ORDER B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 26-6-1981 passed by Sri N.C. Jain, the then IXth Additional Sessions Judge, Agra in S.T. No. 646 of 1980, whereby he convicted the accuse-dappellants Yasin and Shanker of the offences under Sections 399/402, I.P.C. and sentenced them to undergo R.I. for a period of 3 years each and further convicted each one of them of the offences under Section 4/25 of the Arms Act and sentenced each one of them to undergo R.I. for a period of 6 months and directed the sentences to run concurrently.
2. Present accused-appellants Yasin and Shanker and co-accused Rajvir were tried together by the learned Addl. Sessions Judge in the said Sessions Trial. The present accused-appellants were convicted and sentenced as aforesaid the impugned judgment Rajvir co-accused also was convicted for the offences under Sections 399/402, IPC and awarded similar sentence of R.I. for a period of 3 years. His conviction was also made for the offence under Section 25 of the Arms Act and he was sentenced to undergo R.I. for a period of 9 months for this offence by the same judgment. The present appeal was preferred by Yasin and Shanker accuse-dappellants. The record of the appeal by Rajvir co-accused is not before this Court.
3. The arguments of this learned counsel for the accused-appellants and the learned A.G.A were heard in this appeal. At that time it was not pointed out by the counsel for any of the parties that Criminal Appeal No. 2354 of 1981 was preferred by the third accused and that it was pending. Since the appeal is an old one and the arguments have been heard, I do not consider it necessary to defer the judgment and list this appeal again for arguments along with the criminal appeal of the co-accused.
4. The prosecution story in this case is that on 2-7-1980 at about 8.30 p.m., Sri Ramesh Chandra Sharma, S.O. P.S. Ahahganj, District Agra received information at about 8 or 8.30 p.m. from an informer that some bad characters would assemble in the Dharmshala of the Chabootra of Mall in Shivaji Nagar along with weapons, whereupon, the S.O. collected the force and proceeded for the scene of occurrence and reached to Chabootra of Mall, that an effort was made to take public witness but it failed, that the police force took mutual research to ensure that no one was having illicit items with him, that then two parties were made, one in the leadership of Ramesh Chandra S.O. and the other in the leadership V.L. Gautam, S.I. Some force was kept in the first party and the rest was kept in the second party. The first party was positioned on the East of the Dharamshala, while the second party was positioned on the West of the Dharamshala, after they had taken position, they saw that 5 persons were assembled in the Dharamshala and were smoking Biries and were conversing with each other, that one was saying that, "HAR PRASAD SHARMA KE PAS KAFI PAISA HAI, USKEY YAHAN DACOITY DALI JAVEY", that another person was saying "AB INTEJAR KARNA BEKAR HAI. HAMAREY PAS KAFI ASLAHA HAI. SAHAR MEN DACOITY ASANI SEY DALI JA SAKTI HAI. AB SAMAY NAST KARNA BEKAR HAI", that at the time, it was 11.00 or 11.15 p.m., that after the aforesaid conversation, all the 5 bad characters got up and prepared to move whereupon, the police parties got assured that it is a gang of dacoits assembled and preparing to commit dacoity, that consequently, Ramesh Chandra Sharma S.O. challenged the bad characters, whereupon all of them started running towards south, but both the raiding parties surrounded them and arrested three of them at 11.40 p.m. while two of their companions managed to escape towards East, that those companions were Mahavir, Yasin and Shanker, that on a search being taken by the S.O., a D.B.B.L. gun, 25 topies, 25 pellets and 50 grams of gun-powder was recovered from the possession of Rajvir coaccused, a knife and Kulhari were recovered from Yasin accused-appellant and a knife was recovered from Shanker accused-appellant, that half burnt pieces of match sticks and Biries were collected from the spot, that recovery memo was prepared and the recovery articles were sealed at the spot, that the accused-persons who had run away could not be arrested despite chase being given, that then the police party returned to the police station where the case was registered at the Police Station at 2.00 a.m. on 3-7-1980 under Sections 399/402, I.P.C. and separate cases under Section 4/25 of the Arms Act were registered against Yasin and Shanker accused-persons and a separate case under Section 25 of the Arms Act was registered against Rajvir co-accused.
5. After conclusion of the investigation, separate charge-sheets were submitted and the joint trial was made by the Addl. Sessions Judge and the conviction was made and sentences were awarded as aforesaid.
6. Learned counsel for the accused-appellants, Yasin and Shanker has claimed that the prosecution story in this case is highly suspicious and doubtful and the prosecution evidence led at the trial is wholly unreliable. His argument has force. In this case, the ocular testimony about the occurrence has been given by Siya Ram Tewari S.I. P.W. 1 and Bankey Lal Chauhan, S.I. P.W. 2, Ram Singh S.I. P.W. 3 was the I.O. in this case. He has given evidence about the investigation made in this case, Ramesh Chandra Sharma, the architect of the raid has not entered the witness box. It was he who had received information from the informer, it was he who collected force from the police station and from elsewhere and it was he who was to explain why public witnesses could not be associated with the raid and recovery and again it was he who led the raid and made the raid and the recoveries set up by the prosecution. His non production in the witness box and that too for no apparent reason raises a grave doubt in the mind about the truth of the prosecution case. The evidence furnished by the two sub-inspectors who claimed to be associated with the arrests and the recoveries is highly doubtful. No fire was made from the side of the police and no weapon was used by any of the arrested accused against the police nor any of their two companions who are said to have run away, are said to have tried to use any weapon against the police party. There was no evidence of even a scuffle in the process of arrest. In this case, it is obvious that the police had deliberately abstained from associating public witnesses with the alleged raid and recovery. It is stated by Shiya Ram Tewari, S.I. P.W.I himself in his examination-in-chief that he along with the S.O. and the force proceeded from the Police Station for the spot and reached at the Chabootra of Mall passing through Shivaji Nagar and Janta Colony. That being so, it cannot be believed that an effort was made to take public witnesses but it failed. It has been elicited from him in his cross-examination that the Mall Ka Chabootra was one kilometre away from the Police Station and at a distance of one furlong each from the Chabootra, there are residential colonies on all the 4 sides and that in the way for going from the police Station to Mall-ka-Chabootra, Abadi falls. It has also elicited from Ram Singh I.O. P.W. 3 in his cross-examination that while going from the Police Station to Dharmshala i.e. the place of occurrence, the C.O.D. Colony, Saketnagar and Janta Colony fell in the way and in these colonies, there are kothies in which affluent members of the society lived. He claimed that the S.O. sent constable to call for the witnesses but nobody came. He did not name the constable who was sent for the purpose nor did the S.O. enter the witness box nor was that constable produced in Court to explain how he failed to get the public witnesses for being associated with the raid and recovery. It may be that there is Marghat at the spot but that by itself would not have absolve the prosecution from the responsibility of taking public witnesses while there was ample opportunity for it all along in the way. So even if it is taken that no Sadhus lived in the Dharmshala and no persons were present at the Marghat the prosecution does not stand to gain. Bankey Lal Gaul am S.I. P.W. 2 claimed in his cross-examination that the constable had told him that 2-3 persons met in the way and they had declined to become witnesses. But he did not disclose who was that constable who said so. He also did not name the public witnesses who allegedly declined to become witness. He admitted in his cross-examination that he had told the I.O. that the witnesses had made refusal to the constables. It is not a case where the police party on patrol duty suddenly came across a set of persons assembled and preparing to commit dacoity and challenges them and arrest them with their weapons, where the police party had no opportunity to call public witnesses. Here an information had been allegedly received at the Police Station itself and the S.O. claimed to have not only taken his own force but also call the force from elsewhere and then proceeded to the spot and in the way there was Abadi and there was ample opportunity to take public witnesses. It may be that the two police sub-inspectors who allegedly participated in the raid have testified to the prosecution story but their testimony is to be treated as the testimony of one person in the circumstances of this case. We have already noted that it is not a case where injury was caused to any of the Police Officers in the transaction. If an injury is caused and if it is found on medical examination, it may land assurance to the statement of the Police Officer at the trial but that position also is not available in the present case. It has been elicited at the trial from Siya Ram Tewari, S.I. P.W. 1 that the gun allegedly recovered from Rajvir accused was not in working condition. It may be that the witness claimed that it was in working condition at the time of the occurrence but there is nothing on record to show that it was in working condition at the time of the alleged recovery. This circumstance also casts a shadow of doubt on the prosecution story because none would assemble and prepare to commit dacoity armed with a weapon which is not in working order.
7. As noted earlier, the defence of each accused is a denial of the spot arrest and the alleged recoveries. Considering all the facts and circumstances, the prosecution story appears highly doubtful and the prosecution evidence is highly unreliable. Consequently, the conviction of the accuse-dappellants Yasin and Shanker in this appeal cannot be sustained.
8. For the reasons aforesaid, the appeal is allowed. The conviction and sentence of the accused-appellants Yasin and Shanker for the offences under Sections 399/402, I.P.C. and under Sections 4/25 of the Arms Act is set aside and they are acquitted of these offences. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged.
9. Let a copy of this judgment be sent by the registry to the Sessions Judge concerned within a week from today for information and compliance in the record.