- (1.) LAKHA appellant, Ramesh and Uda were charged by the Addl. Sessions Judge, Kota for offences under Secs. 148, 307 and 353, IPC, while Mohan was charged for the offences under Secs. 148, 307/149 and 353, IPC. They were tried by the Addl. Sessions Judge. The Addl. Sessions Judge by his judgment dated May 30, 1981, acquitted all these persons except LAKHA who was found guilty for the offence under Sec. 307, IPC and sentence him to five years rigorous imprisonment and with a fine of Rs. 200/ -. LAKHA was further found guilty of the offence under Sec. 353, IPC and sentenced to two years rigorous imprisonment. The sentences under both these counts were ordered to run concurrently. LAKHA has come in appeal before this Court.
(2.) INVESTIGATION in the offences started with the First Information Report Ex. P/l lodged by Krishna Gopal, Station House Officer, Police Station, Chechat. It was alleged in the First Information Report that Krishna Gopal had to apprehend four proclaimed, offenders namely Ramesh, Uda, Lakha and Mohan. There were criminal cases pending against Ramesh under Sec. 302, IPC (Case No. 43/1978); against Uda Under Sec. 454/380, IPC (Case No. 57/1979); against Mohan also as co-accused with Lakha. He came to know in village Barodia that these four absconders were found in revenue village Bholu and if they are searched at that place, they may be apprehended. On receiving this information, Krishan Gopal along with Raghunath, Asstt. Sub-Inspector of Police and Karan Singh, constable, went towards the field of Bholu at the place pointed out by the informant. When they reached near a 'peepal' tree, they found the four proclaimed offenders at a distance of 10 or 12 steps in the village Bholu were Jawar crop was standing. Seeing the police party, Lakha appellant, it was alleged, came with 12-bore gun aiming the same towards the police party. Krishna Gopal and his party men saved themselves by taking position behind the "peepal" tree. The pallets from cartridges fired from 12-bore gun hit the tree. Thereafter Ramesh and Uda fired a gun Shot towards the police party, but Krishna Gopal and his assailants escaped as they were behind the "peepal" tree. On apprehending the there was going to be continuous when Krishna Gopal saw, Lakha against loading his gun, he fired a gun shot from his own 12-bore gun in his Lakha and as a defence which hit result of the same Lakha fell down. Ramesh, Uda and one unknown person managed to escape. Mohan also tried to run away, but he was caught then and there. The 12-bore deshi gun which was in the hand of Lakha had fallen down on the ground. Lakha sustained injuries on his fore head and eyes. On this basis, a case was registered at the Police Station, Chechat against the four accused tried and one another person. Initially, the investigation was undertaken by Miya Ram, Dy. Superintendent of Police, Ramganjmandi. He inspected the site and prepared memo of site-inspection Ex. P/4. He also seized the deshi 12-bore bun, 4 live cartridges and one empty under the seizure memo Ex. P/5. He then handed over the investigation to Krishna Gopal, Station House Officer. The Site Plan Ex. P/7 also bears the signatures of Krishan Gopal. he arrested Mohan and Lakha accused. Certain Photographs of the signs which have been caused to pepal tree as a result of the gun shots were also taken. Surendra Vyas arrested Uda and Ramesh after taking them in Court. He made recovery of guns on the information given by Uda and Ramesh. The deshi 12-bore gun along with one 12-bore special cartridge case and four 12bore special cartridges were sent to the State Forensic Science Laboratory for report by ballistic expert. Dr. P. S. Manocha gave his report Ex. P/38. After necessary investigation, a charge sheet was filed against the four accused persons. A report in respect of one person Kanhaiyalal was made under Sec. 169, Cr. P. C. and he was discharged. The Additional Sessions Judge, Kota to whom the case was committed, tried Lakha, Mohan, Ramesh and Uda and he convicted Lakha alone for the offences under Sections 307 and 353, IPC and acquitted rest of the accused persons. The Main question for determination in this appeal is, whether the incident took place in the manner alleged by the prosecution and whether Lakha appellant had fired gun shot aiming towards Krishna Gopal, SHO and towards the police party with an intention to murder Krishna Gopal or any of the member of the police party. According to the prosecution case, as set forth in the First Information Report, Ex. P/l, at least three gun shots were fired at the police party. The first gun shot is actually attributed to Lakha from 12-bore country made gun. It was also mentioned that Ramesh and Uda had guns in their hands and they also fired fired towards the police party. The only eye-witnesses to the incident are police people, i. e. Karan Singh (PW/2), Krishna Gopal, SHO (PW/9) and Raghunandan (PW/10) Assistant Sub-Inspector. It is an admitted fact that in the field of Bholu, Jawar to the extent of 6-7 ft. high was standing and the persons to be apprehended were in the field where the crop was growing. Although it has been attributed in the First Information Report that Uda and Ramesh had also fired gun-shots after Lakha had fired the same, but Karan Singh constable has deposed in his cross-examination that he did not see any weapon in the hands of Uda and Ramesh. He has also said that he cannot say as to who fired the shot because Jawar crop was sufficiently high. It may further be mentioned that before Krishna Gopal, SHO and the police party had started to apprehend the alleged offenders, they had made an entry in this respect in the roznamcha dated October 15,1979 at 9. 30 p. m. In this entry, which is Ex. D/1, it was mentioned by Krishna Gopal that they had started from the Police Station for arrest of Ramesh, Mohan and Uda. The name of Lakha was not mentioned in Ex. D/1. There is nothing to show that there was any warrant of arrest against Lakha. There is also nothing to show that any FIR for any offence had been lodged against Lakha or that any case against him was registered. It is pertinent to note that the prosecution produced two warrants of arrest issued by the Court of Judicial Magistrate, Ramganjmandi, which are Ex. P/13 and Ex. P/14. From these warrants of arrest, it appears that Ramesh and Uda were wanted in some other criminal case lodged in pursuance of FIR No. 66 of 1979 under Sections 307, 332 and 353, IPC and warrant of arrest had been issued against them by the Judicial Magistrate. The prosecution has not produced any document to show that there was an FIR registered at the Police Station against Mohan and Lakha and particularly Lakha or that Lakha had been declared a proclaimed offender in any case which led the police party to proceed to the field of Bholu to apprehend Lakha and arrest him. At best, Krishna Gopal might have proceeded to arrest Ramesh and Uda against whom warrants of arrest had been issued by the Judicial Magistrate. It was incumbent upon the prosecution to produce some documentary evidence to indicate that they had to arrest Lakha. Unfortunately, nothing was done by the prosecution in this direction. It is true that the ballistic expert has reported and his report is Ex. P/38 that 12-bore country made pistol had been fired, although, he could not ascertain the time of its last fire. He was also of the opinion that Cartridge case marked C/l had been fired from 12-bore country made pistol and further that the four cartridges were fire-worthy. However, there is nothing to show that this country made pistol belongs to Lakha. It appears that Lakha has been implicated for the reason that Krishna Gopal had fired a gun shot which hit Lakha and caused Injuries on his fore head and eyes. Unnecessary evidence has been led by the prosecution to put forth a case that Lakha was troubling the village people and used to demand money from them and on their failure to give him the money, he used to beat them. Apart from this, the evidence is also discrepent. It has to relevancy with the alleged apprehension and arrest of Lakha. the pertinent evidence required was that either there was some cognizable offence registered at the Police Station, Chechat against Lakha or there was a warrant of arrest against Lakha for his apprehension. It cannot, therefore, be said that Krishna Gopal did fire at Lakha believing himself to be authorised by law to do it under Sec. 46 (3) of the Code of Criminal Procedure. The possibility cannot be ruled out that there were Ramesh and Uda who might have fired a gun shot when they saw the police party and Krishna Gopal, in encounter fired, which, instead of hitting Ramesh or Uda, hit Lakha. It was not sufficient for the prosecution to establish that its case might be true, it has to establish that it was true and that it was Lakha and Lakha alone who had fired towards Krishna Gopal and his associates and none else. I am of the view that the prosecution has failed, beyond reasonable doubt to establish the offences under Secs. 307 and 353, IPC against Lakha.
(3.) BEFORE parting with this judgement, it may also be observed that when Krishna Gopal, SHO was the first informant, he should not have at all associated himself in the investigation of the case. His doing so makes the investigation stigmatic. The result is that this appeal is allowed, convictions and sentences recorded and awarded to Lakha by the Addl. Sessions Judge, Kota by his judgement dated may 30, 1981 are set aside and Lakha is acquitted of both the charges. Lakha is on bail. His personal bond and surety bonds are hereby revoked. He need not surrender. .;