1. Heard. The appellant along with one Raj Singh were convicted under Ss. 307, 353/34 and S. 186/34 I.P.C. and also u/s 27 of the Arms Act. They were sentenced to 7 years'' rigorous imprisonment u/s 307 I.P.C. and to one year''s rigorous imprisonment u/s 353 I.P.C. They were further sentenced to 2 months'' rigorous imprisonment u/s 186 and to one year''s rigorous imprisonment u/s 27 of the Arms Act, and the sentences were to run concurrently.
2. The facts leading to the prosecution and conviction of the appellant and his accomplice are that on receipt of a secret information Inspector Harbans Singh, PW-5 while he was on patrol duty along with the other prosecution witnesses and was near Lokesh Cinema he was informed that the appellant and one Niranjan Dacoits would be coming from Rohtak side accompanied by other members of their gang and enter Delhi. Consequently the alleged raid was organized and an ambush laid near Pulia No. 22/1 by the side of Mundka Canal. At about 8.45 p.m. on 1-1-1985 they received a signal as a result of which the police van was brought to the middle of the road to block the passage. Immediately thereafter they noticed Raj Rathi on a motor cycle accompanied by Jagdish and one more companion who managed to escape. One Niranjan also came along with persons on another motor cycle. Both motor cycles stopped at a distance of 15 feet from the police vehicle. It is also alleged that Raj Rathi thereafter fired at Inspector Harbans Singh from his revolver, marked Ex. P-1 and Jagdish appellant also fired at the police party from his country made pistol Ex. P-4. The prosecution story further goes to state that both of them were over-powered and the fire arms seized from them. The fire arm Ex. P-1 seized from Raj Rathi was found to be containing one spent and three live cartridges in its chamber and similarly the fire arm seized from Jagdish also yielded one spent and three live cartridges. Thereafter the seizure of these revolvers was made on the spot and a case registered.
3. The stand of the appellant as also his alleged accomplice at trial is that of the denial. According to them, they had been in fact, arrested and taken into custody days before the alleged date of the incident.
4. At trial the prosecution in support of its case has relied upon the evidence of Harbans Singh, PW-5, Constable Ghanshyam, PW-3, Head Constable Om Prakash PW-4, S.I. Bhim Singh, PW-6 and Inspector Shiv Narain, PW-7. It is not necessary for me to refer to their testimony. Admittedly, the entire set of witnesses have lent complete support to the prosecution story. The appellant and his co-accused have been afforded sufficient opportunity to cross-examine and they have done so.
5. The trial court dismissed all the contentions of the appellant and held that even though the entire set of witnesses in the case are police officials, their evidence is trust-worthy and must be relied upon. It was noticed by the trial court that the C.F.S.L. made a report in respect of one seized fire arm, .38 Revolver that it is incapable of firing a shot in the condition it was received, until its main spring is replaced. The learned defense Counsel had on this basis urged before trial court that this fire arm was planted and the prosecution story was totally groundless. The trial court answered the objection by reference to another document from C.F.S.L. marked Ex. P-B, in which the opinion was given that it is possible that the revolver might have gone out of order immediately after its last firing and as a result of this firing. The trial court as such believed the prosecution case and the evidence and passed the conviction and sentence, now under appeal.
6. Mr. Bhandari, learned counsel for the appellant contends that the story as put forth by the prosecution is most improbable, un-natural and unbelievable. He contends that only police can manage to stage such drammas. Mr. Sharma on the other hand states that there is no rule that the testimony of police officers should be approached with dis-trust, or suspicion and that there are occasions when in the circumstances of a particular case only police witnesses may be available. He further contends that the accused have been afforded sufficient opportunity to cross-examine and there is nothing in the evidence of all these police officers which would warrant adverse conclusion.
7. Having given my careful consideration to the contentions and counter contentions I am of the view that the matter is not as simple as Mr. Sharma contends. This is a matter of tremendous importance. The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct.
Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this Explanation is now being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so. One cannot, however, rule out the situations in which under the pressure of circumstances it may not be possible to involve the public witnesses, but then this is a matter which will have to be gone into under the particular circumstance of each case.
8. When arguments were initiated by Mr. Bhandari my first impression was that even though the only witnesses supporting the prosecution case are the police witnesses, there is no reason to disbelieve them. But on a further progress of the arguments I felt a little different, for substantial reasons. Now in this case the court is told that the appellant along with the co-convict Rathi were armed with two arms and both fired at the police party after they blocked the road and after the motor cycles of the convicts came to a stop at a distance of 15 feet on seeing the police party. The court is told that firing was resorted to by the appellant and his co-accused. Normally speaking, if the appellant and his co-accused were really known dacoits and they were attempting to enter Delhi, they would turn back and escape on the police ambush. There is no reason for them to resort to firing when there has been no firing from the side of the police. It is not possible to believe that after firing two shots from their arms they would submit, while those who were accompanying them and had no arms are said to have escaped.
9. Apart from this there is one more fact which cuts at the roots of the prosecution case and that is that the fire arm Ex. P-1 was found by the C.F.S.L. to be unworkable. The report clearly says that unless its main spring is replaced it is incapable of firing a shot. Indeed, C.F.S.L. has also reported that this may have gone out of order after firing the shot but this opinion is a mere surmise and the court cannot assume on the basis of this opinion that the fire arm went out of order after firing this shot. The least that can be said is that this opinion cannot be used to the detriment of the accused. The C.F.S.L. has also opined that there was burnt product of smokeless powder present in the barrel and it has been fired through, but it has expressed its inability to opine when the last shot was fired. If the shot had been fired on the 1st January, it should not have been difficult for the C.F.S.L. to determine when the last shot was fired. Gun powder, smoke as a matter of fact is bound to be there, if not cleaned and if fired through at any stage, but that does not show that it was fired through on the date of incident, as suggested by the prosecution. It is clear, Therefore, that one of the fire arms Ex. P-1 was incapable of being used and could not be used by accused Rathi as is claimed by the prosecution. If that view is correct then I fail to understand as to how the prosecution story can be believed. That strengthens my belief and goes to support the suggestion of Mr. Bhandari that this is a clear drama staged by the police to involve the accused in a case such as this. In such a situation how then can Mr. Sharma suggest that these police officer who have come to support the prosecution case should be given the treatment of honest witnesses. They have by their act on rendered themselves in creditable .In the circumstances of this case, Therefore I am of the view that the prosecution has failed to prove the connection of the appellant and his co-accused with the commission of this crime. The appeal is allowed, the sentence and conviction passed by the court below is set aside and the appellant is acquitted.
10. Appeal allowed.
