Judgment:
Vinod Shanker Dave, J.
1. This appeal against the acquittal is directed against the judgment, dated January 31, 1984 of Addl. Sessions Judge No 1, Bharatpur acquitting the accused-respondents of offence under Sections 399 and 402 IPC.
2. The four accused-respondents were tried by Addl. Sessions Judge No. 1, Bharatpur in a case where according to the prosecution Shri Ram Chandra Yadav, Station House Officer, Police Station, Roopvas along with police party, on an information received from an informant, went to Kalapatta hillock at 11 00 p m. and he saw 5-6 miscreants standing there. They were surrounded by the police force taken by the Station House Officer along with him. Seeing the police force the miscreants started running hence the Station House Officer threw torch light and fired on them. They stood up with their hands up and the others made their escape good. It is then alleged that the S.H O recovered one country made Pistol from Rambaboo with two live cartridges, one country made pistol with four cartridges from Pramod Kumar, one knife from Pappu and one lathi from Bobby. The documents were prepared and meanhile a literate constable was sent to the police station for lodging the report. After completing the investigation all the four accused-respondents were challaned in the court of Addl. Munsif and Judicial Magistrate, Bayana for offence under Sections 399 and 402 IPC and Section 3 read with Section 25 of the Arms Act. The accused were committed to Sessions and were tried by Addl. Sessions Judge No. 1, Bharatpur. At trial the prosecution examined 7 witnesses in support of its case. The accused denied the prosecution story and came with a plea that Pramod Kumar and Rambaboo used to serve in Bombay and had come on holidays. Pappu and Bobby asked them that they should also be taken to Bombay where they will serve, hence all of them were going to Bombay with certain money in their pockets and when they got down at Roopvas station for taking water they were apprehended. They were holding the railway tickets upto Kota which had also been taken. It is also also alleged that they had been kept in wrongful detention for 18 days. This case was registered after 18 days. They however, did not lead any defence evidence.
3. The learned Addl. Sessions Judge after going through the entire evidence and discussing it disbelieved the prosecution story. The learned Judge accepted the defence version particularly because there were lot of contradictions in the statements of the prosecution witnesses and the conduct of the Sub Inspector of police was not found to be proper. The learned Judge passed structures against the Investigating Officer and went to the extent of holding that the Investigating Officer has committed offence under Sections 193, 342, 466, 477 and 477A IPC but he however, refrained from issuing notice and instead gave him a notice why he should not be asked to pay damages to all the four accused persons and he said that Rs. 1000/- may be given to each of the accused, namely, Rambaboo, Pappu and Bobby and Rs. 2000/- to Pramod Kumar. But later on he revised his opinion in view of Section 358 Cr.PC and reduced the amount to Rs. 100/- each. The learned Judge also expressed a hope that if this matter is brought to the notice of the High Court possibly social justice will better be given to the accused persons.
4. Before I deal with the evidence in the case it is purposeful for me to mention that this appeal has to be decided in the light of law laid down by their Lordships of the Supreme Court in Ediga Sanjanna and Ors v. The State of Andhra Pradesh: : 1973CriLJ563 and Babu and Ors v. State of Uttar Pradesh: : 1983CriLJ334 where in their Lordships of the Supreme Court have held that 'the appellate court, while considering an appeal against acquittal should be slow to interfere with that order and should not interfere even if two views of the same evidence can be taken' and it is in this light that I will be discussing the evidence in the case. In fact in this case both the parties have come with positive stories. The prosecution has come with a case that the Sub-Inspector of police on receiving an information from an informant went to a hillock named as Kalapatta where there are mines and apprehended the accused from that place, while according to the defence all the four were going to Bombay and while they got down at Roopavas station for drinking water they were detained by the SHO. Their case is that their money was snatched without making a record and when they raised the protest then false case of preparation for dacoity was made and all these arms and ammunitions were attributed to them which infact had not been recovered from them. It is pertinent to mention here that all the accused persons were of tender age at the time when they were apprehended. They have given their ages as 15 and 16 in the charge which was read over to them and the learned Judge had mentioned it to be about 18 years. PW 1 Durga Prasad is a Govt. servant who had been taken as a motbir. He states that at 10 00 in the night he was taken from the way by the Sub-Inspector of Police to the Kalapatta hillock. There the four persons were apprehended who gave out their names to be Rambaboo, Pramod Kumar, Pappu and Bobby Rambaboo and Pramod Kumar were having Kattas while Pappu was having Lathi while Bobby also had Lathi. Ammunition is also alleged to have been recovered from them. When cross examined this witness stated that he did mention to the police that two persons had run away but the police might not have taken down the same. He has further stated that he cannot say whether all the accused were arrested simultaneously or at different times because when he and Parasram reached near the accused they were already in police custody. He says that the documents were prepared in the candle light on the spot and they were also sealed there also. He however, stated that though the names were given out in his presence by the accused he cannot identify them by name in the Court. He further states that he is also unable to say as to from which accused which goods have been recovered. PW 2 Harish Chandra is head constable who had examined the Kattas One of the striking feature in his cross-examination is that he did not see whether the Kattas, i.e., the country made pistols, were serviceable or not. Parsaram PW 3 is another motbir who was taken along with the police party. He virtually states what has been stated by PW 1 in his examination-in-chief. But in his Cross-examination he stated that he could not identify any accused by name though the names were given in his presence. He states that he cannot say whether the accused attempted to run away when they were encircled. He states that he and Durga Prasad were at a distance of half a field when the recovery was made. He states that the documents were prepared in the torch light. He however, does not remember whether any search of the accused was taken or not. PW 4 is an ASI of police station, Roopvas who also accompanied the police party. He has admitted in his strtement that he cannot tell as to from which of the accused what particular weapon of offence had been recovered. He also admits that in his presence no informant gave information to the Sub-Inspector of Police. According to him the accused were arrested at 1.00 in the night and one hour was taken in preparing the documents. He ruled out the story given by the accused though put to him in cross-examination. Nihal Singh PW 5 is also an employee of the police station who too has supported the prosecution story completely in examination-in-chief. However there are some contradictions in his cross-examination. He also denied the story given by the prosecution, so is PW 6 Hari Singh. Hari Singh is the person who had also gone to the police station and lodged a report. This report according to him was taken down at 11.55. He however, stated that if he is asked to point out the accused by his name it is not possible for him to do so. He has also stated that he cannot say as to which of the weapon was recovered from which particular accused. He has denied the story given by accused. PW 7 Ramchander is the crucial witness who has given the details of the incident in which the accused then apprehended. He has been cross examined at a great length and it is true that weakness in the investigation could be brought out from his investigation. It appears that he was lesser careful in preparing the documents and was over enthusiastic in apprehending the accused-appellants. There is also a contradiction in his statement about Eastern side and Western side of the mines where the accused were apprehended and he has also faulered about the recovery of arms and ammunitions. He has also denied the story given by the accused. This is the total prosecution evidence.
5. The accused had come with a positive case as a mentioned above but have not led evidence. None of the family member of the accused had come forward in defence to say that they had left for Bombay with a particular amount in their pocket on that day. Attempt has also not been made to call for the Rojnamcha of the GRP within whose jurisdiction they have been arrested hence they failed to substantiate the defence they have raised. How ever, equally faulty is the investigation in this case and the prosecution also made latches in properly preparing the documents of the recovery of the arms and ammunition and may be deliberate or by lapse of memory that the witnesses could neither point out that the accused by name nor could say as to which weapon of offence has been recovered from which particular accused. Had the care been taken at the time of investigation in mentioning the details in the memos prepared possibly the discrepancies could have been avoided. It cannot be said that the prosecution story is absolutely fake and false. There appeares to be some truth in what the prosecution witnesses have said. But in an appeal against acquittal as I have already mentioned above, if two views of the matter can be held then no interference should be made.
6. In the instant case the accused persons were of tender age and might or might not have made some preparation for committing some crime but it has proved abortive and their prosecution must have given the same lesson. Even, otherwise when the accused had given their age as 15 and 16 years at the time of charge if they had not completed that age, an inquiry should have been made that they should have been tried by Children Court or by regular criminal court. Looking to all theses facts and circumstances I am not inclined to interfere with the order of acquittal. However, I would like to observe that whatever the learned Sessions Judge has said about the Investigating Officer and the prosecution witnesses is also not worthy of approval. Evidence in the case is not such which warranted the structures against the Investigating Officer and the defence story which had been accepted by the learned Sessions Judge is also not such which could have been accepted ex facio without there being any material to support the same. There is not even a single witness on behalf of the defence who might have appeared and said that the accused were missing from their house for 18 says prior to the date of their arrest. Even if this evidence could have been brought there could have been some preponderance of probability in the defence. Be that as it may, suffice it to say that nothing adverse to the Investigating Officer in the trial Court judgment would be read against him for his service record and the order of the learned Judge awarding damages to the accused is also set aside.
7. As a result of the aforesaid discussion, I partly allow this appeal, set aside the part of the judgment by which he directed the SHO, police station, Roopvas to pay Rs. 100/- to each of the accused but maintain the order of acquittal. The three accused-respondents, namely, Rambaboo, Pappu and Pramod Kumar were summoned by bailable warrants, therefore, their bail bonds shall stand discharged. Regarding accused Boby he is said to be in jail in some other case, hence a copy of this judgment be sent to Superintendent Central Jail, Jaipur in pursuance of his letter No. 2886, dated 23-5-1985.