Puttan and Others vs State of U.P.

G.S.N. Tripathi, J.—Accused Pirthi, Phool Singh, Puttan and Bal Kishan have been convicted on a charge u/s 25 Arms Act and sentenced to undergo 6 months R.I. vide judgment and order dated 6.10.79 passed by the then Vth Addl. Sessions Judge, Moradabad in S.I. No. 664 of 1978, State v. Jai Singh and 7 Ors. Under Sections 399, 402, I.P.C. read with Section 25 Arms Act.

It is alleged that on receipt of Information on 14.11.77 at about 7.30 p.m. the police party proceeded towards the place of occurrence, where it is alleged that the dacoits were likely to assemble after having made preparation to commit dacoity. The police party consisting of the policemen as well as public persons divided themselves into three parties and they took their respective positions. After a short-while, the alleged dacoits started assembling and talking amongst them. After hearing their conversion, the Station Officer was satisfied that it was a gang of armed dacoits that had assembled for the purpose of committing dacoity after having made requisite preparation for the same. He threw a challenge to the dacoits. They tried to run away. However, they were overpowered and arrested. One gun Exhibit 4 and live cartridges Exhibit 7 were recovered from Pirthi, Tamancha Exhibit 5 and five live cartridges respectively Exhibit 7/1 to 7/5 were recovered from accused Phool Singh. From Puttan Tamancha Exhibit 8 and four live cartridges were recovered (Exhibit 9/1 to 9/4). From Bal Kishan, one Tamancha Exhibit 10 and four live cartridges (Exhibit 11/1 to 11/4) were recovered. Some recoveries were made from other co-accused also, which are not relevant for the purpose of this appeal. These articles were sealed on the spot and recovery memo was prepared.

The case was investigated by Sri. B.S. Awasthi then S.O., P.S. Adampur under the orders of the Circle Officer dated 18.11.77. After formal investigation and visiting the spot, the I.Q. completed the investigation. He obtained the permission from the District Magistrate to prosecute the accused u/s 25, Arms Act.

The prosecution laid the charge sheet and produced witnesses of fact as well as formal witnesses for proving relevant documents. The accused denied the allegations against them. They pleaded not guilty.

After appraisal of the entire evidence and circumstances on the record, the learned Sessions Judge extended the benefit of doubt to the accused on the charges Under Sections 399 and 402, I.P.C. However, he believed the prosecution version as regards the recoveries u/s 25, Arms Act and convicted the accused Appellants accordingly.

All the four convicted accused have preferred this appeal. The accused Appellants Pirthi and Bal Kishan have died. The appeal against them abates.

Now only accused Puttan and Phool Singh are left in this appeal.

I have gone through the record intensively and heard the learned Counsel for the Appellants.

At page 15 of the judgment, the learned lower Court has observed as follows:

In the instant case the prosecution evidence about over hearing the talks of the accused by the S.O. Satpal Singh and Sri. Sayed Ahmed (PW 2) have been found to be doubtful and it being more probable that the accused were arrested while they were sitting in the Kothri adjoining the temple. The only circumstances that appear against the accused is that they had assembled there at an odd hour and one of them was armed with a gun and 3 others were armed with pistols for which they had no license. It cannot be inferred that the accused had assembled for the purpose of committing dacoity and had made preparation for the same. The prosecution has not given any evidence to show that any explanation was sought from the accused as to the purpose of their assembly and no explanation was furnished. The possibility for their assembly for any other purpose cannot be ruled out. I am therefore of the opinion that prosecution has not been able to prove its case as against the accused Under Sections 399 and 402 of the Indian Penal Code beyond reasonable doubt.

This way, the basic feature of the prosecution case has been disbelieved. This fact of the prosecution story that recoveries were affected from the accused has been believed by the learned lower Court. That finding has not been challenged before me by the learned Counsel for the Appellants.

The learned Counsel has urged that the accused are very old persons and they should be given leniency with regard to the sentence. I agree with this contention of the learned Counsel.

The occurrence took place in the night of 14/15 November, 1977. The accused had suffered about two months'' imprisonment already. There is no evidence on the record to show that they are professional and habitual criminals or they have any conviction to their credit earlier even. Now there is any evidence that they have repeated such crimes after their conviction and release on bail. Taking the totality of the circumstances, into consideration, I think it will not be just and proper to send them to jail again to undergo imprisonment any further.

Thus after confirming the conviction of the accused u/s 25 Arms Act, I reduce the sentence for the period already undergone by the accused Puttan and Phool Singh. With these observations, the appeal is substantially dismissed.

The conviction of the accused Puttan and Phool Singh u/s 25, Arms Act is hereby confirmed. However, the sentence is reduced to the period already undergone by them. Both the accused are in custody. They shall be released forthwith unless required in any other case. As observed earlier the appeal of the accused Pirthi and Bal Kishan is abated due to their death pending appeal.