Allowed

Kallua v. State of U.P.

Allahabad HC29 Aug 2022CRLA/92/1986

Case brief

AI extract

What is this about?

This Criminal Appeal against conviction under the Arms Act and IPC for abduction and rape was allowed. The High Court acquitted the appellant, holding that the prosecution failed to prove the working condition of the weapon and the explosives nature of cartridges due to lack of forensic analysis. The conviction was further undermined by the trial court's finding that key prosecution witnesses were

What did the court decide?

The judgment and order of the trial court are set-aside. The appellant Kallua is acquitted of all charges.

Kallua Vs State of U.P. — Cheque Dishonour | Allahabad HC (2022)

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(1)

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Court No. - 66

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Case :- CRIMINAL APPEAL No. - 92 of 1986

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Appellant :- Kallua Respondent :- State of U.P. Counsel for Appellant :- A.B.L. Gaur Counsel for Respondent :- A.G.A.

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Hon'ble Samit Gopal, J.

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The present Criminal Appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Kallua against the judgment and order dated 17.12.1985 passed by V Additional Sessions Judge, Etah in Sessions Trial No.187 of 1984 (State of U.P. Vs. Kallua and another) convicting and sentencing the appellant under Section 25 (1)(a) of the Arms Act to one year rigorous imprisonment.

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The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228 of the Indian Penal Code. She is, thus, referred to as ‘X’ in the judgment.

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The prosecution case as per the application dated 14.04.1983 given by Bholi to the police of which Krishna Pal Singh is the scribe is that his daughter Sumira aged about 15 years and his niece who is the victim 'X' aged about 20 years who is married went together to ease themselves at about 7.30 a.m. After some time his daughter Sumira came back home crying and told him that she and victim 'X' had gone to ease themselves wherein 6-7 persons armed with guns came and took away the victim 'X' with them towards river Ganga. On this information, the first informant, Fateh, Manohar, Nekram, Devi, Laxman, Veerpal being Jatav's of his village along with Teekam Singh, Kunwarpal Singh, Naththu Singh, Dev Singh, Rajendra Singh being

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(2)

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thakur's and many other persons launched a search and went towards river Ganga. Amongst the people Fateh, Teekam Singh and Kunwarpal Singh were carrying guns and other persons were carrying lathis with them. They saw that his niece was with Rasia Aheer, Garhiya Hisol, Rajendra Pandit, and Chutua Dhobi, whom they knew before and there were three other companions who all were sitting having guns with them. They at about 1 p.m. on seeing them left the girl and ran towards Ganga river. They also ran towards them and apprehended one person along with a gun which was SBBL and with four cartridges. The said person disclosed his name as Kallua, resident of Nawabganj, Police Station Sahawar. The gun was in his right hand and the cartridges were in the right pocket of his pant. His other companions ran away. On asking from Kallua, he disclosed that apart from Rasia, Rajendra and Chutua, one Genda Lal and Gulab have also ran away with their weapons. The said persons have been seen by them and they can recognize and identify them if they are brought before them. His niece victim ‘X’ then stated that the persons took her and forcibly committed wrongful act with her. His niece, the recovered gun and cartridges and accused Kallu is with him. His report be lodged and action be taken. The said application is Exb : Ka-1 to the records.

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On the basis of said application, a FIR was lodged on 14.04.1983 at 17:00 hours against Rasia Aheer, Rajendra Pandit, Chutua Dhobi, Kallua, Genda Lal and Gulab which was registered as Case Crime No.79 of 1983 under Sections 366/376 IPC and Case Crime No.80 of 1983 under Section 25 Arms Act, Police Station Sahavar, District Etah. Copy of the Chik FIR is Exb : Ka-4 to the records.

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The Police prepared a recovery memo dated 14.4.1983 with regards to a country-made gun 12 bore and 4 cartridges of 12 bore. The same is marked as Exb : Ka-2 to the records. Fateh Singh, Kunwarpal Singh and Bholi are the alleged witnesses of the same.

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(3)

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An underwear of the accused Kallua was taken into custody on 14.4.1983 of which a recovery memo was made. Fateh Singh and Kunwarpal Singh are the witnesses of the same. The same is marked as Exb : Ka-11 to the records.

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One salwar of the victim ‘X’ was taken into custody on 14.4.1983 of which a recovery memo was made. Fateh Singh, Kunwarpal Singh and Smt. Sharda are the witnesses of the same. The same is marked as Exb : Ka-12 to the records.

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The investigation concluded and Charge Sheet No.93 dated 22.06.1983 was submitted against Kallua and Rajendra in Case Crime No.79 of 1983 under Sections 366, 376 IPC. The same is exhibited as Exb : Ka-8 to the records.

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Further Charge Sheet No.94 dated 22.06.1983 was submitted against Kallua in Case Crime No.80 of 1983 under Section 25 Arms Act. The same is exhibited as Exb : Ka-9 to the records.

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Vide order dated 23.08.1985 passed by V Additional District and Sessions Judge, Etah, charges were framed against Kallua and Rajendra under Sections 366, 376 IPC.

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Further vide order of the same date, charge was framed against Kallua under Section 25 (1)(a) of the Arms Act.

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Further vide order of the same date, charges were framed against Kallua and Rajendra under Section 148 IPC.

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Both the accused persons pleaded not guilty and claimed to be tried before the trial court.

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The prosecution examined seven witnesses in all. Victim ‘X’ was examined as P.W.1, Smt. Sumira who is the daughter of the first informant was examined as P.W.2, Bholi was examined as P.W.3 who is the first informant of the case, Fateh Singh was examined as P.W.4

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(4)

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and Manohar was examined as P.W.5 who are the eye-witneses, Head Constable Om Prakash was examined as P.W.6 and Sub-Inspector Chatrapati Singh was examined as P.W.7.

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The trial court vide impugned judgement and order acquitted the accused-appellant Kallua and Rajendra under Sections 148, 366, 376 IPC but convicted the accused-appellant Kallua as stated above.

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Heard Sri A.B.L. Gaur, learned Senior Advocate assisted by Sri Saurav Gaur, learned counsel for the appellant, Sri Ankit Srivastava, learned counsel for the State and perused the records of this appeal and also the trial court records.

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Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that the first informant Bholi has not supported the prosecution case and has been declared as hostile. It is argued that in so far as the recovery of the gun and cartridges is concerned, Manohar (P.W.5) in his cross-examination has stated that there was no cartridge in the barrel in gun and he did not see any cartridge. It is further argued that there is no evidence on record to show that the said weapon was sent to the ballistic expert along with cartridge to show that the same was in a working condition. It is argued that since there is no corroboration of the fact that the said weapon was in working condition and the cartridges were live, the conviction of the accused-appellant as done cannot be sustained. The said weapon was not sent to the forensic laboratory and as such there was no evidence to show that it was in a working condition. Even the cartridges were not sent to the forensic laboratory and as such it cannot be said that they were empties or live cartridges. It is argued that the trial court has disbelieved the version of the first informant, victim ‘X’ and the daughter of the first informant and other witnesses in so far as it relates to the case of rape and as such partly believing the case with regards to the alleged recovery would not be safe at all. It is

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(5)

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argued that as such the prosecution has not proved its case beyond doubt. The implication of the appellant is without any credible evidence and is only on the basis of suspicion. The appeal deserves to be allowed and the appellant deserves to be acquitted.

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Per contra learned counsel for the State has opposed the arguments of learned counsel for the appellant and argued that the appellant is named in the FIR, he was apprehend at the spot along with the weapon and cartridges and then brought to the police station after which the FIR was lodged. The story is a natural story. The prosecution case has been proved beyond reasonable doubt. The trial court after examining the evidence on record has convicted the appellant. The appeal deserves to be dismissed.

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P.W.1 is the victim ‘X’ of the case and she has been declared hostile before the trial court.

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P.W.2 Sumira is the daughter of the first informant who is stated to be accompanied with victim ‘X’. She has also been declared hostile before the trial court.

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Bholi, P.W.3 is the first informant of the matter who is the father of Sumira and uncle of the victim ‘X’. He was also declared hostile by the trial court.

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Fateh Singh, P.W.4 and Manohar P.W.5 although were the alleged eye-witnesses but their statements does not in any manner state of the fact that the accused persons committed sexual assault on the victim ‘X’.

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Constable Clerk Om Prakash, P.W.6 transcribed the Chik FIR. He proved the same and the corresponding G.D.

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Sub-Inspector Chatrapati Singh, P.W.7 is the Investigating Officer of the case who took up the investigation, concluded it and filed charge

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(6)

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sheets against the accused-appellant and Rajendra.

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The accused-appellant in his statement recorded under Section 313 Cr.P.C. has stated that he has been falsely implicated in the present case. The entire work is a fabricated proceeding. A false charge sheet has been filed against him. He states that Yashpal and Yuvraj are of his village who have relatives in the village of the first informant Bholi who are Rajendra, Chedi Singh and Devki Thakur who have enmity with Yashpal and Yuvraj. They have in conspiracy got a false case lodged against him. The witnesses under their pressure and fear of police have given false evidence. He was arrested from his house in the morning and taken to the police station where the first informant and the witnesses were present and he was shown to them and a false FIR was lodged. Yashpal and Yuvraj had come with the police to his house.

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After having heard the learned counsel for the parties and perusing the records, it is evident that part of the prosecution case with regards to enticing away of the victim ‘X’ and her rape has been disbelieved by the trial court. Victim ‘X’ (P.W.1), Sumira (P.W.2) and Bholi, the first informant (P.W.3) have not supported the prosecution case and have been declared hostile. The alleged recovered weapon was not sent to the ballistic expert for it’s examination. Even the alleged four cartridges which were said to have been recovered, were not sent for analysis to the ballistic expert. The Apex Court in the case of Jaspal Singh Vs. State of Punjab: 1998 (7) SCC 289 has held that mere possession of a gun and some cartridges without any evidence to show that the gun was in a working condition and the cartridges were alive could not sustain the conviction of the accused-appellant under Section 25 of the Arms Act. Further the Apex Court in the case of State of Punjab Vs. Jagga Singh: AIR 1998 SC 3113 , has held that the accused-appellant was found in possession of unlawful arms and cartridges which were not sent for examination to the Central Forensic Science Lab, there is

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(7)

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no other evidence to prove that the said arm was in a working condition and the cartridges were alive, therefore, in the absence of any evidence to show that the arm was in a working condition and the cartridges were alive, the accused-appellant cannot be convicted. In the present case the situation is even worse for the prosecution. The first informant, his daughter and his niece have not supported the prosecution case and have been declared hostile. Part of the prosecution case with regards to the major offence has been disbelieved by the trial court and the accused-appellant has been acquitted of the charges levelled against him for it. The said finding has not been challenged and has become final. Looking to the position of law as stated above and the infirmities in the prosecution story, the prosecution has not succeeded to prove its case beyond reasonable doubt against the appellant, as such the appellant is entitled to be acquitted.

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The appeal stands allowed. The judgment and order dated 17.12.1985 of the trial court is hereby set-aside. The appellant Kallua is acquitted of the charges levelled against him.

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The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

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The office is directed to send the certified copy of the judgment along with the trial court records to the trial court concerned for necessary information and follow-up action.

(Samit Gopal, J.)

Dt. 29.8.2022.

Gaurav

Digitally signed by GAURAV KULSHRESTHA Date: 2022.09.09 10:47:06 IST Reason: Location: High Court of Judicature at Allahabad

Kallua v. State of U.P.

Case brief

What is this about?

What did the court decide?

Kallua v. State of U.P.

Case brief

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