S.C. Agarwal, J.@mdashThis Criminal Appeal is directed against the judgment and order dated 9.2.1982 passed by IV Additional Sessions Judge, Hamirpur in Sessions Trial No. 278 of 1980 whereby the appellants Ashiq Ali, Om Prakash and one Tutiyan were held guilty u/s 25(1)(a) of the Arms Act and were sentenced to undergo six months R.I. The appellants were, however, acquitted for the offences under Sections 399, 402 I.P.C.
2. Incident took place on 14.2.1980 at 11:40 p.m. within the area of Village Baswari, P.S. Muskara, District Hamirpur. F.I.R. was lodged on 15.2.1980 at 2:45 a.m. by Hari Das Singh Niranjan, Station Officer, P.S. Muskara.
3. In brief, the prosecution story is that on 14.2.1980 at about 9:15 p.m., Station Officer Hari Das Singh Niranjan received information that a gang of dacoits was to assemble in the field of Baddu Lodhi near Village Baswari at about 11:00 p.m. to commit dacoity in the house of Nand Ram Lodhi. The Station Officer took the necessary force with him and proceeded towards Village Baswari and reached Junior High School, Baswari at about 10:00 p.m. Two Constables Bhola Nath and Hari Ram were sent to the Village Baswari to call independent witnesses. Police force and witnesses were divided in three parties and took up position near the place of occurrence. At about 11:00 p.m., five persons came from eastern side and started talking and making plan for the commission of dacoity in the house of Nand Ram Lodhi. After having been satisfied that the miscreants have assembled and made preparations and planning to commit dacoity in the house of Nand Ram Lodhi, the police parties challenged them. Three persons namely Ashiq Ali, Tutiyan and Om Prakash were arrested on spot while two others managed to escape. On search, one country made gun and four live cartridges were recovered from the possession of Ashiq Ali, one country made pistol and three live cartridges each were recovered from the possession of Tutiyan and Om Prakash. The accused had no license to possess these illicit weapons and ammunitions. Recovery memo was prepared on spot, on the basis of which F.I.R. was lodged and crime Nos. 23, 24, 25, & 26 of 1980 were registered under Sections 399, 402 I.P.C. and 25 Arms Act. Investigation was handed over to Lallu Singh, Station Officer, P.S. Kharela, who examined witnesses, prepared site plan, obtained sanctions for prosecution from the District Magistrate and submitted the charge-sheets against the accused.
4. Charge was framed under Sections 399, 402 I.P.C. and 25(1)(a) of the Arms Act against the appellants. The appellants denied the charge and claimed to be tried. In their statements recorded u/s 313 Cr.P.C. the appellants stated that they have been falsely implicated by the police. They were not arrested on spot, but were picked up from their houses and false recovery was shown.
5. Prosecution examined five witnesses namely, S.I. Lallu Singh (P.W.1), Constable Ved Prakash (P.W.2), Visarjan Singh (P.W.3), Shambhu Dayal (P.W.4) and S.O. Hari Das Singh Niranjan (P.W.5). P.W. 2 and P.W.5 are the police witnesses of arrest and recovery. P.W.3 and P.W.4 are the independent witnesses and P.W.1 is the investigating officer. The defence did not adduce any oral or documentary evidence.
6. Learned Sessions Judge disbelieved the prosecution story regarding assembly of dacoits for the purpose of planning and committing dacoity at the house of Nand Ram Lodhi and acquitted all the three accused for the offences under Sections 399, 402 I.P.C. However, the learned Sessions Judge found the charge u/s 25(1)(a) of the Arms Act proved against all the three accused and convicted and sentenced each of them to R.I. for six months. Hence this Appeal by appellants Ashiq Ali and Om Prakash. Third accused Tutiyan does not appear to have preferred any Appeal.
7. By order dated 20.8.2008, Sri Raghuraj Kishore was appointed as Amicus Curiae for the appellants.
8. I have heard Sri Raghuraj Kishore, learned Amicus Curiae for the appellants, learned A.G.A. for the State and have gone through the records.
9. Learned Amicus Curiae submitted that once the prosecution story regarding assembly for the purpose of committing dacoity was disbelieved by the Sessions Judge, it was not justified to rely the same evidence in respect of recovery of weapons from the possession of the appellants. It was submitted that the police witnesses examined during trial could not identify the appellants in Court and the independent witnesses examined by the prosecution were arms licensees and were under the pressure of the police and, therefore, their testimony should not have been relied upon.
10. Per contra, learned A.G.A. submitted that the appellants were acquitted under Sections 399, 402 I.P.C. on the ground that the police party and the witnesses could not have heard the talks of the dacoits from a distance of 80 yards and, therefore, they were acquitted under Sections 399, 402 I.P.C. However, the appellants were arrested on spot and illicit weapons were recovered from their possession, therefore, their conviction u/s 25(1)(a) of the Arms Act is justified.
11. P.W.5 - S.O. Hari Das Singh Niranjan is the main witness and was posted as Station Officer of P.S. Muskara. He was the leader of the police party. During cross-examination, he boasted that he can recognize all the accused. When he was asked to identify the accused, he correctly identified Tutiyan, but wrongly identified Ashiq Ali and Om Prakash. In other words, it can be said that this witness failed to correctly identify Ashiq Ali and Om Prakash.
12. Similarly, P.W.2 - Constable Ved Prakash stated in the cross-examination that he can not identify the accused persons by their names, as sufficient time has elapsed. Thus, P.W.2 and P.W.5 failed to identify or correctly identify the appellants Ashiq Ali and Om Prakash.
13. The independent witness Visarjan Singh (P.W.3) was called at the Junior High School, Baswari by P.W.5 through a Constable. He stated that he reached at 10:30 p.m. at the school, but did not find any jeep, tonga or cycle at the school. Whereas, P.W.2 had deposed that they had gone to Baswari by cycles and had kept the cycles at the school. P.W.3, however, did not find any cycle at the school. P.W.4 Shambhu Dayal stated about the recovery, but did not name Om Prakash.
14. The prosecution story regarding assembly of dacoits for the purpose of planning and preparation for committing dacoity has been disbelieved by the Sessions Judge. In these circumstances, the story regarding arrest and recovery from the possession of the appellants should not have been relied upon since both the police witnesses failed to correctly identify them in Court. The appellants could not have been convicted u/s 25 Arms Act simply on the basis of recovery memo.
15. A perusal of sanctions for prosecution, exhibit ka-6 and exhibit ka-8, accorded by District Magistrate, Hamirpur against the appellants Ashiq Ali and Om Prakash, reveal that only case diary, site plan, recovery memo, charge-sheet and other papers were produced before the District Magistrate. Sanction orders do not indicate that recovered weapons were produced before the District Magistrate. It was mandatory for the District Magistrate to inspect the weapons and ammunitions recovered by the police before according sanction for prosecution. The appellants are also entitled to be acquitted on this ground also.
16. Besides, there is no evidence on record to show that weapons allegedly recovered from the possession of the appellants were in working condition.
17. Having been acquitted under Sections 399, 402 I.P.C., the conviction of the appellants u/s 25(1)(a) of the Arms Act can not be said to be justified, as both the police witnesses including the leader of the party failed to identify the appellants in Court. The District Magistrate did not inspect the weapons and ammunitions recovered by the police before granting sanction for prosecution. In these circumstances, the conviction of the appellants u/s 25(1)(a) of the Arms Act can not be sustained and is liable to be set-aside and the appellants are entitled to the benefit of doubt.
18. The judgment of conviction recorded by learned Sessions Judge has no legs to stand. The judgment and order dated 9.2.1982 passed by IV Additional Sessions Judge, Hamirpur in Sessions Trial No. 278 of 1980 is set-aside.
19. Appeal is accordingly allowed.
20. The appellants Ashiq Ali and Om Prakash are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
21. Let a copy of this judgment along with the trial court record be sent to the Court concerned for necessary compliance.
22. Office is directed to pay a sum of Rs. 3000/- as fees to Sri Raghuraj Kishore, learned Amicus Curiae.
