Sati Ram & Ors. vs State Of U.P.

Hon'Ble Lakshmi Kant Shukla, J.

Heard Mr. Ajay Kumar, learned Amicus Curiae appearing on behalf of appellant nos. 1, 2 and 5 i.e. Sati Ram @ Satti, Shreebal and Ram Adhar respectively, learned AGA representing State-opposite party no. 1 and perused the record.

The appellants, namely Sati Ram @ Satti, Shreebal, Dharam Deo, Shobhi and Ramadhar, have preferred the present Criminal Appeal before this Court assailing the impugned judgment and order dated 19.09.1984 passed by the 4th Sessions Judge, Azamgarh (hereinafter referred to as the “Trial Court”) in Sessions Trial No. 512 of 1983, State v. Sati Ram and Others.

By the impugned judgment, the trial court convicted and sentenced the appellants under Section 399 IPC to four years’ rigorous imprisonment and under Section 402 IPC to four years’ rigorous imprisonment. In addition, appellants Sati Ram, Shreebal and Dharam Deo were sentenced to undergo one year’s rigorous imprisonment under Section 25 of the Arms Act, whereas appellants Shobhi and Ramadhar were sentenced to undergo six months’ rigorous imprisonment under Section 25 of the Arms Act.

It is made clear at this stage that, during the pendency of appeal appellant no. 3 Dharam Deo and appellant no. 4 Shobhi died. Consequently, the appeal qua appellant nos. 3 and 4 stood abated vide order dated 12.01.2026. Accordingly, the present criminal appeal survives only in respect of Appellate No. 1 Sati Ram @ Satti, Appellant No. 2 Shreebal and Appellant No. 5 Ram Adhar.

Feeling aggrieved by the aforesaid conviction and sentence, the instant Criminal Appeal has been preferred on the grounds that the conviction of the appellants is contrary to the evidence available on record. It is further contended that the prosecution has failed to establish the guilt of the appellant beyond all reasonable doubts, that the sentence awarded to him is too severe, and that the defence evidence has been wrongly disbelieved by the learned trial court.

The factual matrix of the case, is that the informant, Sri Suryadev Rai, Station Officer, Police Station Raunapar, District Azamgarh met other police personnel and they have an exchange of talks. In the meantime, a police informer informed them that at about midnight of 09.07.1983 a famous gang of dacoits led by Satiram, armed with weapons, would collect in the grove of Kesho Singh which situates towards north of Village Hazipur. The informer further disclosed that the said miscreants would commit dacoity at the house of Kedar Singh resident of Village Hazipur.

Believing the aforesaid information to be true, the informant constituted three police teams. The first party was headed by the informant himself and accompanied S.I. Nisar Ahmad, Constable/180 Radhey Shyam, Constable/636 Triloki Nath, Constable/522 Ramashrey Singh, Constable/197 Phoolchandra Yadav, and witnesses Kamal Singh and Brahmachari Singh.

The second party was headed by S.I. Ram Narayan Yadav of Police Station Dohri Ghat and accompanied by S.I. Rameshwar Prasad, Constable/443 Ramakant Yadav, Constable/554 Ramraksha Yadav, and witness Ramadhar Shukla.

The third party was headed by S.I. Harinarayan Singh and accompanied by Constable Surendra Prasad Singh, Constable Lakshmi Singh, Constable Mahatam Prasad, Constable Ramnarayan Prasad, and witness Ramadhar Mishra.

All three police parties proceeded towards the place of occurrence at about 11:30 p.m. and, after reaching there, inspected the location. The first police party hid itself on the western side of the grove behind the trees, while the second party took position on the northern side of the grove in a pit. The third party hid itself on the southern side of the grove in another pit. At about midnight, i.e., approximately half an hour later, five miscreants were seen entering the grove from the eastern side. After some time, a few more miscreants also arrived from the eastern side and joined them. The miscreants sat together and started talking amongst themselves. One of them stated that all their aides could not yet come and that they had already delayed, the time of dacoity was overring. He further stated that it would be worthless to wait for anyone and suggested that they should proceed to commit the dacoity. The said person further stated that the villagers were coward persons and they would obtain enough property in the dacoity. Thereafter, all the miscreants arose together.

Thereafter, the informant believed that all those miscreants were intended to commit the dacoity. The informant challenged them in high volume that they had been surrounded by the police, if they tried to fire they would be killed. Pursuant to the directions given earlier, S.I. Nisar Ahmad fired two V.L.P. shots to light the area. On seeing the sudden light, the miscreants became astonished and started fleeing towards the eastern side. The police personnel switched on their torches and chased them. At a distance of about 100 yards, five of the accused/appellants were apprehended by the police party at about 1:00 a.m., whereas the remaining miscreants succeeded in escaping from the spot. The apprehended persons were thereafter searched. Upon being questioned, they disclosed their respective names and addresses.

From the possession of appellant no. 1 i.e. Satiram, a country made pistol having 12 bore along with three live cartridges (the detailed description disclosed in recovery memo) and a torch with eveready three cells. From the possession of appellant no. 2 i.e. Shreebal, a country made pistol along with four live cartridges out of which two were live (the detailed description of country made pistol and cartridges have been given in recovery memo) and a torch geep with three cells. From the possession of appellant no. 5 i.e. Ram Adhar an illegal battle-axe was recovered (the detailed description in recovery memo). Apart from the aforesaid recoveries, illegal country made pistols and cartridges were also recovered from the possession of dead appellant nos. 3 and 4.

The recovery memo (Ex. Ka-1) was prepared, and the appellants were taken into custody after recording the grounds of their arrest and were thereafter lodged in the lock-up of Police Station Raunapar. The First Information Report was lodged at about 7:45 a.m. on 10.07.1983. Accordingly, Case Crime No. 66 of 1983 under Sections 399/402 IPC and Case Crime Nos. 67, 68, 69, 70 and 71 of 1983 under Section 25 of the Arms Act were registered at Police Station Raunapar, District Azamgarh, vide Chik Report No. 53 (Ex. Ka-2). The FIR was dispatched from the police station to the concerned Magistrate on 11.07.1983.and the investigation was entrusted to the Investigating Officer, Girijesh Dutt Mishra, who recorded the statements of the accused persons while they were confined in lock-up of the police station, as well as the statements of other witnesses. Upon completion of the investigation, the Investigating Officer submitted a charge-sheet against the appellants, bearing Charge-sheet Nos. 56, 57, 58, 59, 60 and 61 dated 06.08.1983 (Ex. Ka-4, 5, 6, 7, 8 and 9).

The Magistrate concerned took the cognizance in the matter and registered the case on 24.09.1983 and after compliance of section 207 Cr.P.C. finding the offence exclusively triable by Sessions Court, the learned Magistrate committed the case to the Court of Session in accordance with law. Upon receipt of the record on committal the case was registered the aforesaid trial number. The charges against accused persons under section 399 and 402 IPC were framed collectively and under section 25 of Arms Act were framed separately against each of the appellants. The charges were read over and explained to the accused appellants who denied the allegations, pleaded not guilty and claimed to be tried.

The trial commenced, during which the prosecution examined PW-1 S.I. Harinarayan Singh, PW-2 Brahmachari Singh, PW-3 Kamla Singh, PW-4 Ramdhani Shukla, PW-5 Suryadev Rai, and PW-6 Girijesh Dutt Mishra, the Investigating Officer, in oral evidence. The prosecution also proved the recovery memo as Ex. Ka-1, the Chik FIR as Ex. Ka-2, the Spot Map as Ex. Ka-3, and the charge-sheet as Ex. Ka-4. In respect of the offences under Section 25 of the Arms Act, separate charge-sheets were also proved, bearing Charge-sheet No. 57 against Sati Ram as Ex. Ka-5, Charge-sheet No. 58 against Shreebal as Ex. Ka-6, Charge-sheet No. 59 against Dharam Deo as Ex. Ka-7, Charge-sheet No. 60 against Shobhi Pasi as Ex. Ka-8, and Charge-sheet No. 61 against Ram Adhar as Ex. Ka-9 permission by District Magistrate for prosecution under section 25 Arms Act Ex. Ka 10 to 12 and G.D. Entry Ex. Ka.-13.Copy of order dated 21.12.1984, a copy of charge sheet in Crime No. 31/1982 Ex. Kha 2, copy of charge sheet in Case Crime No. 32/1979 as Ex. Kha 3.

Upon conclusion of the prosecution evidence, the statements of the accused/appellants were recorded under Section 313 Cr.P.C. The appellants denied the prosecution allegations and stated that the prosecution witnesses had given false evidence and that the case had been falsely instituted against them on account of political enmity.

In defence, DW-1 Ram Jiyawan was examined. The defence also proved an application submitted by a large number of villagers, including the prosecution witnesses, before the Superintendent of Police, Azamgarh, alleging that the present case was false, as Ex. Kha-1. Copy of order dated 21.12.1984, a copy of charge sheet in Crime No. 31/1982 Ex. Kha 2, copy of charge sheet in Case Crime No. 32/1979 as Ex. Kha 3 had also been brought on record.

The following material exhibits were also produced before the trial court: Material Ex. 1, the torch recovered from Sati Ram; Material Ex. 2, the torch recovered from Shreebal; Material Ex. 3, the country-made pistol recovered from Sati Ram; Material Ex. 4 to Material Ex. 8, the cartridges recovered from Sati Ram; Material Ex. 9, the country-made pistol recovered from Shreebal; Material Ex. 10 to Material Ex. 13, the cartridges recovered from Shreebal; Material Ex. 14, the country-made pistol recovered from Dharam Deo (since deceased); Material Ex. 15 to Material Ex. 18, the cartridges recovered from Dharam Deo; and Material Ex. 19, the knife recovered from Shobhi and a Pharsa recovered from Ram Adhar as Material Ex. 20.

PW-1, S.I. Hari Narain Singh, deposed that on 09.07.1983 he was posted as Sub-Inspector at Police Station Raunapar. On the said date, he, along with S.I. Suryadev Rai, Station Officer, and police personnel namely Constables Rajendra, Ramsengar, Radhey Shyam, Triloki Nath, Lakshmi Singh, Suresh Singh, Mahatam Prasad, Ram Narain Prasad and Phoolchandra, as well as S.I. Nisar Ahmad, was engaged in the search for the accused persons in connection with Crime No. 65, under Sections 395/397 IPC. While proceeding through Kalyanpur, they reached near the tri-junction of Sahanupur Kasba, where S.O. Ram Narain Yadav of Police Station Dohri Ghat, along with S.I. Rameshwar Prasad, S.I. Ram Prakash, Constable Ramakant, Constable Ramashrey Prasad, Constable Ramanand and Constable-driver Saudagar Singh, met with other party and were exchanging talks. In the meantime they received information from informer (mukhbir) that in the grove of Keshav Singh in the helmet of village Hajipur a Gang of dacoit Sati Ram would collected and they would commit dacoity in the house of Kedar Singh of village Hazipur.

Believing on this information they reached at Primary School Hazipur from there Constable Radhey Shyam and Triloki were sent to procure the witnesses. Those constables came back along with witness Bhramchari Singh, Ramdhani of village Bhadaura Makrand and Kamal Singh, Shivadhar Mishra of village Hazipur. Thereafter constable Rajendra Yadav and constable Ram Singh were deputed in security in the house of Kedar Singh.

Thereafter S.O. Raunapar constituted three parties of police personnel and witnesses in first party S.O. Suryadev Rai, S.I. Nisar Ahmad, Constable Radhey Shyam, Constable Triloki Nath, Constable Ramashrey Singh, Constable Phoolchandra Yadav and witness Kamal Singh and witness Bramchari Singh. The second party headed by S.I. Ram Narayan Yadav, the Station Officer of Police Station Dohri Ghat accompanied by S.I. Rameshwar Prasad, Constable Ramakant Yadav, Constable Ramraksha Yadav and witness Ramadhani Shukla, and third party was headed by SI Harinarayan Singh, Constable Surendra Prasad Singh, Constable Lakshmi Singh, Constable Mahatam Prasad, Constable Ramnarayan Prasad and witness Ramadhar Mishra, thereafter at 23:30 o’clock they departed for the place of occurrence after inspection of place of occurrence first, second and third police party hid them behind trees in the western side of grove behind pits in northern side of pit and in pits situated in the southern side of grove respectively at about 24:00 o’clock half and hour thereafter five miscreants coming from eastern side of grove sat down after half an hour thereafter three other miscreants came and sat there and started exchanging talks to each other, one miscreant said that it is right time but their rest companion had not come till then, they would not delay they had enough weapons. The villagers were coward let us go for dacoity, they would get enough property. Hearing aforesaid talking the police party believed that it was the gang of dacoits then Station Officer Raunapar challenged the miscreants saying that they were surrounded by police they would be surrendered. If they would try to flee, they would be killed. S.I. Nisar Ahmad made VLP fire twice due of which it was light in the area, the dacoits became panic and ran towards east. The police parties apprehended them. First party apprehended Sati Ram, Second party apprehended Dharam Deo and third party apprehended Ramadhar. Thereafter, the police personnel make search of miscreants and a pistol and 5 cartridges from the possession of Sati Ram, a pistol and four cartridges from the possession of Shreebal, one pistol and four cartridges from the possession of Dharam Dev, one knife from the possession of Shobhi and one battle axe from the possession of Ramadhar were recovered. Two cartridges out of five cartridges recovered from the possession of Satiram were misfired, two cartridges out of other four cartridges recovered from the possession of Shreebal were misfired, one cartridge out of four cartridges recovered from the possession of Dharam Deo was misfired. Rest cartridges recovered from the possession of aforesaid respective appellants were live. Dharmdev by second police party and Shobhi having knife and Ramadhai having battle-axe by third police party were apprehended in the grove. The recovered article were sealed and its recovery memo was prepared, the witness seeing the material recovered from the place of occurrence in the court proved them as material Ex. 1 to material Ex. 20. This witness further has proved the recovery memo identifying his own signature on it as Ex. Ka-1.

PW-2 Brahamchari Singh in his statement dated 17.02.1984 stated the incident to be of 6 to 7 months old. Two sepoi came to call him saying that the Daroga was calling it would be dacoity at the residence of Kedar Singh, the witness called Ramdhari, went Hazipur, there at Primary School S.O. was present who explained that he came to know that it would be dacoity at house of Kedar Singh, let us go with him. They reached to furlong ahead in the north of school near grove where the Daroga constituted three teams, the first party was headed by Station Officer in that party he and Kamla Singh were part of that. Second party was headed by S.O. Dohri Ghat and Ramadhar was in party. Third party was headed by Sub-Inspector Hari Narain which consisting Ramdhani Shukla. First party took position in the western side of grove. He is not aware about where other parties took position. At about 12:00 o’clock they hid themselves, after wait of half an hour five dacoits came from eastern side and sat near well situated in grove after some time three other person reached there and sat along with already sitting dacoits. They had exchange of talks to each other, one bandit said that the rest persons had not come they were enough for their job they were becoming rich for dacoity then Station Officer challenged the bandits saying that they were surrounded by the police so they would surrendered. In the meantime Ram Narain fired twice to spread light out of which enough light spread in the area then being panic the dacoits started fleeing from the same towards east. Then the witnesses chases them and caught hold them. The witness had torch and license gun. First party apprehended two accused but he was unable to explained further regarding which party apprehended how many miscreants. The miscreants apprehended by his party already disclosed their names as Shreebal, Satiram, a country made pistol, five cartridges a torch from the possession of Sati Ram and a pistol four cartridges from the possession of Shreebal, were recovered other bandits disclosed their names as Brahmdeo, Ramadhar, Shobhi, thereafter he stated to have recovered a pistol and four cartridges from the possession of Dharam Deo, a knife from the possession of Shobhi and a battle axe from the possession of Ram Adhar. All these articles were taken into custody by police preparing recovery memos setting in a clothes sealed the recovery memos read over to the witnesses after hearing he signed it the witnesses his signature on Ex. Ka-1. The apprehended bandits were taken to police station while the witnesses went to his home.

PW-3 Kamla Singh in his statement dated 09.03.1984 stated the incident to be of ten months old a sepoi of Police Station Raunapar went to call him in the night and took him at primary school Hazipur Brahmchari was also with him. There was police personnel at school already the Daroga told that the dacoits were about to come to commit dacoity at the residence of Kedar Singh, they will collected in the grove of Keshav Singh. Where Daroga constitutes three parties of police including the public witnesses then they reached in the grove all three parties sat at fix places maintaining their position to have not been seen by miscreants. After some time five persons came from eastern side and sat down after some time some other bandits also came there and sat down. They were started talking to each other but the witness could not listen their talking the bandits were about to move from there, then Daroga scolded them and fired due to light spread in the air and in that light public witness and police party apprehended five bandits some bandits managed to escape, the arrested bandits were identified, three pistols were recovered from three separate bandits, a knife was recovered from one bandit and battle axe was recovered from fifth bandit. Due to lapse of long time the witness could not told that from which bandit what weapon was recovered. Seeing the accused Sati Ram, Dharma Deo, Ram Adhar, Shobhi and Shreebal the witness stated that these persons were apprehended on spot, he did not know them prior to the incident, even after observing their faces he could not told that what weapon was recovered from which accused. These witness also identified his signature on Ex. Ka-1 and Ex. 1 to Ex. 20 the recovery memos.

PW-4 Ramdhani Shukla in his statement dated March 22, 1984 stated the incident to have of one year old, the police of Raunapar reached his residents to call him in the night except him Bhramchari Singh etc were also called they reached at Hazipur School in the night where the police personnel of Police Station Dohrighat and Raunapar were present on their reaching the Daroga of Raunapar police station explained before all of them that the dacoity would be happened at the house of Kedar Singh at Hazipur and the dacoits would have collected in the grove of Kedar Singh, the Daroga created three parties including police personnel and public witness, they reached on spot and took their positions. He was in the north side of place were bandits were sitting, the daroga of Dohrighat was with him other witnesses were also after some time five bandits entered from eastern side in grove and sat down after some time three other bandits came there and sat at the same place and started talking to each other one of bandits said that till then other aides had not come while the time of dacoity was being over waiting was, worthless they had sufficient weapon and they stood up for dacoity and were about to move then the police and witnesses believed that it was the gang of dacoits then the Daroga challenged saying that they were surrounded by the police if they would fire they would be killed. Two fire to spread light, were made by Daroga and with the help of public witness, five dacoits were apprehended, the search on persons of apprehended dacoits were made by the police, three dacoits were managed to escape three pistols, a knife, a battle axe and few cartridges were recovered from their possession. All the recovered articles were sealed on spot and recovery memo Ex. Ka-1 was prepared which was signed by him after hearing being readover to him. The police took the apprehended accused and recovered articles to police station and the witnesses proceed towards their homes, the incident is of 1:00 am. In cross examination he stated that what article was recovered from which accused cannot be explained by him because it was a dark night the witness was unable to identify the miscreants and is still unable to identify them present in Court.

PW-5 Suryadev Rai is the informant of the case who stated on oath on March 29, 1984 that on 10.07.1983 he was posted as S.O. Raunapar on that day he was busy in looking after the beat and in search of wanted accused persons related to crime number 65 under section 392 and 397 of IPC through Mathalpur Ghat, he reached at trijection of Sahanepur embankment it was half passed 9:00 pm the S.O. of Dohrighat reached there along with their companion Satyanarain Yadav, they had some talks amongst them. In the meantime informer gave information that he had come to know that at the house of Kedar Singh of Hazipur it would be dacoity and dacoits would be collected in the grove of Keshav Singh near about the midnight. Then they reached at Primary School, Hazipur it was half passed 10:00 pm he sent sepoi to obtain witnesses after some time the sepoi returned along with public witnesses then he explained his purpose of their gathering there and sent two sepoi near the house of Kedar Singh along with firearms for safety purposes and formed three parties and reached near the place where bandits were about to collect, he inspected the spot and positioned three parties at separate placed, it was 12:00 o’clock in the night after half and hour from eastern side five persons came and sat in grove, thereafter some time three additional bandits reached there and sat down and started exchanging talks they were saying that still there some aides had not reached, their waiting would be worthless they would go for dacoity and stood up then they believed that it was the gang of dacoits and challenged the dacoits to surrender. VLP fire was made to spread light and in the light of VLP fire five accused were apprehended. Three accused managed to escape from the scene. The name and address were inquired from the apprehended accused and their search was made. From the possession of Satiram a country made pistol and five cartridges including three live and two empty cartridges and a torch, from the possession of Shreebal a pistol and four cartridges (two live and two empty) and a torch. From the possession of accused Dharmdeo a pistol and four cartridges (three live and one empty cartridges) from the possession of Shobhi a Rampuri knife and from the possession of Ramadhar a battle axe were recovered. The recovered weapons were concealed and its memo was prepared in his signature and writing and the signature and thumb impression of other witnesses and accused persons were obtained. The witness identified that paper as Ex. Ka-1. He took the miscreants to police station and lodged in lockup on the basis of that a chick FIR was scribed by head constable Lal Bahadur which is in his under his signature. He was his subordinate due to which he observed him writing and reading identifying the same he proved it as the chick FIR as Ex. Ka-2. All the weapons recovered in the intervening night of incident are present before him in court, the investigating officer has interrogate him in the case.

PW-6 Girish Dutt Misra in his statement dated 24.08.1984 stated to have posted at police station Raunapar in the year of 1983 as Sub-Inspector, he received the information of the case. Started it on 10.07.1983 he interrogated the accused persons who were in lock-up of police station on 12.07.1983 he recorded the statement of Suryadeo Rai and his accompanying constables, the witnesses of recovery memo Kamla Singh, Ramadhar, he also recorded the statement of Kedar Singh, thereafter he proceeded to the place of occurrence. Prepared the spot map which consists his signature and proved it as Ex. K-3, thereafter he reached at police station Dohri Ghat and recorded the statement of Station Officer Ram Narain Yadav and other constables on 14.07.1983. He recorded the statement of Hari Narain Singh and company constables at police station Raunapar on 18.07.1983, he recorded the statement of S.I. Nisar Ahmad Khan and witness Ramadhar on 06.08.1983 recorded the statement of public witness Brahmchari Singh and submitted the chargesheet under section 399, 402 of Indian Penal Code against accused persons which is under his signature and writing and proved it as Ex. Ka-4. He submitted charge-sheet under section 25 of Arms Act against accused Sati Ram @ Satti, Shreebal, Dharam Deo, Shobhi and Ramadhar under his writing and signature, he identified these chargesheets as Ex.Ka-5 to Ex. Ka-9. He sent Ex. Ka-5, 6 and 7 to District Magistrate for obtaining prosecution sanctioned and after receiving the prosecution sanctioned he filed it before court the prosecution sanctioned papers proved by this witness as Ex. Ka-10, 11 and 12. On 13.08.1985 he seen the torches of witnesses and after preparation of supurdaginama handed over these to them. He proved that as Ex. Ka-13.

Learned amicus curiae submitted that according to examination-in-chief of PW-1 formed three parties at primary school Hazipur while PW-2 states that three police parties were formed in the grove. PW-3 states that police party was formed at primary school. According to PW-4, police were divided into three parties at aforesaid school. According to statement of PW-5 police party were formed at school. Obviously out of these five witnesses, four witnesses states that police parties were formed at primary school while one witness PW-2 states that police parties was formed at grove if PW-2 would have present in police party his statement would be similarly to statement of other witnesses in this regard meaning thereby this witness was not present along with present police personnel as a member of any of police party. He further submitted that according to PW-2, he had torch and licensed gun but the presence of licenced gun to have PW-2 has not come in the statement of any of other witnesses. He further states that after thorough perusal of statements of ocular witnesses PW-1, PW-5 and PW-6 the government witnesses has stated that they apprehended the accused persons nothing in their statement to show that there was any assistance of public witness in apprehending the accused persons except their presence as public witness while PW-2 and PW-3 states the active participation in apprehending the accused persons. Apart from that PW-2 could not identify the accused persons in court saying that he has not seen them prior to that he was unaware about them, had these witnesses remained present there, the light was spread with the help of VlP fire and in that light the accused persons were apprehended, this witness would have sufficient opportunity to observing the identity of the accused persons, thereafter it cannot be state that this witness was present at the place and time of incident. Accordingly, his presence at the place of occurrence becomes doubtful. According to statement of PW-4 he is unable to explained that what article was recovered from which accused and if such a witness was present at the place of occurrence and in his presence proceeding of apprehending the search of accused persons and preparation of recovery memo was completed before the eyes of this witness, certainly this witness would have specific knowledge about it. Accordingly the presence of this witness at the place and time of occurrence is also doubtful. Learned Amicus Curiae further submitted that it is stated by all the witnesses corroborating the recovery memo that three miscreants managed to escape but nothing in the statement of any of witnesses that the police party including informant, the leader of first party or leaders of other parties had interrogated about the identity of absconded bandits, even the investigating officer also did not pay heed to interrogate in this direction. The behaviour of police personnels including investigating officer establish the prosecution story a bundle of false. Learned amicus curiae next submitted that from the possession of Sati Ram, Shreebal and Dharam Deo 5, 4, 4 cartridges were recovered and out of those recovered cartridges, two cartridge recovered from Satiram were misfired, one cartridge out of four recovered from the possession of Shreebal was misfired and one out of four cartridges recovered from the possession of Dharam Deo was also misfired. It is matter of common prudence that the persons belonging to gang of dacoits going for committing dacoity cannot keep misfired cartridges with them having a valid apprehension that the misfired cartridges would put them in danger in other words keeping misfired cartridges with them amounts to self suicide by them and no person having common prudence can behave like. Nothing a single word in the statement of any of witnesses has come to show that any of accused person opened fire aiming at the police party at the place and time of occurrence meaning thereby those misfired cartridges were being carried by bandits from the very beginning of their preparation for dacoity and such facts do not transpire the confidence in prosecution story.

Learned Amicus Curiae further submitted that the informant of the case is Mr. Suryadev Rai, S.O. Police Station Raunapar meaning thereby all the police personnel posted at police station Raunapar at the time being where under subordination to the then S.O. Suryadev Rai, Suryadev Rai, the Station Officer Raunapar is informant of the case under section 25 of Arms Act against all so called bandits including deceased appellant and such case was investigated by Girish Dutt Mishra the Sub Inspector posted in Police Station Raunapar at that time meaning thereby the Investigating Officer of all five cases under section 25 of Arms Act were investigated by a subordinate officer to informant of the case which vitiates the investigation.

This Court in Raghuvir and others Vs. State of U.P., 1996 Allahabad Law Journal 551, in para 18 has observed as under:

Lastly the learned Amicus Curiae submitted that through the evidence of PW-3, PW-4 and PW-5 the time of occurrence differs grossly. In the statement of PW-3 dated 09.03.1984 he has stated the incident to be of ten months old, according to his statement time of incident reveals to be of 09.05.1983 while the incident is said to be of 09.07.1983. Similarly in the statement of PW-4 dated 22.03.1984 he states that the incident is of one year old meaning thereby according to statement of this witness the incident took place in the month of March of 1983 and lastly the most important is submission of PW-5, the informant of the case. According to his statement he was posted on 10.07.1983 at police station Raunapar District Azamgarh and was indulging in looking his area at 9:00 pm. He met station officer Dohri Ghat and was exchanging talks, in the meantime the informer informed about the apprehension of incident. Then they reached on spot after forming three parties calling the public witness took their position at 12:00 o’clock and after half an hour five bandits entered into the said place of occurrence, the grove of Keshav Singh of Hazipur meaning thereby the above noted five bandits entered into aforesaid grove at 12:30 am on 11.07.1983 while the first information is of 10.07.1983 meaning thereby the first information report lodged before the incident took place.

It is thus contended by learned Amicus Curiae that in the aforesaid premise the appellant nos. 1, 2 and 5 are entitled to be acquitted of charges under section 399/402 IPC and Section 25 of Arms Act levelled against them.

Per contra learned AGA submitted that, during the course of arguments, learned Amicus Curiae has pointed out some minor discrepancies in the statement of ocular witnesses. However, such minor discrepancies would not come in the way of prosecution as major hurdle. The Court may move forward overlooking such minor discrepancies. Learned AGA further submitted that if a witness was unable to explain accurately that what article was recovered from which bandit for the reasons of lapse of a long time, it does not amount his absence from place and time of occurrence.

Learned AGA further submitted that learned Amicus Curiae has tried to show some contradictions, inter alia the statement of witnesses which is not permissible in the norms of evidence. In normal standard of evidence the veracity of statement of any witness can be tested separate without being influenced by the statement of any other witness meaning thereby the statement of any witness can be assessed in the light of contradictions came in his own evidence. So such contradictions shows by learned Amicus Curiae cannot be regarded by this Court.

Having heard the rival submissions and upon perusal of record, this Court is of the considered view that the time of occurrence in the matter is very relevant. As per the FIR version the incident is said to be of 1:00 am in the intervening night of 9/10 July, 1983 but as per statement of informant before court the time of occurrence is intervening night of 10/11 July, 1983. Similarly as per statement of PW-3 the incident is of intervening night in the month of May 1983 while according to statement of PW-4 it was the month of March 1983 when incident took place. Only PW-1 has stated the incident in the intervening night of 9/10 July, 1983. These substantial variations in the statements of the prosecution witnesses regarding the date and time of the alleged occurrence give rise to serious inconsistencies in the prosecution case and cast considerable doubt on the reliability of its version.

Secondly according to FIR version in the intervening night of incident at first 5 bandits entered into grove of Keshav Singh thereafter some other miscreants also entered into grove. Somewhere the number of bandits entered later into grove has been expressed as three. According to FIR version the statement of all the ocular witnesses except apprehended five bandits other bandits managed to escape from the scene, taking the benefit of odd hour but neither informant nor any police personnel or public witnesses tried to inquired about the identity of escape miscreants. Not only this the investigating officer also did not try to know that who were those bandits who managed to escape from the scene.

It is also remarkable in the matter that Mr. Suryadev Rai, Station Officer, Raunapar is the informant of the case and Mr. Girish Dutt Mishra the Sub Inspector posted in that very Police Station under subordination of informant Suryadev Rai conducted the investigation of case under sections 399 and 402 IPC along with cases under section 25 of Arms Act against all accused persons. According to finding of this Court in Raghuvir (supra) case the investigation regarding offience under section 25 of Arms Act done by sub-ordinate to the informant vitiates and no conviction can be recorded in the matter. In my view such principle must be extended to other offences too. Accordingly, for the reasons of foregoing discussions, this Court finds that the investigation of entire case was vitiated and major discrepancies present on record in prosecution evidence. It is also remarkable in the matter that as per prosecution story and examination-in-chief of all the factual witnesses the police party apprehended five persons and recovered three pistols, 13 cartridges (four misfired and 9 live cartridges) one knife and one battle-axe but none of these articles has been identified in Court by any ocular witnesses because at the relevant time of statement of ocular witnesses those articles were not produced in Court. Those articles were only produced in Court when the Investigating Officer was being examined, therefore, the recovery of aforesaid articles is also becomes doubtful. In the facts and circumstances of the case, no appellants should be held liable for any above noted offence. The submissions urged by the learned Amicus Curiae accordingly held to be valuable.

In the light of above discussion, this Court finds that the present criminal appeal deserves to be allowed. Accordingly, the impugned judgment of conviction and order of sentence are liable to be set aside, and the surviving appellants are entitled to be acquitted of all the charges levelled against them.

According, the present criminal Appeal is hereby allowed. The judgment and order dated 19.09.1984 passed by the learned 4 Sessions Judge, Azamgarh is hereby set aside. The surviving appellant nos. 1, 2 and 5 namely Sati Ram @ Satti, Shreebal and Ram Adhar respectively acquitted of charges under section 399 and 402 IPC and 25 Arms Act.

The appellants are on bail. Their bail bonds are hereby cancelled and their sureties are hereby discharged from their respective liabilities. The surviving appellants are directed to file bonds under section 437 A of Criminal Procedure Code before trial court within two weeks from the date of this judgment to the satisfaction of trial court concerned.

Let a copy of this judgment be transmitted forthwith to the trial court for information and necessary compliance.

The learned Amicus Curiae shall be entitled to receive a fee of Rs. 15,000/- which shall be paid expeditiously.

The lower court record shall be returned to the court concerned forthwith.