JUDGMENT Mukteshwar Prasad, J.
1. Accused Ram Kishan, Shrikant, Mohan, Genda Lal and Ram Babu have preferred this, appeal against the judgment and order-dated 13.11.1981 passed by Sri B.B.S. Chaudhary. the then Additional Sessions Judge, Kanpur in ST. No. 485 of 1980 whereby he convicted all the aforesaid accused and one Ram Adhar also under Section 399/402 I.P.C. and each of them was sentenced to suffer rigorous imprisonment for a period of four years and three years respectively thereunder. Accused Mohan, Shrikant and Genda Lal were further found guilty under Section 25 of the Arms Act and each of them was sentenced to suffer rigorous imprisonment, for a term of two years. All the sentences of each accused were directed to run concurrently.
2. Appellant Genda Lal, in Criminal Appeal No. 2815 of 1981, expired during pendency of the appeal and as such, the appeal filed by him abated vide order of the Court dated 25.5.2004.
3. Since all the four appeals have arisen out of a common judgment dated 13.11.1981 passed by the Additional Sessions Judge, they were heard together and are being disposed of by a common judgment.
4. In brief, the prosecution story was that P.W. 1 S.I. Kaptan Singh was posted as Station Officer at Police Station Gajner, Kanpur in the month of August, 1980. On 27.8.80, SO. Kaptan Singh, P.W. 2 S.I. Ramayan Singh, S.I. Raja Ram Singh and seven constables all fully armed with rifles, revolvers, guns and lathies were patrolling in villages Kodhawa and Kripa Rampur Purwa. They were proceeding towards village Nahauli through canal road At about 11-30 P.M., when the police party arrived near the culvert built on the canal near village Kurari, they heard some sound and felt presence of some persons there. The S.O. suspected that some miscreants had assembled there at the odd hours of night with a view to commit offences. Thereupon, the S.O. divided the police force into two parties. The first party led by the S.O. himself and four constables took position The second party led by S.I. Ramayan Singh took position towards east. The S.O. gave necessary instructions to all for the success of raid. One of the miscreants was heard saying that they were getting late and there were clouds in the sky and exhorted his associates to proceed to the house of Bhagirathi Singh, a resident of village Kurari, for the purpose of committing dacoity. The S.O. challenged the miscreants and flashed his torch and asked them to surrender. Both parties swung into action and after using necessary force succeeded in apprehending six dacoits on the spot at about 0-30 A.M. Two dacoits succeeded in running away.
5. On enquiry by the police, the dacoits disclosed their names as Mohan. Genda Lal, Shrikant, Ram Adhar, Ram Kishan and Ram Babu. One country made pistol and four live cartridge's were also recovered from the possession of Mohan. Accused Genda Lal was found carrying in a bag one country made pistol and three live cartridges and one torch. Shrikant was also having one Tamancha in his bag and three live cartridges and one torch. Ram Kishan had an axe in his right hand. Ram Babu and Ram Adhar were carrying lathies.
6. All the recovered arms and ammunitions were sealed on the spot and the dacoits were made 'Baparda', A recovery memo was prepared by the S.O., which was signed by all the police personnel.
7. A case was registered at the Police Station on the basis of seizure memo at crime Nos. 165 to 168 which was investigated by P.W. 3 S.I. Shafi Ahmad. After completing investigation, he submitted charge free against all the six accused under Section 399/402 I.P.C. He submitted three charge sheets separately against Mohan, Genda Lal and Shrikant under Section 25 of the Arms Act.
8. After committal of the case on 29.10.80, all the six accused were charged under Section 399/402 I.P.C. on 28.8.81. On the same day, accused Mohan and Shrikant were charged under Section 25 of the Arms Act. All the accused pleaded not guilty and claimed to be tried.
9. At the trial, the prosecution examined P.W. 1 S.O. Kaptan Singh, P.W. 2 S.I. Ramayan Singh, P.W. 3 S.I. Shafi Ahmad, who is I.O. of the case and P.W. 4 constable clerk Ram Sewak Singh, who prepared chick report and made entry in the G.D. at serial No. 5.
10. All the six accused were sent to jail on 28.8.80 vide entry in the G.D. at serial No. 14.
11. All the accused totally denied their arrest and recovery of arms and ammunitions from their possession, as alleged by the prosecution and pleaded their false implication. According to Mohan, he was arrested from his house. Shrikant was arrested by the police from his shop on 27.8.80. He was detained at the Police Station on 28.8.80 and was sent to jail on 29.8.80. Ram Kishan claimed to have moved an application against the local police in the year 1980 and he was brought to Police Station from his house. Ram Babu pleaded that he was falsely implicated at the instance of Brahmins of his village because he left services and did not help in their cultivation.
12. Accused Ram Kishan examined himself in his defence.
13. After having considered the entire evidence on record led by the parties, learned Sessions Judge found all the accused guilty and convicted and sentenced them as noted above.
14. I have heard learned Counsel for the appellants at length, learned A.G.A. and perused the entire record carefully.
15. Learned Counsel for the appellants has assailed the impugned judgment mainly on the grounds that no public witness was associated with the alleged arrest or recovery of the arms and ammunitions from the possession of the appellants. No identification of the appellants was held by the prosecution. There was no exchange of fire and none sustained any injury in the course of entire incident. The prosecution failed to establish that country made pistols allegedly recovered from the possession of the appellants were in working order or not and no ballistic report was produced in the trial Court. It was also submitted that signatures of the appellants were not obtained on Fard recovery. Moreover, the arresting officer did not furnish any copy of seizure memo to any of the appellants and the prosecution version appears to be highly doubtful and the conviction of the appellants is liable to be set aside.
16. Reliance was placed by the learned Counsellor the appellants on the following decisions:
1. Chhotey (Dead) and Ors. v. State of U.P. 2004 (48) ACC 169.
2. Amar Singh and Ors. v. State of U.P. 2003 (46) ACC 316.
3. Babu Lal and Ors. v. State of U.P. 2000 ACC (Suppl.) 311.
17. On the other hand, learned Counsel for the State has supported the judgment under appeal and has contended that the appellants were rightly found guilty.
18. I have considered the submissions made on behalf of the parties and have gone through the entire record including oral and documentary evidence led by the parties. In my opinion, there are some strong factors which rendered the case against all the appellants to be doubtful and the impugned judgment is liable to be set aside First of all, I find that no public witness in support of the prosecution case was examined. Learned A.G.A. tried to argue that since the police party was patrolling near the scene of incident and felt presence of some criminals, the police party decided to take preventive action and succeeded in apprehending six dacoits on the spot, There was actually no time at the disposal of S.O. to call public witnesses from the nearby village. I have considered this contention of learned A.G.A. I am, however, not prepared to accept this submission. The S.O. could call members of public to witness the recovery of arms and ammunitions from the possession of the appellants after their arrest. After effecting arrest of the appellants, one or two constables could be sent to the adjoining villages and some public fitnesses could be summoned to witness the incident. But this was not done. It is true that there is no rule that prosecution version cannot be accepted unless supported by public witnesses. I wish to emphasize that in the present case, further circumstances taken together with the absence of public witnesses create reasonable doubt as to the happening, as alleged by the prosecution
19. Admittedly, neither signatures of the appellants were obtained on the seizure memo nor copy thereof was furnished to any of the appellants Thus, I find a serious lacuna in the prosecution case. It is noteworthy that seizure memo was prepared by the S.O. himself which has been signed by the three Sub-inspectors and six constables. It was known to the S.O. that copy of recovery memo is furnished to the accused. He, however, did not care to supply copy of the memo.
20. As mentioned above, out of six dacoits, three were armed with country made pistols and were having ten live cartridges also. They were ready to proceed to commit dacoity, However, none of them had loaded the pistols. Two dacoits are said to have run away despite the presence of sufficient police force who were fully armed. However, there was no exchange of fire and none of the appellants resorted to fire in self-defence. Even the dacoits carrying lathies did not ,use them in defending themselves. This part of the prosecution version is not reliable and does not stand to reason.
21. I further fail to understand that the dacoits who had assembled at the culvert were talking so loudly that their voice was heard by the police party in the odd hours of night. It does not stand to reason and this part of prosecution version cannot be accepted. In ordinary course they would have first got assured of their safety by having a look around the place before talking of such secret.
22. The last but not the least important point is that the police party did not recover a single penny from the possession of any of the appellants. Non-recovery of coins or currency notes from the pockets of the appellants makes the prosecution story doubtful.
23. In view of the aforesaid scrutiny of the evidence on record, I have arrived at the conclusion that prosecution failed to establish its case against any of the appellants beyond reasonable doubt The possibility of false implication of the appellants cannot be ruled out.
24. In the result, I allow all the four appeals and set aside the conviction and sentence of the appellants The appellants (Ram Kishan, Shree Kant, Mohan and Ram Babu) are hereby acquitted of all the charges. They are on bail. They need not surrender. The material exhibits shall be dealt with as per direction of the trial Court
25. Let a copy of this judgment alongwith record of this case be immediately sent to the Court below for necessary action and necessary entries in the relevant register under intimation to this Court within one month.