JUDGMENT
D.P. Uniyal, J.
1. This is an appeal by Sarnam, Yudhister and Nairn Singh against their conviction under Section 395 I. P. C. Each of them has been sentenced to 7 years’ R. I. for the aforesaid offence.
2. According to the prosecution a dacoity was committed in the house of Shahzadey Singh in village Nanday Nagla, hamlet of village Radain, Police Station Kampil, on the night between the 3rd and the 4th of July 1957. It is said that nine or ten dacoits who were variously armed with guns, spears and lathis broke into the house and looted cash and valuables belonging to the complainant. The night was a dark one. When the dacoits raided the house of Shahzadey Singh, he along with his brother Mahendra Singh and Nazir Singh was sleeping at his chaupal in front of the door of the house.
He heard the sound of someone opening the chain of the door whereupon he threw a challenge. Thereupon the miscreants beat him and his brother. Finding an opportunity he ran away from the place and sent a man post-haste to village Tahla for help. Some ten or twelve persons turned up from that village shortly afterwards and fired a shot which scared the dacoits who then left the house together with the booty.
3. Shahzadey Singh went to the police station on the morning of the 4th of July 1957 and lodged a report of the occurrence there. It was mentioned therein that at the time of the incident a lantern was burning inside his house and that the dacoits were equipped with torches. It was in the light of the lantern and the torches which were being flashed by the dacoits that he and his brothers were able to identify the dacoits. The Sub-Inspector of Police Station Kampil was not present At the thana. The report of the occurrence was sent to him by the Head Constable and on receipt of the report he immediately started for the spot and reached at about 12 O’clock in the noon.
Before Sub-Inspector Babu Ram Singh entered on his investigation the complainant gave him an additional list ot looted property. During the course of the investigation Sarnam Singh appellant was arrested on the 2nd of August 1957 and a gun and an alwan were recovered from his possession. Yudhister and Naim Singh appellants were arrested on the 22nd of August 1957 but nothing incriminating was recovered from their possession.
As the dacoits had not been named in the first information report proceedings for the identification of the accused were held in the jail on the 28th of September 1957 by Sri R. N. Sinha, P. W. 1, a Magistrate of the 1st Class. After completing the investigation a charge sheet was filed against the appellants for the above offence.
4. It may be mentioned that during the course of the dacoity two of the prosecution witnesses had received injuries at the head (hand?) of the miscreants. They were Shahzadey P. W. 2 and Mahendra Singh P. W. 12. Their injuries were proved by the statement of Dr. Narain Das P. W. 3.
5. All the accused pleaded not guilty to the
charge. They expressed ignorance of the factum
of dacoity and denied their participation in it
Sarnam Singh denied the recovery of gun and alwan
from his possession. Yudhister also denied the
commission of the crime. He admitted the reco
very of Exs. 1 and 3 from his possession but added
that those things belonged to him. Nairn Singh
appellant also denied his participation in the
dacoity.
He admitted the recovery of dhoti Ex. 4 from his possession but stated that it belonged to his wife. The appellants further stated that the witnesses knew them from before and that they had been falsely implicated on account of enmity but no evidence was adduced by the appellants in support of this allegation.
6. It has been proved that Sarnam Singh appellant had been prosecuted under Section 19(f) of the Arms Act for the recovery of a gun from his possession on the 2nd of August 1957. He was, however, acquitted by the Sessions Court and it was held that the prosecution had failed to prove the recovery of the gun. In view of the acquittal of the appellant under Section 19(f) of the Arms Act this piece of evidence could not be used against him.
It appear, however, that the trial Judge did not consider the acquittal of the appellant under Section 19(f) of the Arms Act as conclusive proof of the fact that the recovery was a faked one. He was of the opinion that the acquittal of the appellant under Section 19(f) of the Arms Act did not stand in the way of the prosecution in proving the said recovery against the appellant.
7. I am astonished at the finding recorded by the learned Additional Civil and Sessions Judge on this point. The appellant having been tried for the
offence of being in possession of an unlicensed gun and it having been found by a competent court that the charge laid against him had not been satisfactorily established, the accused was entitled to rely on that finding, and it was not open to any court subsequently to ignore the order of acquittal and to proceed to hold that the finding of acquittal in favour of the appellant was not correct. This in my opinion would be against the spirit of Article 22 of the Constitution which enjoins that no person shall be prosecuted and punished for the same offence more than once.
The effect of the acquittal of the appellant was that he was held to be not guilty of being in possession of an unlicensed gun and, therefore, it follows that the evidence relating to that charge could not again be admitted against the -appellant in respect of a prosecution against him on a different charge. Section 403 (1) Cr. P. C., so far as it is material for the purpose of the present case, is in these terms:-
“A person who has once been tried by a court of competent jurisdiction for an offence and acquitted of such offence, shall, while such acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.”
The true meaning of Sub-section (1) of Section 403 Cri. P. C. is that a person who has been tried and acquitted of a charge cannot be tried for that offence over again, and further that the evidence” which formed the subject matter of that charge cannot be used against him in respect of another charge that may be subsequently levelled against him. In Pritam Singh v. State of Punjab, (S) AIR 1956 SC 415 their Lordships of the Supreme Court laid down that the acquittal of an accused in a trial under Section 19(f) Arms Act is tantamount to a finding that the prosecution had failed to establish possession of a certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under Section 19(f).
That fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him under a charge of murder. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him. I am, therefore, of the opinion that the learned Judge was in error in holding that the evidence of recovery of a gun from the possession of the appellant could be used in these proceedings.
8-9. (His Lordship discussed rest of the evidence against the appellant Sarnam Singh and other appellants and concluded.)
10. The result of the above dismission is that the charge of dacoity against the appellants has not listen satisfactorily established and, as such, they are entitled to the benefit of the doubt.
11. I accordingly allow this appeal, and sol aside the conviction and sentences of the appellants.
Sarnam Singh is in jail. He shall be released forthwith unless wanted in some other matter. Yudhister and Naim Singh are on bail. They need not surrender. Their bail bonds are discharged.
