Allowed

Sudhir and Others v. State of U.P.

Allahabad HC8 Aug 2018CRLA/337/2005

Case brief

AI extract

What is this about?

This court set aside the conviction and sentence in a police encounter case due to reasonable doubts arising from discrepancies in the FIR, absence of public witnesses despite the proximity of a police booth, and failure to submit recovered weapons for forensic examination, resulting in the exonerating of the appellants.

What did the court decide?

The judgment of conviction dated 22.01.2005 is set aside; the appellants are exonerated of all charges; bail bonds cancelled.

Sudhir and Others Vs State of U.P. — Writ and Judicial Review | Allahabad HC (2018)

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Reserved AFR

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Court No. - 42

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Case :- CRIMINAL APPEAL No. - 337 of 2005

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Appellant :- Sudhir And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Sushil Kumar
Counsel for Respondent :- Govt. Advocate

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Hon'ble Arvind Kumar Mishra-I,J.

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Heard Sri Sushil Kumar, learned counsel for the
appellant, learned A.G.A. for the State and perused
the record.

¶8

By way of instant criminal appeal, challenge
has been made to the validity and sustainability of
the judgment and order dated 22.01.2005 passed by
Additional Sessions Judge, court no.7, Aligarh in
Sessions Trial No.1110 of 2000, (State Vs. Binu @
Vinai and others), police station- Gabhana,
District- Aligarh, whereby the appellants Binu @
Vinai, Lakhan @ Lakkhi, Sudhir and Subhash each
have been sentenced to 5 years R.I., coupled with
fine Rs.5,000/- with default stipulation for one
year additional simple imprisonment- under Section
307/149 IPC. Appellants Binu @ Vinai and Lakhan @
Lakkhi have been further sentenced to 1 year R.I.,
coupled with fine of Rs.1,000/- with default
stipulation for one month simple imprisonment-
under Section 25 Arms Act. All the sentences have
been directed to run concurrently.

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Relevant facts for adjudication of this appeal
as gathered from record appear to be that it is a
case of police encounter. Facts of this case appear
to be that first information report was lodged by

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Bhupendra Kumar Sharma, S.O. Police Station-
Gabhana on 18.4.1999 at 9.30 P.M., which shows that
informant himself along with S.O. V.K. Sharma, S.I.
Atar Singh, S.I. B.P. Singh, Constable Mahipal,
Constable Awadh Kishore, Constable Anil Kumar,
Constable Ratnesh Kumar departed from the police
station on the Government Jeep UPC 81B- 6114 for
investigating the case at rapat no.30. They were
busy in patrolling and checking of vehicls. The
patrolling was on and the police party was moving
towards Aligarh. When they reached in the vicinity
of village- Kanhoi, they received tip off
information that some miscreants are hiding and
are planning to commit offence in front of the road
leading to Ogar Road, behind the trees situated on
the southern side of GT Road. The police party
proceeded towards the spot and apprehended three
miscreants on the spot in the torch light and
overpowered them. All the miscreants were taken
into custody at 9.30 P.M. Search was made and
country-made gun .315 bore was recovered from the
possession of Binu @ Vinai s/o Manohar Singh
Raghav. Similarly, the another accused- Lakhan
Singh @ Lakkhi- was also searched and one country-
made gun .12 bore was also recovered from them.
Besides, two live cartridges were also recovered
from their person. Third accused Mukesh was also
apprehended from the spot and a knife was recovered
from his possession. Accused Sudhir s/o Surendra
Singh and Subhash s/o Bhoodev fled away from the
scene in the darkness and could not be traced out.
However, they were identified by the police
personnels in the torch light.

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All the arrested accused (Binu @ Vinai, Lakhan
@ Lakkhi and Mukesh) were taken into custody under
Sections 147, 148, 307/149 IPC and accused Binu @
Vinai, Lakhn @ Lakkhi were further booked for
offence under Section 25 Arms Act. The memo of
arrest was prepared on the spot and the recovered
weapons were kept under seal in separate packets.
The arrest and recovery memo is Exhibit Ka-1. The
police party came to the police station along with
the accused.

¶14

Consequently four cases were registered at
Police Station- Gabhana on 18.4.1999 at 11.30 P.M.
in Case Crime Nos.62216990089, 62216990090,
62216990091, 62216990092, under Sections 147, 148,
307/149 IPC against all the accused and under
Section 25 Arms Act against accused Binu @ Vinai
and accused Lakhan @ Lakkhi, whereas accused Mukesh
was charged under Section 4/25 Arms Act.

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However, accused Mukesh s/o Raj Kumar expired
during pendency of the trial, therefore, his case
stood abated at that stage.

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The investigation ensued and the statement of
the various prosecution witnesses were recorded and
site plan of the place of the occurrence was
prepared. Site plan of the case under Sections 147,
148, 307/149 IPC is Exhibit Ka-6, whereas
concerning the 25 Arms Act is Exhibit Ka-7.

¶17

Investigating Officer after recording statement
of various witnesses and after completing the
investigation filed charge-sheetagainst accused
Binu @ Vinai, Lakhan @ Lakkhi, Mukesh, Subhash for
offence- under Sections 147, 148, 307/149 IPC in
Case Crime No.62216990089- Exhibit Ka-2. The

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Investigating Officer also filed charge- sheet
against Lakhan @ Lakkhi in Case Crime
No.62216990091 for offence under Section 25 Arms
Act- Exhibit Ka-3.He also filed the charge-sheet
against accused Binu @ Vinai for offence under
Section 25 Arms Act in Case Crime No.62216990090-
Exhibit Ka-4. He has also filed charge-sheet
against accused Mukesh s/o Raj Kumar for offence
under Section 4/25 Arms Act in Case Crime
No.62216990092- Exhibit Ka-5.

¶20

Consequently, proceeding of the case was
committed to the court of Sessions where it was
numbered as Sessions Trial No.1110 of 2000 and was
transferred to the court of Additional Sessions
Judge, court no.7, Aligarh for conduction and
disposal of the trial.

¶21

The trial court heard the prosecution and the
accused on the point of charge and was prima facie
satisfied with the case against the accused.
Accordingly, charges were framed and read over and
explained to the accused, who abjured charges and
claimed to be tried.

¶22

Consequently, the prosecution in order to
prove guilt of the accused examined as many as
three prosecution witnesses, of whom P.W.1 Atar
Singh, P.W.2 Mahipal and P.W.3 Vidhya Ram are
prosecution witnesses and Vidhya Ram is C.W.1.

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Except as above, no other testimony was
adduced, therefore, evidence for the prosecution
was closed and statement of the accused was
recorded under Section 313 Cr.P.C., wherein, they
described various reasons for their false

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implication and submitted that no such police
encounter infact took place and they are innocent.
Nothing incriminating has been recovered from their
possession.

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The defence led testimony of the two witnesses
of whom D.W.1 is Surendra Singh and D.W.2 is
Shripal Singh.

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However, testimony of Vidhya Ram C.W.1 has got
no concern with the merit of the case. He has
informed about the fact of death of one of the
accused Mukesh s/o Raj Kumar whose case stood
abated at the stage of trial of this case.

¶28

The learned trial Judge after considering the
case on its merit returned aforesaid finding of
conviction and sentenced each of the aforesaid
accused as above.

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Feeling aggrieved by the same judgment and
order of conviction and sentence, the accused have
preferred this appeal.

¶30

Learned counsel for the appellants has briefly
submitted that it is a false case and the
circumstances will show that the police was much
interested in false implication of the accused in
this case, therefore, things have been ordained in
a fashionable manner at the whim of the police
party. It was the month of April and the summer had
set in and the incident is stated to have taken
place around 9.30 P.M. by the side of of GT Road,
which cannot be said to be lonely and deserted
place, still no public witness was availed. Not
only this, but also no person was named, who
refused to be a witness to the fact of arrest and
recovery. Next, contended that it is a case of no

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injury. The investigation conducted is faulty. The
testimony of the prosecution witnesses of fact is
contradictory. Only P.W.1 and P.W.2, the two
witnesses of fact, have been examined. The seized
country-made gun was never sent for forensic
examination, which also throws doubt on the claim
made by the police party that they recovered arms
punishable under Section 25 Arms Act. No knife was
recovered on the spot from the co-accused.

¶33

Learned AGA has retorted to the aforesaid
submissions of the learned counsel for the
appellants by submitting that it is correct that it
is no injury case, but fire was opened on the spot
on the police party by the accused who formed
unlawful assembly. It was the luck of the police
party that they escaped injury for which the
accused cannot claim any advantage.

¶34

Also considered the rival submissions and the
rival claims. In the light of the above, the point
for determination of this appeal crops up whether
the prosecution has been able to establish its case
beyond reasonable doubt against the accused-
appellants?

¶35

In this case, bare perusal of the first
information report, Exhibit Ka-10 and the arresting
memo Exhibit Ka-1 are indicative of fact that on a
tip- off information, the police party reached to
the spot, which is admittedly GT Road and the
police encounter took place on the Kharanja side of
the road a few paces away from the road. The police
party has admitted fact particularly P.W.1 and
P.W.2, the witnesses of fact, have categorically
stated that only one fire was shot by the accused

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side at the time of police encounter, whereas, the
language written in the FIR is indicative of fact
that a number of shots were fired on the spot by
the accused.

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Further, testimony of P.W.2 Constable Mahipal
Singh as on Page no.36 of the paper book reveals
that there is one police picket booth at a distance
of 20 paces away from the place of encounter, but
no police personnel was called from the police
picket booth nor did any person came to the spot
after the incident of firing had occurred from the
booth.

¶39

These two aspects; first, only one fire was
shot appearing in the testimony of P.W.1 and P.W.2
when matched with the description of FIR that a
number of fires were shot, do not tally. Secondly,
it shows the mind set of the police party that they
manipulated things in a way suited to them.
Aforesaid scrutiny is based on fact thanin case
only a single fire was shot, then this sort of FIR
regarding the instance of firing, cannot not be
written to the ambit that fires were shot.

¶40

Under facts and circumstances of the case,
though it is not a general rule that presence of
public witness is always necessary, but looking to
the surrounding and the attendant circumstances and
facts of this case, it was expected of the raiding
party to have called at least some person to stand
witness and in case, such person refused to be a
witness his complete details regarding name,
parentage and residence etc. ought to have been
described in the memo of arrest, because after
hearing the sound of the fire, if it infact took

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place, public will also be attracted and at least
some police personnel from the police picket booth,
which was at a distance of 20 paces from the place
of police encounter, must have arrived on the spot
out of curiosity. But absence of any public person,
as a witness or any police personnel from the
police picket booth though situated in the extreme
vicinity of the place of occurrence, creates lot of
doubt on the claim made by the police party that
the accused were apprehended and one fire was shot
on them. Therefore, a reasonable doubt is generated
regarding the manner and the style of incident,
claimed by the police to have taken place in such
manner. The weapons- say- the country-made guns
recovered from the two accused .315 bore and .12
bore were never sent for any forensic laboratory
for examination. If the police party was honest and
the investigation was proper then under
circumstances, in order to vindicate claim of the
recovery of the countrymade guns, the same should
have been sent for forensic examination. Though, it
is not obligatory for the Investigating Officer to
have taken steps for sending the recovered country-
made guns for forensic examination, but it being a
case registered by the police and all the witnesses
being police personnels, some corroboration from
independent source should and ought to have been
brought on record by way of precaution, which
corroboration is altogether missing in this case.
In the absence of any such corroboration, it would
not be safer to approve of the conviction of the
accused recorded by the trial court.

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The trial court did not contemplate on

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aforesaid vital factual aspects of the case and
erroneously recorded findings of conviction, which
finding of conviction in the wake of aforesaid
scrutiny is set aside.

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Consequently, the judgment and order of
conviction dated 22.01.2005 passed by the
Additional Sessions Judge, court no.7, Aligarh in
Sessions Trial No.1110 of 2000, (State Vs. Binu @
Vinai and others), police station- Gabhana,
District- Aligarh is not sustainable in the eye of
law and the same is set aside and the appeal is
allowed. The appellants are exonerated of all the
charges.

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In this case all the appellants are on bail.
They need not surrender. Their bail bonds are
hereby cancelled and sureties are discharged.
However, they will comply with the provisions of
Section 437-A Cr.P.C.

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Let a copy of this order/judgment be certified
to the lower court for intimation and necessary
follow-up action.

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Dt.08.08.2018
Raj

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Sudhir and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Sudhir and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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