosecution case about the occurrence and the arrest and recoveries therein appears to be highly doubtful and the evidence, which was led in its support was highly unreliable. Consequently, the conviction of appellant Karam Singh for the offence under Sections 399/402, I.P.C. or even under Section 25 of the Arms Act cannot be sustained.
11. In the result, the appeal succeeds and is allowed. The conviction and sentence of the accused-appellant Karam Singh is set aside and he is acquitted of the offences Under-Section. 399/402, IPC 25 Act. He is in jail custody. Let he be released forthwith unless required in connection with some other case or crime.
12. Let a copy of this judgment along with the entire record of the trial Court be sent to the Sessions Judge, Muzaffarnagar by the office of the High Court at once for immediate compliance and the compliance report shall be submitted to this Court in a week.
13. A fee of Rs. 1,100/- (Rupees one thousand one hundred only) shall be paid to the Amicus Sri Yogesh Kumar Saxena by the office of the High Court.
14. The record of this appeal shall be listed before this Bench on 7-5-1999 for orders along-with the compliance report from the Sessions Judge concerned.