Sarju @ Ramu vs State Of U.P

3. Shrikant Mishra was the Station House Officer (SHO) of Safdarganj Police Station situate in the district of Barabanki. He and other members of the police party were on a patrolling duty. They came out of the Police Station in the night of 5th January 1989 with Constable No.56 Ram Shankar Srivastava (P.W.3) and Constable No.277 - Vidya Prasad Pandey. They reached near a village commonly known as "Baghaura" in the official jeep No. UHG 4682, which was driven by one Satyadev Ojha.

4. An informer allegedly reported to the appellants as also one Shobhalal of village Baghaura and Ramdutt @ Dutta of village Bariarpur illegally selling morphine in packets to the truck drivers and the people of the area. According to the said informer, they were said to have been sitting on the road side near the mill of one Vishwanath Kashyap from 6 O'clock in the morning. Appellant along with said Shobhalal and Ramdutt were said to 3 have been identified by the said police party to be sitting on the road side at about 6.15 a.m. They became a bit perplexed and frightened after seeing the police party. "Being assured", Shrikant Mishra, Officer-in-charge, went to Barabanki to obtain authority letter for the purpose of carrying out search and seizure. He instructed the other constables to keep an eye on them. He upon obtaining the authority letter allegedly came back from Barabanki after some time. He requested some passer-by to become witness to the seizure. They allegedly refused.

6. Appellant, however, has a different story to tell. According to him, the SHO as also the constables had an evil eye on the appellant's wife. They came to his house at about 9.00 p.m. in the night of 5/6.1.1989 while his 4 wife was serving the food to the children. He was not well. When the door of his house was knocked by a constable, his wife who examined herself as D.W.1 came out of the house and saw the Constable and the SHO. The constable was used to be called by local people as "Lala". They enquired about him. When D.W. 1 wanted to call him, the said constable said that there was no work with him but it was with her. He thereafter told the SHO that this was the same woman who goes to Chakki for grinding. On hearing that, she started going back to her house. The said constable advanced towards her. She shouted loudly. On her shouting, Sohan Lal and the appellant came. D.W. 1 was slapped by the said constable 2-3 times and thereafter the appellant was arrested. D.W.1 along with Sohan Lal and her brother-in-law went to Barabanki to the house of the Superintendent of Police by truck. The Superintendent of Police was described as `Captain Sahib". They could not meet him at that time and on being informed that he had been sleeping and the Superintendent of Police would meet them only by 7.30 in the morning. They kept sitting in front of the gate; they met the Superintendent of Police at about 8-9 O'clock in the morning. An application was given to him. Admittedly, a telegram was also sent. 5

9. The prosecution case is shrouded in mystery. Although in the First Information Report (`FIR'), it was stated that information was received from the informer, but the P.W. 1 in his deposition before the learned trial judge stated:

16. Appellant at no point of time was informed that he had a statutory right of being searched by a Gazetted Officer. The combined reading of the depositions of the prosecution witnesses are pointers to the fact that the so- called consent letters were obtained only after they had been arrested. Even in relation to preparation of consent letters, there is a glaring discrepancy. According to P.W. 3, it was SHO himself who wrote the said letters but Shrikant Mishra has different story to tell, namely, that he himself had suffered an injury on his finger and as such he had asked some other person to write the said consent letters. It is also difficult to believe that Mishra, 16 leaving the accused in the mercy of P.W. 2 and P.W.3, would go back to Barabanki to obtain letters of approval. The nature of the statements made by him before the court clearly shows that the same was manipulated.

By giving benefit of Section 33 N.D.P.S. Act to accused Shobha Lal of Prohibition (sic Probation) of Offenders Act of bond of good conduct of 2 years and 2 bails of Rs.10,000/-, Rs.10,000/- (Rupees Ten Ten Thousand only) and on filing the sureties of the same amount may be released, subject to the condition that he may give written undertaking to this effect that during this period he shall not do any act against law and shall remain of good conduct during this period and shall maintain peace. Whenever he summoned by the Court he by being present shall received the punishment, which the Court may give him."

A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case.

19. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. The appellant is in custody. He is directed to be set at liberty forthwith unless wanted in any other case.

August 07, 2009