- (1.) ACCUSED Ajab Singh (since dead) Pratap Singh, Kalua and Ratia who were convicted by Sri N. B. Asthana the then IV Additional Sessions Judge, Bulandshahr vide his judgment and order dated 27-11-1979 under Sections 399 and 402, IPC and were sentenced to undergo R. I. for a period of four year under the first count and three years under the second count. ACCUSED Ajab Singh, Pratap Singh and Ratia were also convicted under Section 25 (1), Arms Act and were sentenced to undergo R. I. for a period of one year each by the aforesaid judgment have come up in appeal before this Court.
(2.) THE prosecution claimed that on 10-11-1978 at about 11. 30 p. m. near the crusher of Ganga Prasad in the jungle of Village Sathla, P. S. B. B. Nagar district Bulandshahr, the accused appellants were found making preparation for committing dacoity. On the basis of the informa tion of an informant the police of P. S. B. B. Nagar conducted raid and had arrested the accused appellants the same night. A country made gun and five live cartridges, a country made pistol and two cartridges were recovered from the possession of Ajab Singh, Pratap Singh and Ratia restrictively. A lathi was recovered from the possession of the accused Kalua. After needful trial into the matter the learned trial Judge believed the contention the prosecution. He accordingly convicted the accused ap pellants as aforesaid. Hence the appeal. It was argued by Sri Ram Babu Sharma, learned counsel for the accused appellants that the entire case was cooked up by the police against the accused appellants. I find from the record of the case that PW 4 Amar Singh was examined as an independent witness of the occurrence. To me Sri Amar Singh appears to be chance witness for the reason that on the night of occurrence he had come to his Sadhu (brother-in-law) place for the purposes of feast. It is not believable that a man who had to enjoy feast at his brother-in-law's place had accompanied the police for apprehending certain dacoity. It is important to note here that no witness of the vicinity was taken into confidence by the police. According to the case of the prosecution itself the accused appellants had assembled near the crusher of Ganga Prasad. The month of the occurrence being the month of November and it being the season for the preparation of sugar, the Police Officers could have obtained some person from the crusher of Ganga Prasad or some other nearby vicinity for witnessing the occurrence. It is important to note here that on the personal search of the accused appellants having been taken by the police, no torch was recovered from any of the accused appellants. It is not believable that a number of persons like the accused appellants who had assembled together for making preparation of com mitting dacoity during the night, would not have taken a torch with them. The absence of the recovery of a torch from the possession of the accused appellants go to prove their innocence. It was suggested on behalf of the accused appellants that Amar Singh PW 4 was a pocket witness of the police who had been giving the evidence on behalf of the police in a number of cases. Although Amar Singh had denied to have given any evidence on behalf of the police, he has admitted during the course of his cross-examination in the Court below that earlier he used to do the business of selling wine. He has admitted that in connection with a theft which was committed at the place of Sohan Jatav he was fined. He has admitted that he had given evidence against the Pt. Than Chand of village Sathla. It would thus be seen that Sri Amar Singh having been involved in the business of selling wine, was under thumb of the police who was being utilised by the police as and when required. Under the circumstances Sri Amar Singh cannot be regarded to be an independent witness. S. I. Om Veer Singh and S. I. Mahendra Singh were the police officers who were interested in keeping control over over the criminals. It appears to me that in the opinion of these two police officers the accused appellants wore under undesirable elements who deserved to be kept under control. The police, therefore, appears to have booked the accused appellants in the present case.
(3.) SINCE the intrusive evidence of the persons of the vicinity and the evidence of the recovery of source of light like torch is wanted, I am of the opinion that the learned trial Court grossly erred in convicting and sentencing the accused appellants. In the result, I find that the appeal deserve to be allowed and the accused appellants acquitted. It is directed that the accused persons shall be set at liberty forthwith if under detention and if on bail their bail bonds shall stand cancelled. Appeal allowed. .;