RAM KISHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an appeal against the judgment and order dated 21-8-1981 passed by Sri B. B. S. Chaudhary, the then XI Additional Sessions Judge, Non-Metropolitan Area, Kanpur in Sessions Trial No. 129 of 1981, State v. Munna Lal and others, whereby he convicted the ac cused-appellants Ram Kishan and Lajja Ram for the offences under Sections 399/402,1. P. C. and sentenced each of them to undergo rigorous imprisonment for a period of three years. 2, The prosecution story as disclosed in the recovery memo dated 4-2-1981 said to have been prepared at the spot of arrest, was that on 3-2-1981, Sri D. S. Verma, the then Station Officer of Police Station Kak- wan, Non-Metropolitan Area district Kanpur, received an information from a reliable informer that a gang of dacoit consisting of 7-8 persons, headed by Rajendra Teli of Derapur would assemble in the grove Mana of village Manawa and would commit dacoity at the house of Mewa Lal Pradhan of village Manawa; that on this information, he took with him S. I. G. S. Yadav and S. I. R. D. Yadav and some constables from the police station along with necessary arms and ammunitions and made departure along with the informer and took Dular and Ganga Ram public witnesses from the way and reached at Manawa bridge where Chandra Pal and Lallu Ram met them along with public witnesses Sipahi Lal (P. W. 1) Raja Ram and Ram Narain (P. W. 2) out of whom Raja Ram was armed with a gun and the rest were armed with lath is and torches; that at about 9. 00 p. m. , the Station Officer, who was the architect of the raid, divided the police and public witnesses in three par ties. Party No. 1 was made in his own leadership and included with him public witnesses Debi Prasad and Sipahilal (P. W 1 ). Party No. 2 was made under the leader ship of G. S. Yadav S. I. which included two constables and public witnesses Raja Ram and Ram Narain (P. W. 2) and party No. 3 was made under the leadership of R. D. Yadav S. I. which included two constables and two public witnesses Dulare and Ganga Ram. Party No. 1 was instructed to take position to the north of the grove in the Aar of Khain party No. 2 was in structed to take position to the west of the grove in the Aar of Khain and Mend and party No. 3 was instructed to take position to the south of the grove in the Aar of mango trees; that mutual search was taken and then necessary instructions were given to the members of the parties by the Sta tion Officer and then Chandra Pal Singh and Lallu Ram constables were deputed to guard the house of Mewalal Pradhan of Malawa which was to be the target of the dacoits as per information received; that all the parties went to the spot and took position by 9. 45 p. m. at the respective places assigned to them; that at about 10. 30 p. m. the dacoits came in the grove one by one and assembled under the Mango and Mahuwa trees and started smoking Biris and cigarettes; that out of them, one retorted "bhediya Abhi Tak Nahi Aaya Hai. " Another dacoits said "kafi Mai Milega Lutna Hai"; that the dacoits were talking with each other with a plan to commit dacoity and were wailing for the Bhedia; that one of the dacoits then retorted "abhi Bhediya Nahi Aaya Hai Der Ho Rahi Hai Chalo Chala Jai"; that at this stage, the police informer told the Station Officer that it is the gang of Rajendra Teli; that on being satisfied that it is a gang of dacoils assembled and preparing to commit dacoity he chal lenged the dacoits that they arc under the seize of police and directed them to sur render, that at the same lime, the Station Officer fired VL. P. shots which created a flood of light; that the raiding parties at once attacked the dacoits and beating them with lathis arrested five of them at the spot while two of (hem managed to escape who were seen and identified in the light of the VL. P. shots and torches as being Mathdu Lal and Mcghnath; that the arrested dacoits were Munna Lal, Rajendra; Ram Prakash, Lajja Ram and Ram Kishan. According to the prosecu tion story, a country made tamancha and five live cartridges were recovered from a Thaila which was in the right hand of Munna Lal accused; that a country made Tamancha and three live cartridges and a torch were recovered from a Thaila which Rajendra was holding in his hand; that Ram Prakash co-accused was found carry ing akulhari with him; that Lajja Ram and Ram Kishan, the preseni accused-appel lants, both were carrying on lathi Bans each. According to the prosecution story, the recovery and the spot arrest was made at 11. 00 p. m. in that night and necessary recovery memos were prepared at the spot and the recovered articles were separately sealed and then they arrested daroits, including the two present accused- appel lants were taken to the police station and lodged there at 3. 30 a. m. on 4-2-1981. A case under Sections 399/402, I. P. C. was registered against all the five accused who were arrested on the spot and two accused who had managed to escape and cases under Section 25 of the Arms Act were further registered against Munna Lal alias Devendra and Rajendra as they do not possess any licence for having the fire arms and cartridges on their person. 3. The investigation of the case was entrusted to Jaivir Singh S. L. (R W 4) and in due course submitted charge-sheet against all the accused aforesaid including the present accused- appellants. 4. After committal, all the aforesaid five accused, who were said to be arrested at the spot and from whom recoveries were made, were tried together by the learned Additional Sessions Judge for the said of fences. At the trial, the ocular testimony was given by Sipahi Lal, a public witness in party No. 1 (P. W 1); Ram Narain, a public witness in party No. 2 as (P. W. 2) and R. D. Yadav, who was the leader of party No. 3 as (PW 3 ). The Investigating Officer Jaivir Singh was examined in the case as P. W. 4. All the five accused, who are said to be arrested at the spot, denied their as semblage and preparing to commit dacoity, spot arrest and alleged recoveries and claimed that they have been falsely implicated in the case. Mewa Ram Up-Pradhan was examined by Lajja Ram ac cused-appellant in his defence. 5. Sri R. D. Yadav S. I. (P. W 3) has narrated the prosecution story from begin ning to end as outlined above including the receipt of information by the Station Of ficer from an informer; the departure from the police station with force, the taking of public witnesses in the way, the reaching at the bridge; the arrival of two constables with further public witnesses; the making of parties, the mutual search; the issue of necessary instructions; the despatch of police constables to guard the house of intended victim Mewa Lal Pradhan; the going of the parties to the grove of Mana aforesaid and their taking position and coming of the dacoits one by one; their assembly, their retort -. , their planning to proceed; the challenge by the Station "of ficer; the firing of VL. P. shots, the raid, the spot arrest of the five accused and the running away of two dacoits from the spot; the search and recovery from each of the five arrested accused, the sealing of the recovered properties, the preparation of recovery memo and the return to the police station along with the five arrested dacoits and the recovered property, the lodging of the five accused at the police station and the preparation of Chik report about the case on the basis of the said recovery memo. He also testified that the arrested dacoits, from whom the fire-arms and ammunitions were recovered, could not produce any licence for keeping the same. 6. Sipahi Lal (P. W 1) claimed that he was taken from his house by two constables who had come there and taken to Manawa bridge where the police force met them and the Station Officer told them about the information received. He also broadly testified to the further part of the prosecu tion story as aforesaid from that stage. 7. Ram Narain (P. W 2) claimed that on 3-2-1981, he was taken by two con stables from his house and taken to Manawa bridge where the police and public witnesses were present and there the Station Officer had apprised him of the information received and testified the remaining part of the prosecution story as aforesaid. 8. The learned Additional Sessions Judge believed the prosecution evidence of assembly and preparation for commit ting of dacoity, the recovery alleged from them and the spot arrest of the five accused and consequently convicted and sentenced them as aforesaid. 9. The present appeal has been prepared by Ram Kishan and Lajja Ram accused. Criminal Appeal No. 2704 of 1981 preferred by Rajendra accused, has abated due to his death. Accused Munna Lal had preferred separate Criminal Ap peal No. 2167 of 1981 but he was not traceable at his address and so his appeal has been separated. It is not clear whether Ram Prakash co-accused had preferred any appeal against his conviction and sen tence or not. Thus, at present, we have before us only the appeal preferred by Ram Kishan and Lajja Ram accused against their conviction and sentence for the offences under Section 399/402, IPC. 10. I have heard the learned counsel for the accused-appellants and the learned A. G. A. and have also gone through the record of the case. The learned counsel for the accused-appellants, has claimed that the entire prosecution story from beginning to the end is a concoction and that all the five accused persons were arrested from here and there and booked in this case by carving out a false story of receiving information from an in former, departure from the police station, taking the public witnesses, the as sembly and preparation for committing dacoity, raid, spot arrest and recovery. There is substance in his argument. 11. The first point to be noted in this case is that G. S. Varma, Station Officer of the police station, who was the architect of the raid had not entered the witness-box and to say at what time, he received the information from the informer and to tes tify to the remaining part of the prosecu tion story as aforesaid. In his place, the prosecution has examined R. D. Vadav S. I. the leader of party No. 3 at the trial as P. W. 3. He testified to the prosecution story but he did not say anywhere that any informa tion from an informer was received by the Station Officer in his presence and in his hearing. He has also nowhere said as to on what time and at what place the Station Officer had received the information from the informer, and also did not say as to when and where the S. O. told him about it. He testified to departure dated 3-9-1981. It may be taken to be a slip of tongue on his part or a clerical lapse of the Reader who was record ing the statement of this witness because his evidence was recorded on 5-8-1981 prior to 3- 9-1981 and we take it that he was testifying about the departure on 3-2-1981. Still the fact remains that he did not testify to the time of departure of the force including himself from the police station and did not prove the entry of the general diary about the receipt of the information from informer and the entry about the departure of Station Of ficer and the police force from the police station including himself. 12. It is also to be noted that in the G. D. entry of departure at 8 a. m though the name of R. D. Yadav S. I. has been men tioned it did not purport to be tallied by him or even by a single member of the police force, who are stated to have made their departure through it with the S. O. THIS omission tends to show that it was a paper entry made in the G. D. to serve later as a pice of evidence about the departure of the police force. 13. According to the recovery memo on whose basis the chik report of this case was prepared, the witnesses Debi Prasad, Sipahi Lal (P. W. 1), Ram Narain (P. W. 2) and Dava Ram met the police force at Manwa bridge along with two constables Chandra Pal and Lalla Ram. However, the prosecution has not proved any entry in the G. D. of the police station about the dispatch of any such constables from the police station to fetch the wiinesses. There is also no mention in the recovery memo that these constables were sent from the police station for bringing the witnesses to Manawa bridge. Then even R. D. Yadav S. I. (P. W. 3) did not say that any constables were sent from the police station separate ly to fetch witnesses to the bridge. He only testified that when he and the police force reached at Manawa, they met two con stables who had been sent from before for bringing the witnesses and that they had brought witnesses Sipahi Lal (P. W. 1) and Ram Narain (P. W. 2) to the bridge. He, however, did not say from which place in the way these constables were despatched to call witnesses. 14. Now at this stage, same material discrepancies may be referred to. Accord ing to Sipahi Lal (P. W. 1), the Pradhan of village Naya Newada two constables had come at his house to call him and that he, Raja Ram, Devi Prasad and Ram Narain went to Manawa bridge straightway where the police force met them. In his cross-ex amination he stated that on the date of occurrence, two constables had reached at his house and that at that time, he was sitting at the door and was talking with 2-4 persons. He testified that it was winter and he, Raja Ram, Debi Prasad and Ram Narain were warming by the side of Alav. On the other hand, Ram Narain (P. W 2) testified that on 3-2-1981, he was at his house at 8. 30 p. m. when two constables came to him and look him lo Manawa bridge where he met the police force and two public witnesses. THIS discrepancy cannot be reconciled. The constable who is said to have collected these witnesses has not entered the witness box. Again a doubt is cast on the prosecution story. 15. We have noted earlier that as per the recovery memo, party No. 1 was posted in the north of grove in the Aar of Khain party No. 2 was posted to the west of grove in the Aarof Khain and Mendand party No. 3 was posted to the south of the grove in the Aar towards mango trees. In the site plan prepared by the Investigating Officer, respective positions of the parties have been depicted. No Khain has been shown in the site plan towards south of the grove of Mana. However, R. D. Yadav, S. I. (P. W. 3), who was the leader of party No. 3, claimed that his party took position towards south in the Aar of Khain. THIS statement is thus contradicted by the site plan prepared by the Investigating Officer, which is factual observation. No other Aar has been stated by him in his testimony for hiding of his party. Then it is also to be noted that Sipahilal Pradhan (P. W. 1) tes tified in his cross- examination in para 18 that near about the grove, there are no bushes and that where the party had taken position, there also no bushes were present but only Mend was present. It does not appear that the spot position was such that the three parties could conveniently hide themselves at the places claimed so as to avoid detection by the dacoits when they came to assemble in the grove at the time when these parties were at their respective positions as claimed by the prosecution. On the prosecution evidence, it was a dark night. Ram Narain (P. W 2) claimed that he could not see the dacoits coming due to the nigh being dark. But even then Sipahi Lal (P. W. 1) and R. D. Yadav S. I. (P. W. 3) both testified to the coming of seven dacoits and their sitting in the grove. 16. In the site plan prepared by the Investigating Officer, the grove of Mana has been shown in the centre and to the north and east of it, there was wheat field of Mana and to the south-west of the grove was shown the wheat field of Chhultan. Then to the south-east of the grove was shown wheat field of Chhuttan. To the south-west of the grove was shown the vacant field of Chhuttan. To the north of agricultural plot of Mana Yadav, there was shown open land and then there was the Khain followed by User. To the west of the agriculture plot, situate on the west of the grove, there was a Noli running from north to south, Khain has been shown in it only towards south and not at the location where party No. 2 is claimed to have been posted. Regarding the party No. 3 led by R. D. Yadav, S. I. , (P. W. 3) there was not even a semblance of a hiding place. It is difficult to believe that if (he bad-charac ters would have assembled in the grove, they would fail to notice the presence of the three parties posted by the Station Officer as claimed by the prosecution. 17. It has come in the evidence of Sipahi Lal (P. W. 1) that the grove of Mana was 20-25 paces from east to west and 20 paces from north to south. According 10 R. D. Yadav S. I. (P. W. 3), the grove was 50-60 paces in length and width Sipahi Lal (P. W. 1) claimed that the dacoits were sit ting at a distance of 30-35 paces from the western Mend of the grove. At the same time he has claimed that they were inside the grove. Nothing revolves on the exact count. The point of importance is that according to the site plan the distance of each party from the grove was 42 paces. Sipahilal (P. W 1) has stated that his party was at a distance 50-60 paces from the place of assembly of dacoits. 18. Now Sipahi Lal (P. W 1) testified to the retorts by the dacoits. He stated that one dacoit said, "manawa Ke Pradhan Ke Yahan Mai Achchha Milega, Mukhbir Abhi Nahi Aaya Hai". Main Pradhan Ji Ko Ashchhi Tarah Janta Hun. Mai Achchha Milega. Bara Aadami Hai, Mukhbir Abhai Nahi Aaya Hai, that an other dacoit said "main Pradhan Ji Ko Achchhi Tarah Se Janta Hun. Mai Achchha Milega. Chalo Ham Log Chale. Entzar Karne Ki Jarurat Nahi Hai. " Ram Narain (P. W. 2) also tes tified to the retorts. He stated that they were conversing "bhidwai Abhai Tak Nahi Aaya". Then he further testified: "unme Se Ek Sola Ki Bhediya Yadi Nahi Aaya To Kaya Dacoity Nahi Par Sakati. Mujhe Pata Hai. Main Janta Hoon. Mewa Lal Maidar Aadmi Hai. Achchha Mai Milega. Chalo Mujhe Ghar Ka Pata Hai. Dacoity Dalne Sab Log Chalo. " According to R. D. Yadav S. I. (D. W 3) the retorts of the dacoits, which he over heard were as follows:- "bhediya Nahi Aaya Hai. Pradhan Maldar Aadami Hai, License Banduk Uske Pas Hai, Chalo Loot Liya Jawe. " 19. The object of the narrating the retorts testified to by the three witnesses is not to point out the discrepancies between them on this point. For such discrepancies might be ascribed to the difference in there collection and reproduction of the con tents. The point of importance is that these witnesses claimed to have heard so clearly the conversation allegedly going on be tween the bad characters, who arc said to be assembled at that hour of night for the express purpose of preparing to commit dacoity at the house of a particular person. Sipahi Lal (P. W. 1) who gave a detailed account of conversation, stated in his cross- examination in para 20 "jahan Par Main Chhipa Tha Wahan Sc Dakuon Ki Aawaj Saf Saf Nahi Sunai Par Rahi The Parantu Kuchh Aawaj Sunai Parti Thi. " R. D. Yadav S. I. (P. W. 3) stated that he had heard the conversations amongst the bad characters after all of them, had collected and not before it; that when all of them had collected then only conversation had started. He claimed "bat Chit Saf-Saf Sunai Par Rahi The. " Here, it will be useful to refer to a learned single Judge authority in the case of Karam Singh v. State of U. P. , rendered by Hon'ble Mr. Justice O. P. Meh-rotra, as he then was, reported in 1988 (25) ACC 352, in which case also the police had come with a stereo- typed story as to this case that on receiving secret information that a gang of dacoils would commit dacoity at the house of a person and that the gang would assemble in the grove of another person and the usual story of taking the witnesses making the parties etc. etc. , and the conversation imputed to one of the dacoits was that it was now time that they should go to commit the dacoity at the house of Surya Bux Singh and the case was that thereupon they were chal lenged and had been overpowered and some of them were arrested and recoveries of various arms were made from their pos session. In that case, the attention of the learned Single Judge was drawn to certain decisions of this Court in which it was observed that it was difficult to believe that the dacoits would unnecessarily enter into a conversation as to where they had to commit dacoity and that too in such a loud voice that the police party hiding ai a considerable distance would be able to hear them and that even if they discussed the details of what they have to do and also take the name of the person where the dacoity was to be committed, they would discuss such matters in whispers. The learned single Judge had accepted the same. I also endorse the said observations which are sound. In the case of Raghubir v. Slate of U. P reported in 1995 (32) All Crl Cases 216 : 1996 All LJ 551 the Court observed that the proccculion story is not acceptable that the conversation is going on amongst dacoits and it could be heard by the police parlies. There I he prosecu tion case was that the accused were at a distance of 50 to 60yards from the raiding parties. In the case of Babu Lal v. State of U. P. , Criminal Appeal No. 339x of 1979 decided on 27-7-1991 : (Reported in 1999 All LJ 2315) by me, one police party was situated at 76 paces; the other at 45 paces and the third one at 73 paces from the alleged place of assembly of dacoits. The evidence about the hearing of conversa tion amongst the dacoits, as given by the prosecution witnesses, was discarded ob serving that it is not at all convincing keep ng in view the distance between the raid ing parties and the alleged dacoits. 20. In another case of Puttu Singh v. State of U. P. , Criminal Appeal No. 1620 of 1980 decided by me on 27-7-1999 : (Reported in 1999 (25) All Cri R 1741) the distance of the three raiding parties from the place of assembly of dacoits was said to be 25,25 and 30 paces respectively and the testimony of the witnesses about the retorts imputed to the dacoits was dis carded observing that in ordinary course, these witnesses were unlikely to be able to over-hear the conversation made by the culprits amongst themselves as claimed by them. If these parties were positioned at the point as given in the site plan, prepared by the Investigating Officer. In the present case also, it is difficult to appeal the testimony of these prosecution witnesses that they have over-heard the conversation amongst the bad characters as reproduced by them. 21. Now, in this case it has nowhere been claimed by the prosecution that a single shot was fired from the side of dacoits or from the side of any of the raiding parties in the entries transaction. As a matter of fact, the prosecution story was that Munna Lal and Rajendra accused, who were said to be carrying fire- arms and cartridges were claimed by the prosecu tion to be carrying these arms and am munitions in their Jholas and not in their hands and according to the prosecution, these two accused were arrested with the arms and ammunitions in their Jholas and nothing in their hands. THIS is rather un likely if bad characters had actually as sembled and were preparing to commit dacoily, then they would keep their arms and ammunitions inside their Jholas or did not take out the same even on being challenged by the Station Officer as claimed by them. Then the recovery memo, which is said to be attested by all the three prosecution witnesses of the raid aforesaid, states "ek Dam Dabish Dekar Nimnlikhit Panch Aadmiyon (Ko) Lathiyakar Ghatnaslhal Par Hi Pakar Liya. " It means that they were beaten with lathis in the process of arrest. The G. D. about the return of the police party with the arrested accused does not record any injury of any of the arrested accused-per sons received by them in the transaction of raid, arrest and recovery. Sipahilal (P. W. 1) did not testify in his examination-in-chief of beating of the accused-persons what soever. In his cross-examination, he tes tified in para 9 "badmasho Ko Mara Pita Nahi Gaya Tha. " 22. Ram Narain (P. W. 2) in his ex amination-in-chief did not say that any force was used against any of the accused-persons while effecting their arrest. In his cross-examination, he stated that the ac cused- persons were arrested but could not tell whether any one received injury or not "main Nahi Bata Sakta Ki Kisi Ko Chot Aayi Thi Ya Nahi". Sri R. D. Yadav S. I. (P. W. 3) in his examination-in-chief did not testify to any use of force by any police party or by the witnesses in effecting their arrest. In his cross- examination, he stated that no fire had been made at the spot, that the bad characters did not try to make any fire and that no accused was beaten. "koi Fire Nahi Huwa Badmashon Ne Koi Koshish Nahi Ki Fire Karne Ki. . . . Mara Pita Nahi Tha. " 23. All the above noted facts and cir cumstances, cast a grave shadow of doubt over the prosecution case. A gang of dacoits preparing to commit dacoity was unlikely to submit without contest. 24. There are other infirmities and suspicious features that surround the proseeution case and prosecution evidence. 25. R. D. Yadav S. I. (P. W. 3) has for mally proved the recovery memo. How ever, he did not claim to have made or attested in the preparation of any other memo at the spot by the S. O. or arty other person, through in the ordinary course, if two VL. P. shots had actually been fired, as mentioned in the recovery memo, and as testified to by him (R. D. Yadav S. I. P. W. 3) and as claimed by other witnesses ex amined at the trial, the empty cartridges of those two VL. P. shots would have "been collected, sealed and taken to the police station as it would also be a case property, but this witness did not testify to the lacing of any such empty cartridges from the spot by the Station Officer or by himself or any other-police officer present and to their sealing and the preparation of a separate memo of the same and also lodging of the sealed bundles about these empty VL. P. cartridges at the police station. The return G. D. entry No. 4 of 3. 30 a. m. on 4-2- 1981 does mention about the filing of sealed bundle of VL. P. cartridges but did not mention about the filing of the recovery memo. The bundle containing these two empty cartridges as mentioned in the G. D. entry of return of the police force to the police station was not produced at the trial. All these circumstances further lend to show that in all probability the transac tion was a paper transact ion. 26. Here, it may be mentioned that the public witness Ram Narain (P. W. 2) claimed in his testimony that as many as three documents were scribed in his presence at the spot but when he was shown the recovery memo, he said that it is the document prepared at the spot. Ac tually, the recovery memo consisted of three sheets and so he may be taken to mean that according to him in his presence, only this recovery memo was prepared at the spot and nothing else. As against this, R. D. Yadav S. I. (P. W. 3) tes tified in his cross-examination that about 7 documents were scribed at the spot. How ever, no other documents have been placed on record except the aforesaid recovery memo which according to him were further prepared at the scene of arrest and recovery and signed or attested by the public witnesses who were said to have been present at the time of occurrence. Here, it may be also noted that Ram Narain (P. W. 2) stated in his cross-examination that the memo, which was prepared, was not read over and he did not know what was written in the memo. All this also casts a grave shadow of doubt over the prosecution story. 27. The G. D. entries of 4. 00 p. m. and 8 p. m. dated 3-2-81 aforesaid and the G. D. entry of 3. 30 a. m. of 4- 2-81 (about the return of the police party at the police station, lodging of the accused and recovered properly at the police station), were not brought on record while the ar resting officer R. D. Yadav S. I. (P. W. 3) was in the witness box and so a valuable oppor tunity to the defence for cross-examina tion of this witness with reference to this document was denied to the defence. 28. Another feature in this case is that the investigation in this case has been made by S. K. Jaivir Singh posted at the police station itself in the days of occur rence and is subordinate to Sri G. S. Verma, the then Station Officer of the Police Sta tion who was the architect of the raid. Such a situation came before the High Court in an earlier case Raghubir v. State of U. P. (supra ). In that case also as in the present case, the S. H. O. of the Police Station was architect of the raid and the investigation was made by Netrapal Singh S. I. and the learned single Judge observed as follows (at page 553 of All LJ):- "the most glaring feature of the case is that the investigation in this case has not been fair. Sri Verma was the highest police officer at the Police Station. He was the S. H. O. of that P. S. Sri Geetam Singh, l. O. was his subordinate. It was under the direction of Sri Verma that inves tigation was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetam Singh would do justice to this case. Being subordinate to Sri Verma, he was not in a position to come to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding the acts of senior officer should not be done by junior officer. " 29. It was elicited in this case from R. D. Yadav S. I. (P. W. 3) in his cross-examination that the then Station Officer of the Police Station was reverted to the police lines. He, no doubt, claimed that this rever sion was not given on account of the present case. Be as it may, the overall impact of the circumstances discussed above, is that the prosecution story in this case about the raid, arrest and recovery is highly doubtful. 30. In this case, the accused-persons have claimed false implication. Accused-appellant Ram Kishan claimed that a dis pute of house is going between him and one Hardeo and that he had been falsely implicated at the instance of Hardeo who happened to be the village Chaukidar. R. D. Yadav S. I. (P. W. 3) denied the plea of false implication but pleaded ignorance to the stand about the quarrel between this accused-appellant and Hardeo. 31. Lajja Ram accused-appellant claimed that he had enmity with Sonelal and Natthu Lal on account of the litiga tion of agricultural land and they have got him arrested from his house and falsely implicated. He also examined Mewa Lal as D. W. 1, Up- Pradhan of village Puttha on the point of this enmity. However, it is necessary to dilate on the same. 32. For the reasons aforesaid, the ap peal is allowed, conviction of the accused-appellants Ram Kishan and Lajja Ram for the offences under Sections 399/402,1pc is set aside and they are acquitted of the same. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties are discharged. 33. Let a copy of this judgment be sent to the Sessions Judge, concerned for information and compliance in the record. Appeal allowed. .