PURAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE appellants have preferred this appeal against their conviction and sentence passed by Sessions Judge, Almora vide his judgment and order dated 24-9-1983, in Sessions Trial No. 4 of 1983, whereby the appellants were convicted U/s 394/397 I. P. C. and both of them were sentenced to ten years R. I. and ac cused/appellant Puran Singh was further convicted U/s 25 and 27 of the Arms Act and was sentenced to six months and one year's R. I. respectively. The sen tences against the accused Puran Singh were to run concurrently.

(2.) BRIEF facts of the prosecution case are that on 4-9-1982 Mohan Singh lodged written report, Ext. Ka. 1 at Parti Patwari, Galai, District Almora with the allegations that on 3-9-1982 he was going from his house in village Pinglo to Kandhar to the shop of his father, at about 6 PM. when he reached the bend of Kandhar Motor Road in the jungle, two unknown persons surrounded him. One of them took out a knife from his pocket and the other took out a pistol and placed it on his chest, saying that whatever he had, he should handover to them. Mohan Singh told them that he had nothing with him, but the said two persons began to take his search and took out Rs. 10/- from his pocket. When the complainant heard whispering sound of some persons from downward, he raised alarm of 'thief-thief, the persons sitting in Kandhar came running there and surrounded the two unknown per sons. On being apprehended, they told their names, parentage and addresses. On their search being made, a pistol (mate rial Ext. 1) with five live bullets (material exhibits 2/1 to 2/5) and one fired bullet (material Ext. 5), 10/- rupee note robbed from Mohan Singh (material Ext. 7), a Jhola (material Ext. 8) and its contents (material Exts. 4 and 6), were recovered from Khim Ram. The two accused had also received some visible injuries at the time of their running away. 3. On the basis of the written report chick Report No. 1/82, Ext. Ka. 2 was prepared at 8 A. M. on 4-9- 1982 under Sections 292 I. P. C. and 25 Arms Act by the Patwari. The case was registered and the investigation was made by the Patwari Daya Chandra, who on 4-9-1982 prepared a recovery memo, Ext. Ka. 3 of the incriminating articles. The I. O. also visited the place of occurrence and prepared site-plan, Ext. Ka. 4. On 6-9-1982 he submitted report to the Dis trict Magistrate to accord sanction for the prosecution of accused Puran Singh under the Arms Act. After completing the investigation, he submitted charge sheets, Ext. Ka. 5 against the two ac cused persons and Ext. Ka. 6, against accused Puran Singh U/s 25 of the Arms Act. 4. On committal of the case to the court of Sessions, the learned Sessions Judge framed charge U/s 392/397 I. P. C. against both the accused and further framed charge U/ss 25/27 Arms Act against accused Puran Singh. The ac cused persons denied the charge and claimed to be tried. 5. The prosecution in order to prove its case examined P. W. I. Mohan Singh, P. W. 2, Gusain Singh, P. W. 3, Bhawan Singh and P. W. 4, Daya Chandra Patwari, the I. O. of the case. 6. Out of these witnesses, P. W. I, Mohan Singh is the person with whom the alleged incident took place. He also lodged the written report at the Patwari Chauki. This witness has narrated the prosecution story. He deposed that on 3-9-82 when he was coming to the shop of his father situate at Kandhar in the way he saw two persons sitting there and on his reaching there they stood up, one person took out knife and the other took out pistol and pointed the pistol at his chest and told him to handover whichever he had. When the witness told them that he has nothing then the per sons having pistol started his search and took out 10/- rupee note from his pocket and the other person kept the note in the bag being carried by them. This witness further deposed that when he heard whispering sound of some persons then he raised alarm and hearing the alarm Gusain Singh and Govind Singh reached there. He told the incident to them and then they chased the accused persons raising alarm to catch the thief. On this, village people surrounded them and re covered the incriminating articles, pistol, knife, ten rupee note, five bullets etc. This witness, further deposed that there after he lodged the written report, Ext. Ka. 1 at the Patwari Chauki. 7. P. W. 2, Gusain Singh is the wit ness of recovery of the incriminating ar ticles. He has also deposed that hear ing the alarm of Mohan Singh he along with Govind Singh had reached at the spot and saw there Mohan Singh who had told them that two dacoits had robbed. ten rupee note from his pocket pointing the pistol and knife at his chest. This witness has narrated about the re covery made from the accused persons, as has been alleged by the prosecution. 8. P. W. 3, Bhawan Singh, has his shop in village Kandhar. This witness has narrated about the recovery part of the prosecution case as well as the ar resting of the accused persons. 9. P. W. 4, Daya Chandra is the ''atwari who had investigated the case. This witness has narrated the steps taken by him during the investigation and proved the prosecution papers pre pared by him during the investigation. 10. It will not be out of place to mention here that both the accused had received injuries in the incident and the I. O. had taken them to District Hospital, Almora for medical examination, where they were medically examined by the Emergency Medical Officer, on 5-8-1982. On the person of the accused Puran Singh, following injuries were de tected : 1- Contusion blue in colour 5cm x 4cm all around the left eye. 2- Lacerated wound 3. 5cm x 1cm x (right lower eyelid everted 1cm ). Pus present, subconjunctiral haemorrhage present. Referred to Ophthalmic Surgeon for vision. 3- Abrasion 6cm x 0. 5cm transversally placed over right upper arm, 9cm below from right shoulder joint, blood crust present. 4- Abrasion 4cm x 0. 5cm below the injury No. 3 blood crust present. 5- Abrasion 3. 5cm x o. 5 cm over the left shoulder joint hard blood crust present. 6- Multiple abrasion on the back left side of chest (3cm x O. 5 cm, 2cm x 1. 5cm, 3cm x 0. 5cm, 1cm x 1. 5cm) hard blood crust present. 7- Complaining pain over both thighs. No external injury seen. 8- Abrasion 5. 5cm x 1 cm on the posterior aspect of right forearm 6cm below the right elbow, blood crust present. On the person of accused Khim Ram following injuries were detected : 1- Lacerated wound 2. 5cm x O. 5 cm x bone deep on center of the skull vault, 10cm above the upper end of left ear pinna. Pus present. 2- Abrasion 2. 5cm x 0. 5 cm on the right upper eyelid covered by blood crust. 3- Abrasion 0. 5cm x 0. 5 cm on the left side of the nose, 2cm above the left ulna, blood crust present. 4- Abrasion 0. 5cm x 0. 2cm left side of nose, 2cm medial to injury No. 3. 5- Abraded contusion in an area of 16cm x 13cm on left side of the back, just above the left renal an gle blue in colour, multiple abra sions of sizes (0. 5cm x 0. 5cm, 1. 5cm x 1cm, 1cm x 0. 5cm) abrasion covered by blood crust. 6- Linear contusion bluish in colour three in number on the position lateral aspect of left thigh size (9cm x 0. 5cm, 13cm x 0. 5cm, 1cm apart from No. 1, 13cm x 0. 5cm, 2cm apart from No. 2), 16cm below from posterior iliac crest. 7- Abrasion 3. 5cm x 1 cm over the outer medial aspect left knee. 8- Abrasion 18cm x 0. 5cm, 3cm be low the right knee, pus present. 9- Linear contusion, 5cm x. 5cm long blue in colour over the pos terior aspect of right thigh, 1cm apart each other 12cm below the right posterior iliac crest. In the opinion of Medical Officer the injuries were simple in nature, caused by some hard, blunt object and friction. Duration was about two days. 11. The accused persons in their statements U/s 313 Cr. PC. have denied the prosecution case and alleged that on the day of the occurrence they were go ing to the in-laws house of the brother of accused Khim Ram and they took tea at the shop of Mohan Singh (complain ant ). After taking tea Mohan Singh asked Khim Ram to wash the glass in which they took tea and when they de clined, Mohan Singh, Gusain Singh, Madan Singh and Bhawan Singh beat them. In the next morning a false case was concocted against them. 12. The learned Sessions Judge on evaluating the evidence on record held the accused persons guilty of the offence U/ss 392/397 I. . FC. and convicted both of them to undergo 10 years R. I. Ac cused Puran Singh was further convicted U/ss 25 and 27 Arms Act and was sen tenced to undergo R. I. for six months and one year respectively. 13. Feeling aggrieved the accused have preferred the appeal before the Allahabad High Court which was sub sequently transferred to this court after creation of new State. 14. I have heard learned counsel for the appellants, learned A. G. A. and pe rused the record. 15. This case is based on peculiar facts and circumstances. According to the prosecution case there was a loot of Rs. 10/- from complainant Mohan Singh on the point of country made pistol. The manner in which the incident has taken place is that the complainant was go ing towards his father's tea-shop and he was passing through a jungle where he met with the accused/appellants, who asked the complainant to hand over the money in his possession. When the com plainant replied that he does not possess any money then the accused/appellants on the point of country made pistol robbed an amount of Rs. 10/- from his pocket. However, according to the pros ecution case, the accused/ appellants were arrested immediately after being chased by the other persons and were given in the custody of the Patwari along with a countrymade pistol in possession of accused/appellant Puran Singh. 16. The accused / appellants have been charged for committing the offence U/s 394 read with Section 397 I. P. C. The accused / appellant Puran Singh has also been charged for the offence U/ss 25 / 27 of the Arms Act. 17. It appears from the record that the learned Sessions Judge while con victing the accused / appellants has ig nored the defence version out rightly. The defence has produced the injury reports of both the accused / appellants Puran Singh as well as Khim Ram. The prosecution case is that the accused per sons sustained injuries while running from the scene of the occurrence, but the injury reports of appellants Puran Singh and Khim Ram which are avail able on the record as paper Nos. 27/10-Ka and 27/11-Ka, show that appellant Puran Singh sustained as many as 8 injuries on his person. The doctor kept under observation the injury No. 2, which was lacerated wound, measuring 3. 5cm x 1 cm on the right lower eyelid, as subconjunctiral haemorrhage was present. The doctor referred this injury to Ophthalmic Surgeon for vision. The doctor also opined that injuries sustained by appellant Puran Singh were caused by some hard object and friction. Fur ther the injury report of appellant Khim Ram shows that he sustained as many as 9 injuries on his person. It is true that these injury reports are not exhibited as they have not been proved by the doc tor, but these reports indicate that both the appellants were produced before the doctor by the Patwari and the doctor opined that all the injuries on the per sons of the accused were about two days old. Therefore, on the basis of these injury reports this factor cannot go unnoticed that the appellants sustained injuries on their persons during the course of incident. The defence has put the suggestion to P. W. 1 Mohan Singh, P. W. 2, Gusain Singh and P. W. 3, Bhawan Singh that both the appellants were taking tea at the shop of Madan Singh, fa ther of the complainant Mohan Singh and complainant and his father asked the appellant Khim Ram to wash his glass. The accused Khim Ram declined to that and on account of this a quar rel took place in which the appellants were assaulted and they sustained the in juries. 18. P. W. 1, Mohan Singh has ad mitted in his deposition that his father Madan Singh has a tea shop at Kandhar Village. He has also admitted that at the time of the incident he was going to village Kandhar where his fa ther's shop is situate. This witness has also stated that the accused persons sustained injuries while they were trying to escape from the place of the occur rence, as the accused persons while es caping from the place of the occurrence fell in a bush due to which their pants were torn and they sustained injuries. But in case if a glance on the injury reports is put, then it would appear that these injuries could not have been caused only by fall or by the friction from the bushes. The trial court while discussing the evidence produced by the prosecu tion in support of its case did not take into account at all the injuries of the accused / appellants. The prosecution has although tried to clarify the situa tion with regard to the injuries sustained by the accused persons, but the manner in which the injuries have been caused on the persons of the accused/appellants creates a doubt with regard to the pros ecution case. The injuries on the persons of the accused/ appellants show that the prosecution case did not take place in a manner as has been alleged by the prosecution itself. 19. The appellants have taken the stand in their statement U/s 313 Cr. RC. that they had taken tea at the shop of Mohan Singh, complainant Mohan Singh asked accused Khim Ram to wash his glass in which Khim Ram took tea. Khim Ram accused declined and replied that when he had paid the money for the tea then why should he wash the glass. The exchange of hot words con verted into a quarrel and during the scuf fle, the accused/appellants were beaten by the persons assembled at the shop and subsequently they were implicated in a false case. The statements of the accused/appellants appear to be natural. The version of the accused persons is cre ating a doubt on the authenticity of the prosecution case. The trial court while convicting and sentencing the accused/ appellants should have taken into con sideration this aspect of the case and by ignoring this aspect at all, the trial court has committed a manifest error appar ent on the face of the record. It is true that the defence has not to establish its case beyond reasonable doubt but in case if the defence succeeds in creating a slightest doubt with regard to the pros ecution story, then it would not be safe to convict the accused/appellants on account of the prosecution case which has doubt in itself. 20, The second aspect of this case is the recovery of a country made pistol from the possession of the appellant Puran Singh. The witnesses of the pros ecution although have stated in their statements that a country made pistol was recovered from the possession of ac cused/appellant Puran Singh but it be comes highly doubtful whether the coun try made pistol which is alleged to have been recovered from the possession of the accused/appellants was in fact in a working condition at the time of the oc currence or not. The prosecution case is also that the accused/appellants fired a shot from the country made pistol while making good their escape from the place of the occurrence, but the statement of PW. 4, Daya Chandra Patwari creates a doubt with regard to this aspect of the matter. This Patwari has stated that be fore the sealing of the recovered coun try made pistol, he neither opened it nor tested it in order to see as to whether the pistol was in a working condition or not. This witness has although stated that he smelled the barrel of the coun try made pistol and there was a smell that the fire arm was used freshly. But this part of the statement of P. W. 4 does not find corroboration with the recovery memo as in the recovery memo there is no mention about this fact that this Patwari had infact smelled the barrel of the fire arm in order to see whether it was used freshly or not. Therefore, fail ure on the part of Daya Chandra Patwari who had sealed the recovered country made pistol from the spot in order to find out by smelling the fire arm as to whether the arm had been freshly used or not, adds its own weight to the vol ume of doubt created in the prosecution case. 21. Further the sanction granted in this case for according the prosecution against the appellant Puran Singh does not appear to be proper and Ext. Ka. 7, which is the sanction order passed by the District Magistrate, Almora shows that the same has been accorded with out application of mind. The sanction order shows that the District Magistrate perused the documents placed before it and he was of the view that the accused / appellant Puran Singh was having a country made pistol and five live car tridges in his possession which was with out licence, but the recovery memo shows that one country made pistol along with five live cartridges and one empty cartridge was recovered from the possession of the accused / appellant Puran Singh. Four live cartridges were inside the country made pistol while one live cartridge was found from the pocket of accused / appellant Puran Singh and another empty cartridge was also found but the sanction order shows only five live cartridges and there is no mention about the empty cartridge in the sanc tion order. Therefore, it appears that the sanctioning authority had no occasion to peruse the entire material placed before it and the sanction was accorded by the District Magistrate in a mechanical man ner. The recovery memo also does not indicate anywhere that out of five live cartridges one live cartridge was recov ered from the pocket of the accused / appellant. It is only in the evidence of P. W. 1, Mohan Singh that one live car tridge was also recovered from the pocket of accused / appellant Puran Singh, therefore, the order of according sanction by the District Magistrate is also not in consonance with the recovery memo and this situation is also creat ing a doubt on the prosecution case. 22. On the basis of the discussions of the evidence made above, I am of the view that the prosecution has not successfully established the genesis of its case. It is doubtful that the incident infact has taken place in the manner as has been alleged by the prosecution. In case if the defence version is taken into account then certainly I have no hesitation in coming to the conclusion that the prosecution could not establish the case against the accused / appellants beyond reasonable doubt. 23. With the above observations. I come to the conclusion that the im pugned judgment and order dated 24-9-1983 is liable to be set aside. 24. The appeal is allowed. The judg ment and order 24-9-1983 passed by Sessions Judge, Almora in S. T. No. 4/ 1983, convicting and sentencing the accused / appellants U/ss 394 / 397 I. P. C. and further convicting and sen tencing the accused / appellant Puran Singh U/ Ss 25 / 27 Arms Act is set aside. 25. Accused/appellant Puran Singh is in jail. He shall be released forthwith, if not wanted in any other connection. 26. Accused / appellant Khim Ram is on bail. He need not surrender. His bail bonds and sureties are discharged. 27. Let the lower court record be immediately sent back to the trial court for compliance. .