BALI, J. - (1.) PREM Singh and Rajendra, the appellants herein were tried with five others for offences under Sections 364-A, 326, 395 and 148 and various other offences of the Indian Penal Code. The co-accused of appellants Rupa, Bahadur, Fatte, PREM Singh son of Shridhar and Sube have been acquitted. The appellants however, been convicted under Section 364-A and sentenced to undergo life imprisonment as also to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo three months imprisonment. They have also been convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for ten years as also to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo three month imprisonment. They have also been found guilty for offence under Section 395 and sentenced to undergo seven years rigorous imprisonment as also to pay fine of Rs. 500/- and in default of payment of fine, to further undergo three months imprisonment. The appellants have also been convicted for offence under Section 148 IPC to undergo one year rigorous imprisonment as also to a fine of Rs. 100/- and in default of payment of fine, to further undergo one month imprisonment vide order of conviction and sentence dated 22. 2. 2001 passed by the learned Special Judge and Sessions Judge, Karauli. Whereas, appellant Rajendra has filed appeal No. 146/2001 appellant PREM Singh has filed appeal bearing No. 243/2001 against the common impugned judgment.
(2.) THE occurrence as per prosecution version had taken place on 18. 1. 1997 at 04. 00 p. m. , whereas FIR was lodged by Bahadur Singh, Head Constable P. W. 17 on 19. 1. 1997 at 5. 40 a. m. While unfolding the prosecution version Bahadur Singh stated that the Officers had deputed nine Constables with him to safeguard the shepherds of Dang area. THEy were doing their duty with the shepherds. On 6. 12. 1996 in area of Police Station Masalpur, today at about 04. 00 p. m. , in the day shepherds Ramdeo and Sukhram were captured by dacoit Prem Singh and his companions. THEy were caught hold in the area of Vazirpur. Jagdish was sent to meet the head of the shepherds Ram Niwas at Jhajharpura and at that time Jagdish had narrated to me the incident, whereupon I alongwith Chandagi Ram, Ganpat Singh, Hari Singh, Shri Karani Singh, Shiv Narain and Chaina Ram Constables alongwith rifles went to Jhajharpura area and surrounded the decoits at about 09. 00 p. m. THEy started firing towards us with a view to kill us. THEreupon we also fired in our self defence. THE decoits then chopped of nose and ears of Ramdeo and Sukhram and ran away after beating them. People of Khidkhadi and Village Jhajharpura number 50-60 came and pounced upon us. We started beating us with stones and sticks, whereupon we fired in air in our defence. THE people of village then by surrounding us snatched our two rifles whereas Chaina Ram Constable alongwith rifle was missing. Hari Singh, Karni Singh and Shiv Narain thereafter, brought us to Dera. Because of beating I, Ganpat Singh and Chandagi Ram had received injuries on various parts of out body. During the course of trial, the prosecution proved that besides Bahadur Singh, the first informant 5-6 persons were injured in the occurrence. Ganpat Singh, Constable sustained two simple injuries with blunt weapon on his person as described in his MLC Report (Ex. P. 14 ). Constable Chaina Ram received eight injuries on his person out of which injury No. 2 which was grievous and was caused by a blunt weapon. His MLR was proved as (Ex. P. 16), whereas X-Ray Report was proved as (Ex. P. 18 ). Rest of the injuries sustained by him were simple in nature. Chandagi Ram Meghwal as per Medico Legal Report (Ex. P. 17) had received 5 injuries out of which two were grievous and caused by blunt weapon, Whereas the rest were simple. His X-Ray Report was proved as (Ex. P. 20 ). Ramdeo received six injuries as would be clear from MLR (Ex P. 23 ). One injury sustained by him was grievous and caused by sharp edged weapon. Sukh Ram as per MLR (Ex. P. 24) sustained two injuries, one was grievous and caused by sharp edged weapon. Bahadur Singh as per MLR (Ex. P. 25) had received five injuries by blunt weapon one of which was grievous in nature. Dr. Nandlal Sharma P. W. 15 proved the above mentioned medico legal reports of all the injured persons named above. He had medico legally examined them on 19. 1. 1997. Whereas, Bahadur Singh, the first informant was examined as P. W. 17. Constable Ganpat Singh was examined as P. W. 10. Constables Chaina Ram and Chandagi Ram were examined as P. W. 12 and 13 respectively. The victims of kidnapping and serious injuries of chopping off nose and ears were examined as P. W. 18 and 20 respectively. We will make a mention of witnesses and depositions made by them in the later part of the judgment while dealing with the contentions of the learned counsel appearing for the parties. When examined under Section 313 Cr. P. C. the appellants besides denying incriminating material put to them pleaded that they were innocent and had been falsely implicated. Mr. N. A. Naqvi, learned counsel appearing on behalf of appellant Rajendra in Appeal No. 146/2001 vehemently contends that the appellant has been held guilty by the learned Sessions Judge on the basis of recovery of rifles pursuant to statement made by him under Section 27 of the Indian Evidence Act. The prosecution led no evidence whatsoever to connect him with the crime. The victims of kidnapping who sustained serious injuries on ears and nose specifically stated that they had not ears and nose specifically stated that they had not named Rajendra accompanying Prem Singh decoit and others and the mention of Rajendra in their statements under Section 162 Cr. P. C. was incorrect. The recovery rifles pursuant to the statement made by the appellant Rajendra in the facts and circumstances of the present case, is a made up affair further contends the learned counsel.
(3.) WE have seriously pondered over the contentions raised by the learned counsel for the appellant and find sufficient merit in the same. Rajendra is stated to have been arrested on 19. 1. 1997 at 07. 00 p. m. as would be clear from his arrest memo. Constable Pyarelal and Constable Ram Singh are the witnesses of his arrest. His disclosure statement (Ex. P. 12) was recorded within 15 minutes from the time of his arrest at 07. 15 p. m. The appellant is said to have led the police party to the place of recovery at 08. 00 p. m. on the very same day. There is a great deal of doubt with regard to arrest of Rajendra at 07. 00 p. m. on 19. 1. 1997 itself. Whereas, Constable Pyarelal P. W. 3 stated that the Rajendra was arrested from his house at 07. 00 p. m. in the evening. Constable Ram Singh examined as P. W. 14 stated that appellant was arrested at Police Station. Investigating Officer Mr. Ram Prasad who was examined as P. W. 9 however, stated that Rajendra was arrested from the forest. Totally contradictory evidence with regard to arrest of the appellant would seriously dent the recoveries of rifles made from him. It may be recalled that all P. Ws. 3, 14, and 9 are official witnesses. If Rajendra had actually been arrested in the way and manner as suggested, there could not be such a variations in the statements made by all the prosecution witnesses named above. That apart, no endeavour was made by the I. O. Ram Prasad P. W. 9 to join independent, witnesses for effecting recovery of rifles pursuant to statement made by the appellant as required to be done under the provisions of Section 100 (4) of the Code of Criminal Procedure which is reproduced below:- S. 100. Person in charge of closed place to allow search:- Before making a search under this Chapter, upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. Still, further, the appellant is stated to have got recovered two rifles which were lying under the heap of cow dung in jungle of Jhajharpura. The place from where the recovery of two rifles was made, it appears was open to all and sundry and it can not be said that the appellant alone, would have exclusive knowledge of the rifles lying at such a place. In so far as the recovery of another rifle again pursuant to disclosure statement made by the appellant under Section 27 of the Indian Evidence Act, is concerned, it would be seen that the recovery witnesses Bharosi and Vijay Singh P. W. 5 and 7 did not support the prosecution version. Whereas, two rifles were recovered vide Memo (Ex. P. 3) on 19. 1. 1997 on the date of arrest of the appellant, one rifle is said to have been recovered from him on 21. 1. 1997 from a room of his house. The recovery of rifle on 21. 1. 1997 as mentioned above, is not supported by independent witnesses Bharosi and Vijay Singh. The testimony of I. O. alone in connection with recovery of rifle from appellant on 21. 1. 1997, in the facts and circumstances of the present case, does not inspire any confidence. We may reiterate that if the very arrest of the appellant on 19. 1. 1997 is highly doubtful, it would be wholly unsafe to place reliance upon the evidence led by the prosecution with regard to recovery of rifles. There arises a great deal of doubt with regard to involvement of Rajendra appellant in the commission of crime. Mr. Sharma, learned counsel appearing on behalf of appellant Prem Singh in Appeal No. 243/2001 contends that all the witnesses have admitted in no uncertain terms that they had not seen the appellant ever before the date of occurrence and yet, the prosecution made no efforts to get the appellant identified before a Judicial Officer. This itself, should prove fatal to the prosecution case. He further contends that there was no mention in the first information report that Jagdish has been sent with a message and a written chit that an amount of Rs. 31,000/- should be given to the accused for release of Ramdeo and Sukh Ram and even the chit (Ex. P. 28) was not got proved from any hand writing expert. ;