Abhimanu Singh vs State of U.P.

S. R. Bhargava, J.—This revision is directed against conviction and sentence passed by the two lower courts against revisionist Abhimanu Singh for offence under Section 394, I.P.C. Incident of robbery alleged in the case was of 9th April, 1979 at 6.00 p.m. Prosecution story was that Ram Prakash, P.W. 1 and Harish Chandra P. W. 2, were returning from Punjab. When they reached the spot in the fields in the southwest of village Asalpur revisionist Abhimanu Singh accompanied by Udai Pal Singh and Prithvi Pal Singh, armed with lathis, surrounded them, assaulted them and snatched their belongings. They cried for help. Ram Prasad, PW. 3, Bhola, P.W. 4 and others came to the rescue of the victims. They challenged the robbers, Two of them could manage their escape. But after some assault revisionist Abhimanu Singh was arrested at the spot. A sum of Rs. 200/ in cash a transistor and attache containing clothes were recovered from the revisionist. Victims has suffered injuries in the incident. Written report of the incident was lodged the following day at 7.30 a.m. at Police Station situate at a distance of about four miles from the spot of incident. This written report was recorded by one Ram Kumar. It is said that Bhola, Ram Prasad and others had taken the revisionist to the Police Station alongwith the property recovered from him. After investigation chargesheet was submitted against revisionist Abhimanu Singh only.

Magistrate charged him with offences under Sections 394 and 411 I.P.C. on 10th April,1981 Magistrate recorded examinationinchief of Ram Prakash, P.W. 1, Harish Chandra. P.W.2, Ram Prasad, P.W. 3 and Bhola P.W. 4. On that day the witnesses were not crossexamined. On 21st July, 1981 application was moved on behalf of the revisionist that the above four witnesses were not crossexamined on account of illness of their counsel and that they may be called for crossexamination. Learned Magistrate allowed their application and recalled the four witnesses. Ram Prakash and Harish Chandra, P.W. 1 and P.W, 2, did not turn up for their crossexamination, Ram Prasad, P.W. 3 and Bhola, P.W. 4 were crossexamined. Then there was formal evidence of factor and investigating officer.

Learned Magistrate believed the prosecution case of robbery, spot arrest and recovery against the revisionist. He found the revisionist guilty of offence of robbery under Section 394 I.P.C. He convicted him with offence under Section 394 I.P.C. and sentenced him to rigorous imprisonment for 2 1/2 years. He acquitted the revisionist for offence under Section 411 I.P.C.

Being aggrieved, revisionist preferred appeal before the Sessions Judge. It was urged before the Sessions Judge that the evidence of Ram Prakash and Harish Chandra, P.W. 1 and P.W. 2, cannot be relied upon because they were not tendered for crossexamination. The learned Sessions Judge discarded this contention only on the ground that the revisionist had opportunity to crossexamine them and if they could not be called subsequently or could not be available their testimony cannot be excluded. The learned Sessions Judge confirmed the findings. Conviction and sentence recorded by the Magistrate.

Now this revision before this court.

The main question which requires determination in this revision is whether the uncrossexamined testimony of Ram Prakash, P.W. 1 and Harish Chandra, P.W. 2, could be read in evidence against the revisionist. It is true that the accused had opportunity to crossexamine them on the day they were examined. But it is equally true that the Magistrate allowed the application moved on behalf of the revisionist the crossexamination could not be done on account of illness of his counsel. This ground was accepted and his application was allowed. This means that on the day of examination of the victims and the eyewitnesses of the case accused did not have reasonable opportunity for crossexamining them. Subsequently the victims themselves were not made available for crossexamination. In the circumstances of the case I hold that the accused did not have reasonable opportunity of crossexamining victims and witnesses Ram Prakash and Harish Chandra P.W.S. 1 and 2. Hence their testimony cannot be read in evidence against the accused. Their testimony was absolutely necessary for the case because the First Information Report was lodged after more than 12 hours. There is admission of Ram Prasad, P.W. 3, in his crossexamination that police man accompanied the witnesses and the revisionist to the police station. Then it is evident that there is contradiction between Ram Prasad, P.W. 3 and Bhola, P.W. 4, about the spot of arrest of the revisionists. It is also evident that two persons named in the First Information Report were not brought for trial. I hold that once the testimony of victims is excluded the prosecution case of robbery, spot arrest and recovery becomes doubtful. In result, it has to be said that there was legal mistake in appreciation of evidence. Revisionist is entitled to benefit of doubt. He must be acquitted and his conviction and sentence must be set aside.

Revision is allowed. Conviction and sentence of revisionist Abhimanu Singh are set aside. He is on bail. His bail bonds are cancelled and Sureties are discharged. He need not surrender.

Revision allowed