Bhagat v. State of U.P (Now State of Uttarakhand)

perused the lower court record. (3) Prosecution story, in brief, is that on

09.03.1998, Station Officer Shailesh Gaur alongwith Sub Inspector Somveer Singh (PW4), Sub 3 Inspector Ompal Singh (PW1), Head Constable Girish Babu Sharma, Constable Virendra Singh, Constable Ompal Singh, Constable Saroj Kumar, Constable Kewal Singh, Constable Narendra Kumar, Informant Risalat Hussain and Yashpal Singh (PW2) proceeded in government vehicle bearing registration no. UP02-6754 in search of some accused who had committed robbery. On the way they received an information from secret informer that some miscreants are hiding in a room near culvert on Nadehi Road, with deadly weapons. On this, the police party proceeded towards the culvert on Nadehi Road at about 11.00 am., and they surrounded the miscreants, and asked them to surrender. On this miscreants fired indiscriminately at police party to kill the policemen. However, the police personnel fortunately did not suffer any injury and after using necessary force arrested four persons, out of the seven miscreants.

Rest were said to have succeeded in fleeing from the place of incident. The arrested persons disclosed their names as Bhagat (appellant no.1), Mukesh @ Ghori (appellant no.2), Subhash (appellant no. 3) and Daliram (appellant no.4). On the personal search of all the four persons arrested, from the possession 4 of accused/appellants Bhagat, Mukesh @ Ghori, and Subhash country made pistols, with cartridges were recovered and from the possession of Daliram a with blade of prohibited length was recovered. Recovery memo was prepared at the spot, and separate crime numbers were registered against the four accused under section 25 Arms Act at Police Station Jaspur. A separate crime no. 149 of 1998 was registered at said Police Station relating to offences punishable under section 147, 148, 149 and 307 of I.P.C., against the seven accused including four accused/appellants. (4) All these crimes were investigated by PW3 Sub Inspector Mohd.

Hanif Khan, who submitted charge sheet (Ex-A8) against the accused/appellants and three others for their trial in respect of offences punishable under section 147, 148, 149 and 307 of I.P.C. Separate charge sheets were filed against all the four accused/appellants Bhagat, Mukesh @ Ghori, Subhash and Daliram for their trial in respect of offence punishable under section 25 of Arms Act after obtaining sanction from the District Magistrate, Udham Singh Nagar. From the charge sheet (Ex- A8), Sessions Trial No. 56 of 1999 was registered 5 after the case was committed to the court of Sessions for trial. From the charge sheets filed under section 25 of Arms Act against the four accused/appellants Sessions Trial No. 57 of 1999, Sessions Trial No. 58 of 1999, Sessions Trial No. 59 of 199 and Sessions Trial No. 60 of 1999 were registered against the accused/appellants Bhagat, Mukesh @ Ghori, Subhash and Daliram respectively.

(5) After hearing, on 16.07.1999 learned Additional Sessions Judge, Kashipur framed charge of offences punishable under section 147, 148, 149 read with section 307 of I.P.C., against all the accused including the four accused/appellants. All of them pleaded not guilty and claimed to be tried. Separate charge were framed in respect of offence punishable under section 25 of Arms Act against each accused to which also they pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Om Pal Singh, PW2 Yash Pal Singh, PW3 Sub Inspector Mohd. Hanif Khan (Investigating Officer) and PW4 Somveer Singh. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to 6 which they alleged that the evidence adduced against them is false. However, no evidence in defence was adduced. After hearing the parties, the trial court found that though the charge cannot be proved beyond reasonable doubt against accused Sunder Singh, Raju and Vijay Pal, but the charge of offences punishable under section 148 and 307 read with section 149 of I.P.C., and one punishable under section 25 of Arms Act was found proved against each of the rest accused namely Bhagat, Mukesh @ Ghori, Subhash and Daliram.

The four were convicted accordingly. After hearing on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of one year under section 148 of I.P.C., and rigorous imprisonment for a period of three years under section 307 read with section 149 of I.P.C. Each one of them further sentenced to rigorous imprisonment for a period of one year under section 25 of Arms Act, except Daliram, who was sentenced to rigorous imprisonment for a period of six months. Aggrieved by said judgment and order dated 26.07.2000/

27.07.2000, passed by Learned Additional Sessions Judge, Kashipur, District Udham Singh Nagar, this appeal was preferred by convicts before Allahabad 7 High Court from where its received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (6) The first major point in this appeal to be noted is that it is no injury case. According to the prosecution witnesses namely PW1 Om Pal Singh, PW2 Yash Pal Singh and PW4 Somveer Singh, as many as six persons fired shots from the country made pistols at the police party, but not a single police man got injured. On its basis it is argued on behalf of the appellants that the prosecution case is a concocted one. Having gone through the statements of the prosecution witnesses considering the facts that not a single person was injured in the incident even after six persons indiscriminately fired shots at the policemen, in the opinion of this Court, the prosecution case as suggested appears to be doubtful and there is reasonable doubt as to the truthfulness that the accused/appellants made unlawful assembly and committed rioting or attempted to kill the policemen in the manner suggesting by the prosecution.

In the opinion of this Court, the trial court has erred in law in holding the accused/appellants Bhagat, Mukesh @ Ghori, 8 Subhash and Daliram guilty of charge of offences punishable under section 148 and 307/149 of I.P.C, and one punishable under section 25 of Arms Act. (7) Learned counsel for the appellants drew attention of this Court two major contradictions in the statement of the eyewitnesses and argued that the allegations that the accused/appellants were armed with deadly weapon or they committed rioting and attempted to kill the policemen are false. In this appeal, during arguments statement of PW1 Om Pal Singh and PW2 Yash Pal Singh were read out. PW1 Om Pal Singh says that the policemen and the witnesses started from Police Station on the day of incident after 7.00 p.m., but PW2 Yash Pal Singh states that they started at 5.00 pm., in the morning. Similarly PW1 Om Pal says that the policemen and the witnesses proceeded in a government vehicle from the Police Station towards place the incident, but PW2 Yash Pal Singh states that they had gone in TATA 407 vehicle.

These major contradictions further create reasonable doubt as to the truthfulness of the prosecution case. (8) It is pertinent to mention here that in the 9 present case all the witnesses are police personnel except PW2 Yashpal Singh. In his cross examination he (PW2) has stated that he did not see any one firing the shot. This further creates doubt that the accused/appellants formed unlawful assembly or committed rioting or attempted to kill the policemen. Recovery of fire arms and that a knife from the accused also appears to be doubtful. (9) In the above circumstances, having considered submissions of learned counsel for the appellants, and learned counsel for the State, this Court is of the view that trial court has erred in law in holding the accused/appellants Bhagat, Mukesh @ Ghori, Subhash and Daliram guilty of charge of offences punishable under section 148 and 307/149 of I.P.C., and one punishable under section 25 of Arms Act.

(10) Accordingly, the appeal deserves to be allowed. The same is allowed. The impugned judgment and order dated 26.07.2000/27.07.2000, passed by Learned Additional Sessions Judge, Kashipur, in Sessions Trial No. 56 of 1999, Sessions Trial No. 57 of 1999, Sessions Trial No. 58 of 1999, Sessions Trial No. 59 of 1999, Sessions Trial No. 60 10 of 1999 and Sessions Trial No. 193 of 1999 is hereby set aside, to the extent of conviction and sentence recorded against the present accused/appellants Bhagat, Mukesh @ Ghori, Subhash and Daliram. They are acquitted of the charge. The acquittal of other accused is not interfered with. The accused/appellants are on bail. They need not to surrender. Lower court record be sent back. Dt.04.12.2012 N.P (Prafulla C. Pant, J.)