The Allahabad High Court has acquitted the accused arrested in 1974 with illegal weapons while planning a dacoity and canceled the sentence of one year’s rigorous imprisonment by the Additional Sessions Judge Etah after being convicted under section 25 of the Arms Act.
A Single Bench of Justice Rajendra Kumar-IV passed this order while hearing a Criminal Appeal filed by Jaswant and Another.
The criminal appeal has been filed by the convicted appellants, namely, Jaswant and Ram Prasad against the order dated 02.02.1982 passed by 1st Additional Sessions Judge, Etah in Sessions Trial convicting the accused appellants under Section 25 of the Arms Act and sentencing them for one year rigorous imprisonment.
During pendency of the criminal appeal, accused appellant no 2-Ram Prasad died and appeal was ordered to be abated by the Court vide its order dated 28.07.2022.
Now the appeal only survives in respect of accused-appellant no1-Jaswant.
The prosecution story stated giving rise to the appeal is as under:-
(i) SO Om Prakash Pandey, on 28.12.1974, started patrolling duty from the police station at 11.05 PM, he took with him SI K.D Tiwari, ASI Udai Singh, Constable Fasi Ullah Khan and five other constables. At about 01:30 AM in the night SO Om Prakash Pandey along-with other members of the police party reached near Temple of Village Berni. Just near the Temple, Panchayat Ghar was there in which there was a godown of food grains. This building has a veranda and is quite near the main road. Police force heard some human voices coming from inside the Panchayat Ghar and suspected some miscreants there. On the instruction of SO all the members of the police force took their position by the eastern wall of Panchayat Ghar to overhear the conversation of hidden persons.
One miscreant was said to commit dacoity in the house of one Ganga Prasad of Nagla Shri Kishan, as he hoped to get valuable property there. Another miscreant was putting the question how many licence holders are in the village and there might be some danger to face them. Another miscreant told that he had gone in the village and all the licence holders are out of the village so there was no danger in committing dacoity. On hearing the conversation made among the miscreants, police was convinced that miscreants were in making plans for committing dacoity.
S.O Om Prakash Pandey challenged them, calling upon them to surrender. Police party, at once pounced upon the miscreants, four out of them were apprehended inside the veranda but three companions made their good escape.
(ii) On being arrested, all the four persons disclosed their identity as Jaswant, Ram Prasad, Mool Chand and Basdeo. On being searched by the police, besides the valuable property, which was suspected to be stolen, a country-made pistol with three live cartridges were found from the possession of accused-appellant Jaswant and also one country-made pistol with three live cartridges were found from the possession of accused-appellant Ram Prasad. All the recovered articles were sealed in a cloth.
Recovery memo was also prepared by the police on the spot which was sent by all police officials on the spot. Arrested accused persons along-with sealed bundle were brought to the police where FIR was lodged by SO Om Prakash Pandey.
(iii) Matter was investigated by SI R.P Gupta (not examined) who after completion of entire formalities of investigation, got sanction from District Magistrate concerned and submitted charge sheet in the Court of competent jurisdiction.
(iv) Accused pleaded not guilty and denied the charge and claimed trial. (v) Prosecution examined as many as three witnesses, out of whom PW-3 Om Prakash Pandey is witness of fact while two others are formal witnesses.
(vi) After considering the entire evidence, statement of witnesses on record, trial Court found the accused Jaswant and Ram Prasad guilty under Section 25 of the Arms Act for having arms without licence while accused-appellant Jaswant, Ram Prasad and two others have been acquitted by the trial Court under Section 399 and 402 IPC.
Amicus Curiae for the appellant mainly submitted as under:-
(i) Incident of the case relates to the year 1974.
(ii) One tamancha and three live cartridges is said to have been recovered from the possession of accused-appellants.
(iii) At the time of occurrence only two accused Jaswant and Ram Prasad are said to have been in possession of one tamancha and three live cartridges each respectively, but none of the police party was injured.
(iv) Occurrence is said to have taken place from the public place near the road but no independent witness was made as witness or produced in the Court.
(v) Prosecution story is false, fake and concocted inspires no confidence.
(vi) There are major contradictions in the statement of witnesses. Accused-appellants are liable to be acquitted.
The Court noted that it is an admitted case of prosecution that there was no eye witness at the time of arrest recovery even though Police did not make any attempt to call the independent witness who could support the prosecution case. There were a number of Police Officers in the raiding party, when Police suspected the miscreants in Panchayat Ghar they should have arranged some witnesses in ordinary course of nature who could have stated that appellants were arrested in their presence. Explanation given by the prosecution about known persons of public witnesses does not appear to be convincing and the prosecution story suffers serious doubt.
“It appears from the record that neither the miscreants nor the police party sustained any injury. If some miscreants assemble at a Panchayat Ghar for making plan that they would commit dacoity and they think that they are sufficient to face the challenge to be made from public or police, it cannot be easily believed that they would surrender easily without any oppose or getting any injury on either side and as many as four of them were arrested on spot.
In the case, police are said to have made a challenge but no injury took place either to miscreants or to the police party while they started to run away. The miscreants were in possession of arms and had to commit dacoity. In normal course, they would have used their weapons when they are challenged and they would not have allowed their arrest so easily and, therefore, their arrest without injury being caused to them, is another infirmity in the prosecution evidence which cast serious doubt in the prosecution case.
In view of the above discussion, where there is no injury on either side and there is no public witness from the side of prosecution at the time of arrest and recovery, the prosecution case is surrounded by serious doubt, the impugned order passed by the court below suffers from legal and factual infirmity. Thus, appeal succeeds and is liable to be allowed”, the Court observed while allowing the appeal.
“The impugned order of conviction and sentence passed against the convicted appellant under Sections 25 of the Arms Act is hereby quashed. The accused appellant-Jaswant is acquitted from the charges levelled against him”, the Court ordered.