IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1079 of 2001 (Old No. 1476/1997) Satya Prakash & Another .…. Appellants/Accused Versus State of U.P. …………… Respondent March 15, 2010 Mr. Lokendra Dobhal, Advocate for the appellants. Mr. Nandan Arya, AGA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the common judgment and order dated 11.8.1997 passed by the Additional Sessions Judge (E.C. Act), Dehradun in Sessions Trial No. 145/1994, State v. Satya Prakash & Anr. under Section 395 of Indian Penal Code, 1860 (for short, IPC), Sessions Trial No. 21/1995, State v. Sushil and Sessions Trial No. 22/1995, State v. Satya Prakash under Section 25 of The Arms Act, 1959 (for short, the Act), whereby each of the appellants/accused Satya Prakash & Sushil have been convicted under Section 395 IPC and 25 of the Act and each of the them have been sentenced to undergo R.I. for four years for the offence punishable under Section 395 IPC and R.I. for one and half years for the offence punishable under Section 25 of the Act. Both the sentences were directed to be run concurrently. 2. The case of prosecution, in brief, is that on 9.3.1994, Inspector In-charge Gopal Singh along with SI Vijay Singh (PW2), SI RS Dhama (PW3), SI Sri Dutt Mishra (PW1), Constable Kanwar Sen, Constable Vijendra Singh, Constable Sanjay Sharma, Constbale Dinesh Kumar were busy in the law and order duty and in the vehicle checking. When they reached near the Nagalia shop, then they heard the noise from the petrol pump of Virendra Dutt Hari Ram. Then the police party reached near the said petrol pump and saw that one miscreant had pointed a tamancha on the head of Navdeep Nagalia (PW4) and was asking for the key of locker, another miscreant had pointed a tamancha on a salesman and was asking for the key. 4-5 other miscreants were also asking for the key after showing the tamancha. After using the necessary force at about 6 pm, two miscreants i.e. the accused appellants were arrested by the police party and other four miscreants had run away from the place of occurrence from a scooter bearing no. UP 15A 8325 and a bullet bearing no. UMS 2222. One arrested person disclosed his name as Sushil and from his possession one pistol of 315 bore with one loaded cartridge and three live cartridges were recovered. Another arrested person disclosed his name as Satya Prakash and from his possession one 9 mm pistol with one loaded cartridge and five live cartridges were recovered. Arrested miscreants i.e. accused appellants disclosed the names of escaped miscreants as Devendra, Doctor Tomar, Rajveer and Ratan @ Buddha. Recovered articles were sealed on the spot. Specimen of seal was also prepared on the spot. A Hero Honda motorcycle bearing no. UP 07 A 2142 was also recovered from the spot. Fard of recovery Ex. Ka-1 was prepared on the spot. On the basis of the fard recovery, chick FIR Ex. Ka-8 was also prepared on the same day at 7.15 pm at PS Rishikesh. The report was lodged by the Inspector In-charge, Gopal Singh. Necessary entries were also made in the GD. Copy of GD is Ex. Ka-9. 3. The investigation of this case was entrusted to SSI Vinod Chauhan (PW5), who during the course of 2 investigation inspected the place of occurrence and prepared the site plan Ex. Ka-3. He also obtained the sanctions dated 9.5.1994 Ex. Ka-5 & Ka-7 of District Magistrate, Dehradun to prosecute the accused appellants Satya Prakash and Sushil respectively under Section 25 of the Act. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka- 2 against the accused appellants under Section 395 IPC. The I.O. also filed separate chargesheet Ex. Ka-4 against the accused appellant Satya Prakash and chargesheet Ex. Ka-6 against the accused appellant Sushil under Section 25 of the Act. 4. Learned Special Magistrate (CBI), Dehradun, after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 Cr.P.C., committed the case under Section 395 IPC on 13.12.1994 and the cases under Section 25 of the Act on 19.1.1995 to the Court of Sessions. These cases were transferred to the Additional Sessions Judge, Dehradun for disposal according to law. 5. Learned Additional Sessions Judge, Dehradun framed the charges on 10.3.1995 against the appellants/accused under Sections 395 IPC. On the same day, charge under Section 25 of the Act was also framed against each of the appellants/accused. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 SI SD Mishra, an eyewitness of recovery; PW2 SI Vijay Singh, another eyewitness of recovery; PW3 SI RS Dhama, 3 also an eyewitness of recovery; PW4 Navdeep Nagalia at whose petrol pump the alleged incident took place and PW5 SSI Vinod Chauhan, the I.O. of the case. 7. Thereafter, statements of each of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In the oral evidence, Mahaveer Singh Negi, Advocate has been examined as DW1. However, they did not produce any documentary evidence in defence. 8. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Additional Sessions Judge (E.C. Act), Dehradun vide his common judgment and order dated 11.8.1997 convicted and sentenced to each of the appellants/accused as discussed above. Against the aforesaid judgment and order dated 11.8.1997, the appellants/accused have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. To prove its case, the prosecution has examined PW1 SI SD Mishra, who has stated that on 9.3.1994 he was posted at PS Rishikesh. On that day at about 5 pm, he along with Inspector-in-Charge Gopal Singh, SI Vijay Singh (PW2), SI RS Dhama (PW3), Constable Kanwar Sen, Constable Sanjay Sharma, Constable Vijendra Singh and Constable Dinesh were busy on the duty of law and order and vehicle checking. When they reached near the Nagalia 4 petrol pump, they heard noise. Upon this they reached at the place of occurrence and saw that the accused appellant Sushil had pointed a tamancha on the head of Nagalia and another accused appellant Satya Prakash had pointed a tamancha on the head of a salesman of the petrol pump and they were asking for the keys. 4-5 other miscreants, who were the companions of the accused appellants, were waiting outside. These miscreants wanted to commit dacoity in the petrol pump. At about 6 pm, the accused appellants were arrested by the police party after using the necessary force, whereas 4-5 other miscreants successfully escaped from the spot taking the advantage of crowd assembled at the petrol pump. One arrested person disclosed his name as Sushil and from his possession one pistol of 315 bore with one loaded cartridge and three live cartridges were recovered. Another arrested person disclosed his name as Satya Prakash and from his possession one 9 mm pistol with one loaded cartridge and five live cartridges were recovered. One Hero Honda motorcycle was also recovered from the possession of the miscreants. Arrested miscreants i.e. accused appellants disclosed the names of escaped miscreants as Devendra, Doctor Tomar, Rajveer and Ratan. On the dictation of Inspector, this witness prepared the fard Ex. Ka-1 on the spot in the electric light. Recovered articles were sealed on the spot On the basis of the fard recovery, chick FIR was prepared at the police station. In his cross- examination, this witness has stated that he could not remember the time when the police party started from the police station on 9.3.1994 and further said that it was about 4 pm. He admitted that he had not signed in the GD when he left the police station. He has further stated that 50-100 people had assembled near the petrol pump. The workers of the petrol pump and the customers, who might be 50-100 in number, were making noise. Three 5 miscreants were inside the office of the petrol pump and all these three were arrested by the police party. This witness has stated that two of them were the accused appellants i.e. Satya Prakash and Sushil while he showed his inability in recalling the name of third arrested person. This witness has further shown his inability in recalling the weapons recovered from all the three arrested miscreants. This witness has further expressed his inability in recalling the time when the police party reached at the place of occurrence, the time when the police party returned to police station and the time when the accused appellants were arrested. 11. PW2 SI Vijay Singh and PW3 SI RS Dhama have corroborated the statement of PW1 SI SD Mishra. 12. PW4 Navdeep Nagalia in his examination-in-chief has stated that on 9.3.1994 at about 6 pm, he was sitting along with his manager Surendra Negi in the cabin of the petrol pump while rest of the employees were outside. All of a sudden six miscreants came at the petrol pump and two of them entered inside the cabin and demanded key of cash after pointing tamancha on him. By this time, police reached at the petrol pump. After seeing the police, miscreants started to run away from the spot and eventually fled from there. Thereafter police arrested two of them from somewhere else. Police told the names of the arrested persons as Sushil and Satya Prakash. Police did not recover any weapon from the possession of these arrested persons in his presence. At this stage of deposition, this witness was declared hostile and ADGC (Criminal) was allowed to cross-examine him. In his cross- examination also, this witness has not said anything which may support the prosecution case. In the cross- examination done by defence Counsel, this witness has 6 stated that the police had reached at the petrol pump when the miscreants had run away from there. 13. PW5 Vinod Chauhan has stated that on 9.3.1994, he was posted as SSI at PS Rishikesh. On that day, he was entrusted with the investigation of this case. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-3. He recorded the statements of the witnesses during the course of investigation and after completion of the investigation, he filed the chargsheet Ex. Ka-2 against the accused appellants under Section 395 IPC. The I.O. also filed separate chargesheet Ex. Ka-4 against the accused appellant Satya Prakash and chargesheet Ex. Ka-6 against the accused appellant Sushil under Section 25 of the Act. During the course of investigation, he obtained the sanctions Ex. Ka-5 and Ka-7 of the District Magistrate, Dehradun to prosecute the appellants/accused Satya Prakash and Sushil respectively under Section 25 of the Act. He has further stated that the chick FIR Ex. Ka-8 of this case was prepared by Constable Clerk Jayveer Singh, who had also made the necessary entries in the GD. Copy of GD is Ex. Ka-9. In the cross-examination, this witness has stated that the recovered tamanchas and cartridges were not sent for the examination of the ballistic experts. He has further stated that investigation was also conducted against those miscreants who had escaped from the place of occurrence but they could not be traced out. He has also stated that nobody was getting the fuel at the time of occurrence. He has also stated that though he recorded the statements of Manohar Lal & Ram Bharose, whose shops were situated in front of the place of occurrence but he did not show their shops in the site plan. 7 14. Thereafter, statements of each of the appellants/accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. In the oral evidence, Mahaveer Singh Negi, Advocate has been examined as DW1. However, they did not produce any documentary evidence in defence. 15. DW1 Mahaveer Singh Negi, Advocate has stated that on 9.3.1994 he was practicing in the court of Munsif Magistrate, Rishikesh. On that day, accused appellant Satya Prakash had come there at 11 am in connection with a case of his father Pyarelal and remained with him till 5 pm. At 6.30 pm, a journalist Usha Rawat telephoned him to inform that police had arrested Satya Prakash. 16. Learned Counsel for the appellant/accused argued that the prosecution has not proved the case against the appellants/accused for the offence punishable under Section 395 IPC and Section 25 of the Act beyond reasonable doubt. I find substance in the argument of the learned Counsel for the appellants/accused for the following reasons: (i) That PW4 Navdeep Nagalia, at whose petrol pump the incident is alleged to have taken place and who has also been shown to be an eyewitness of the said incident, did not support the prosecution case and was declared hostile. In his examination-in-chief, he has very categorically stated that the police did not recover any weapon from the possession of the accused appellants in his presence and that 8 the accused appellants were not arrested by the police at the place of occurrence and the police had told him that the accused appellants were arrested from somewhere else and had told their names as Satya Prakash and Sushil. Contrary to this, PW1 SI SD Mishra, PW2 SI Vijay Singh and PW3 SI RS Dhama have stated that the accused appellants were arrested at the said petrol pump when they were trying to commit dacoity after pointing the tamachas on the head of PW4 Navdeep Nagalia. This contradiction in the statement of these witnesses creates serious doubt on the prosecution story. (ii) That PW4 Navdeep Nagalia has also stated that police arrived at his petrol pump when the miscreants had left the place, which also creates reasonable doubt on the prosecution story. (iii) That a Hero Honda Motorcycle bearing no. UP 07A 2142, said to be recovered at the spot from the possession of the accused appellants, was neither claimed by the accused appellants not it was released in their favour. (iv) That 4-5 other miscreants, who allegedly fled from the spot on a scooter bearing no. UP 15A 8325 and bullet bearing no. UMS 2222 could not be traced out although as per the prosecution, their addresses were given by the accused appellants. Even these vehicles could not be recovered by the police. It is strange that when the police knew the registration numbers of the aforesaid vehicles, even then no details about their owners could be procured. It creates doubt on the whole prosecution story. 9 (v) That PW1 SD Mishra has stated that there were about 50-100 people, who had assembled at the place of occurrence. But not a single witness could be named in the recovery memo and none of them could be examined by the prosecution in support of its case. It also creates doubt on the prosecution story. (vi) That PW1 SD Mishra has also stated that three miscreants including the accused appellants were arrested on the spot when they were trying to commit dacoity. But there is no whisper about the name of the third miscreant and the action taken by the police against him. This witness has even shown his inability in recalling the particulars of weapon recovered from the possession of the accused appellants at the place of occurrence. (vii) That PW5 SSI Vinod Chauhan, the I.O. of the case, has admitted that the weapons and cartridges alleged to be recovered from the possession of the accused appellant were not sent for examination to the ballistic experts. As such, condition of the weapons alleged to be recovered from the possession of the accused appellants could not be ascertained. 17. The aforementioned reasons show that there are serious contradictions in the prosecution story, which render the whole prosecution story as a concocted one. As such, the prosecution has miserably failed to prove its case against the accused appellants beyond reasonable doubt and the appellants are entitled to get the benefit of doubt. Therefore, the impugned judgment and order dated 11.8.1997 passed by the trial court is not justified and correct and the same is liable to be set aside. 10 18. In the result, the appeal is allowed. The common judgment and order dated 11.8.1997 passed by the Additional Sessions Judge (E.C. Act), Dehradun in Sessions Trial No. 145/1994, State v. Satya Prakash & Anr. under Section 395 IPC, Sessions Trial No. 21/1995, State v. Sushil and Sessions Trial No. 22/1995, State v. Satya Prakash under Section 25 of the Act is hereby set aside. The conviction of the appellants under Section 395 IPC and Section 25 of the Act is hereby quashed and sentence awarded to each of the appellants to undergo R.I. for four years for the offence punishable under Section 395 IPC and R.I. for one and half years for the offence punishable under Section 25 of the Act is hereby set aside. Appellants are on bail. Their bail bonds are cancelled. They need not surrender unless required in any other case. 19. A copy of this judgment and order be sent to the trial court. Let the trial court record be also sent back. (Dharam Veer, J.) 15.3.2010 PRABODH 11