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A.F.R.
Court No. 45
Criminal Appeal No. 515 of 1982
Ashiq Ali & Another ......... Appellants
Versus
State of U.P. ............ Respondent
Hon'ble S.C. Agarwal, J.
This Criminal Appeal is directed against the judgment and order
dated 9.2.1982 passed by IV Additional Sessions Judge, Hamirpur in
Sessions Trial No.278 of 1980 whereby the appellants Ashiq Ali, Om
Prakash and one Tutiyan were held guilty under Section 25 (1) (a) of
the Arms Act and were sentenced to undergo six months R.I. The
appellants were, however, acquitted for the offences under Sections
399, 402 I.P.C.
Incident took place on 14.2.1980 at 11:40 p.m. within the area of
Village Baswari, P.S. Muskara, District Hamirpur. F.I.R. was lodged on
15.2.1980 at 2:45 a.m. by Hari Das Singh Niranjan, Station Officer,
P.S. Muskara.
In brief, the prosecution story is that on 14.2.1980 at about 9:15
p.m., Station Officer Hari Das Singh Niranjan received information
that a gang of dacoits was to assemble in the field of Baddu Lodhi near
Village Baswari at about 11:00 p.m. to commit dacoity in the house of
Nand Ram Lodhi. The Station Officer took the necessary force with
him and proceeded towards Village Baswari and reached Junior High
School, Baswari at about 10:00 p.m. Two Constables Bhola Nath and
Hari Ram were sent to the Village Baswari to call independent
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witnesses. Police force and witnesses were divided in three parties and
took up position near the place of occurrence. At about 11:00 p.m., five
persons came from eastern side and started talking and making plan for
the commission of dacoity in the house of Nand Ram Lodhi. After
having been satisfied that the miscreants have assembled and made
preparations and planning to commit dacoity in the house of Nand Ram
Lodhi, the police parties challenged them. Three persons namely Ashiq
Ali, Tutiyan and Om Prakash were arrested on spot while two others
managed to escape. On search, one country made gun and four live
cartridges were recovered from the possession of Ashiq Ali, one
country made pistol and three live cartridges each were recovered from
the possession of Tutiyan and Om Prakash. The accused had no license
to possess these illicit weapons and ammunitions. Recovery memo was
prepared on spot, on the basis of which F.I.R. was lodged and crime
nos.23, 24, 25, & 26 of 1980 were registered under Sections 399, 402
I.P.C. and 25 Arms Act. Investigation was handed over to Lallu Singh,
Station Officer, P.S. Kharela, who examined witnesses, prepared site
plan, obtained sanctions for prosecution from the District Magistrate
and submitted the charge-sheets against the accused.
Charge was framed under Sections 399, 402 I.P.C. and 25 (1) (a)
of the Arms Act against the appellants. The appellants denied the
charge and claimed to be tried. In their statements recorded under
Section 313 Cr.P.C. the appellants stated that they have been falsely
implicated by the police. They were not arrested on spot, but were
picked up from their houses and false recovery was shown.
Prosecution examined five witnesses namely, S.I. Lallu Singh
(P.W.1), Constable Ved Prakash (P.W.2), Visarjan Singh (P.W.3),
Shambhu Dayal (P.W.4) and S.O. Hari Das Singh Niranjan (P.W.5).
P.W. 2 and P.W.5 are the police witnesses of arrest and recovery. P.W.3
and P.W.4 are the independent witnesses and P.W.1 is the investigating
officer. The defence did not adduce any oral or documentary evidence.
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Learned Sessions Judge disbelieved the prosecution story
regarding assembly of dacoits for the purpose of planning and
committing dacoity at the house of Nand Ram Lodhi and acquitted all
the three accused for the offences under Sections 399, 402 I.P.C.
However, the learned Sessions Judge found the charge under Section
25 (1) (a) of the Arms Act proved against all the three accused and
convicted and sentenced each of them to R.I. for six months. Hence
this Appeal by appellants Ashiq Ali and Om Prakash. Third accused
Tutiyan does not appear to have preferred any Appeal.
By order dated 20.8.2008, Sri Raghuraj Kishore was appointed
as Amicus Curiae for the appellants.
I have heard Sri Raghuraj Kishore, learned Amicus Curiae for
the appellants, learned A.G.A. for the State and have gone through the
records.
Learned Amicus Curiae submitted that once the prosecution
story regarding assembly for the purpose of committing dacoity was
disbelieved by the Sessions Judge, it was not justified to rely the same
evidence in respect of recovery of weapons from the possession of the
appellants. It was submitted that the police witnesses examined during
trial could not identify the appellants in Court and the independent
witnesses examined by the prosecution were arms licensees and were
under the pressure of the police and, therefore, their testimony should
not have been relied upon.
Per contra, learned A.G.A. submitted that the appellants were
acquitted under Sections 399, 402 I.P.C. on the ground that the police
party and the witnesses could not have heard the talks of the dacoits
from a distance of 80 yards and, therefore, they were acquitted under
Sections 399, 402 I.P.C. However, the appellants were arrested on spot
and illicit weapons were recovered from their possession, therefore,
their conviction under Section 25 (1) (a) of the Arms Act is justified.
P.W.5 – S.O. Hari Das Singh Niranjan is the main witness and
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was posted as Station Officer of P.S. Muskara. He was the leader of the
police party. During cross-examination, he boasted that he can
recognize all the accused. When he was asked to identify the accused,
he correctly identified Tutiyan, but wrongly identified Ashiq Ali and
Om Prakash. In other words, it can be said that this witness failed to
correctly identify Ashiq Ali and Om Prakash.
Similarly, P.W.2 – Constable Ved Prakash stated in the cross-
examination that he can not identify the accused persons by their
names, as sufficient time has elapsed. Thus, P.W.2 and P.W.5 failed to
identify or correctly identify the appellants Ashiq Ali and Om Prakash.
The independent witness Visarjan Singh (P.W.3) was called at
the Junior High School, Baswari by P.W.5 through a Constable. He
stated that he reached at 10:30 p.m. at the school, but did not find any
jeep, tonga or cycle at the school. Whereas, P.W.2 had deposed that
they had gone to Baswari by cycles and had kept the cycles at the
school. P.W.3, however, did not find any cycle at the school. P.W.4
Shambhu Dayal stated about the recovery, but did not name Om
Prakash.
The prosecution story regarding assembly of dacoits for the
purpose of planning and preparation for committing dacoity has been
disbelieved by the Sessions Judge. In these circumstances, the story
regarding arrest and recovery from the possession of the appellants
should not have been relied upon since both the police witnesses failed
to correctly identify them in Court. The appellants could not have been
convicted under Section 25 Arms Act simply on the basis of recovery
memo.
A perusal of sanctions for prosecution, exhibit ka-6 and exhibit
ka-8, accorded by District Magistrate, Hamirpur against the appellants
Ashiq Ali and Om Prakash, reveal that only case diary, site plan,
recovery memo, charge-sheet and other papers were produced before
the District Magistrate. Sanction orders do not indicate that recovered
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weapons were produced before the District Magistrate. It was
mandatory for the District Magistrate to inspect the weapons and
ammunitions recovered by the police before according sanction for
prosecution. The appellants are also entitled to be acquitted on this
ground also.
Besides, there is no evidence on record to show that weapons
allegedly recovered from the possession of the appellants were in
working condition.
Having been acquitted under Sections 399, 402 I.P.C., the
conviction of the appellants under Section 25 (1) (a) of the Arms Act
can not be said to be justified, as both the police witnesses including
the leader of the party failed to identify the appellants in Court. The
District Magistrate did not inspect the weapons and ammunitions
recovered by the police before granting sanction for prosecution. In
these circumstances, the conviction of the appellants under Section
25 (1) (a) of the Arms Act can not be sustained and is liable to be set-
aside and the appellants are entitled to the benefit of doubt.
The judgment of conviction recorded by learned Sessions Judge
has no legs to stand. The judgment and order dated 9.2.1982 passed by
IV Additional Sessions Judge, Hamirpur in Sessions Trial No.278 of
1980 is set-aside.
Appeal is accordingly allowed.
The appellants Ashiq Ali and Om Prakash are acquitted. They
are on bail. They need not surrender. Their bail bonds are cancelled and
sureties are discharged.
Let a copy of this judgment along with the trial court record be
sent to the Court concerned for necessary compliance.
Office is directed to pay a sum of Rs.3000/- as fees to Sri
Raghuraj Kishore, learned Amicus Curiae.
Dt./- 1st July, 2010.
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