ABHIMANU SINGH Vs. STATE OF U P

JUDGEMENT

(1.) S. R. Bhargava, J. This revision is directed against conviction and sentence passed by the two lower courts against revisionist Abhimanu Singh for offence under Section 394, I. P. C. Incident of robbery alleged in the case was of 9th April, 1979 at 6. 00 p. m. Prosecution story was that Ram Prakash, P. W. 1 and Harish Chandra P. W. 2, were return ing from Punjab. When they reached the spot in the fields in the south-west of village Asalpur revisionist Abhimanu Singh accompanied by Udai Pal Singh and Prithvi Pal Singh, armed with lathis, surrounded them, assaulted them and snatched their belong ings. They cried for help. Ram Prasad, PW. 3, Bhola, P. W. 4 and others came to the rescue of the victims. They challenged the robbers, Two of them could manage their escape. But after some assault revisionist Abhimanu Singh was arrested at the spot. A sum of Rs. 200/- in cash a transistor and attache containing clothes were recovered from the revisionist. Victims has suffered injuries in the incident. Written report of the inci dent was lodged the following day at 7. 30 a. m. at Police Station situate at a distance of about four miles from the spot of incident. This written report was recorded by one Ram Kumar. It is said that Bhola, Ram Prasad and others had taken the revisionist to the Police Station alongwith the property recovered from him. After investigation charge-sheet was submitted against revisionist Abhimanu Singh only.

(2.) MAGISTRATE charged him with offences under Sections 394 and 411 I. P. C. on 10th April,1981 MAGISTRATE recorded examination-in-chief of Ram Prakash, P. W. 1, Harish Chandra. P. W. 2, Ram Prasad, P. W. 3 and Bhola P. W. 4. On that day the witnesses were not cross-examined. On 21st July, 1981 application was moved on behalf of the revisionist that the above four witnesses were not cross- examined on account of illness of their counsel and that they may be called for cross-examination. Learned MAGISTRATE allowed their application and re-called the four witnesses. Ram Prakash and Harish Chandra, P. W. 1 and P. W, 2, did not turn up for their cross-examination, Ram Prasad, P. W. 3 and Bhola, P. W. 4 were cross-examined. Then there was formal evidence of factor and investigating officer.

(3.) NOW this revision before this court. The main question which requires determination in this revision is whether the uncross-examined testimony of Ram Prakash, P. W. 1 and Harish Chandra, P. W. 2, could be read in evidence against the revisionist. It is true that the accused had opportunity to cross-examine them on the day they were examined. But it is equally true that the Magistrate allowed the application moved on behalf of the revisionist the cross-examina tion could not be done on account of illness of his counsel. This ground was accepted and his application was allowed. This means that on the day of examination of the victims and the eye-witnesses of the case accused did not have reasonable opportunity for cross-ex amining them. Subsequently the victims themselves were not made available for cross-ex amination. In the circumstances of the case I hold that the accused did not have reasonable opportunity of cross- examining victims and witnesses Ram Prakash and Harish Chandra P. W. S. 1 and 2. Hence their testimony cannot be read in evidence against the accused. Their testimony was absolutely necessary for the case because the First Information Report was lodged after more than 12 hours. There is admission of Ram Prasad, P. W. 3, in his cross-examination that police man accompanied the witnesses and the revisionist to the police station. Then it is evident that there is contradiction between Ram Prasad, P. W. 3 and Bhola, P. W. 4, about the spot of arrest of the revisionists. It is also evident that two persons named in the First Information Report were not brought for trial. I hold that once the testimony of victims is excluded the prosecution case of robbery, spot arrest and recovery becomes doubtful. In result, it has to be said that there was legal mistake in appreciation of evidence. Revisionist is entitled to benefit of doubt. He must be acquitted and his convic tion and sentence must be set aside.