Mewaram Vs. State of U.P - Court Judgment

SooperKanoon Citationsooperkanoon.com/476305
SubjectCriminal
CourtAllahabad High Court
Decided OnFeb-05-1988
JudgeA.N. Dikshita, J.
Reported in1988CriLJ1215
AppellantMewaram
RespondentState of U.P
Excerpt:
- - 7. having gone through the record and after hearing the learned counsel for the appellant and the learned state counsel i have come to the conclusion that the prosecution has failed to prove its case against the appellant and he is entitled to be acquitted. the testimony of this witness is thoroughly unreliable and must be discarded. in view of the fact that this witness failed to identify his watch and further that such watch was available in the market it could not be said that the watch recovered from the appellant was stolen property.a.n. dikshita, j.1. this appeal has been filed by mewa ram against the judgment and order dated 26-3-1979 passed by the ii additional sessions judge, shahjahanpur, convicting him under section 411,i.p.c.and sentencing him to two years' r.i.2. the prosecution story, in brief, is as follows: on 15-6-1978 munney khan,.driver of truck no. usw 1030 was transporting sugarcane from banthara gana centre to roza sugar factory. when he reached on the pucca road he noticed a tanker standing there. he also noticed four miscreants standing near the tanker two of whom were having single barrel guns. after looting the tanker they rushed towards truck no. usw 1030, stopped it and relieved the cleaner of the truck of rs. 6/- and an angocha. immediately thereafter another truck no. usp 6969 also arrived there and its driver brij lal and two occupants akhil kumar and vinod kumar were also looted by the said four miscreants. after the departure of the miscreants the driver of the tanker no. use 5950 mohd. mian told munney khan that the miscreants had looted away his wrist watch and a sum of rs. 1.25/-, brij lal, driver of truck no. usp 6969 informed munney khan that he had been robbed of rs. 1976 while akhil kumar who was also sitting in the truck was relieved of his watch. the incident took place at about 7.00 p.m.3. a report of the incident was lodged by munney khan on 15-64978 at about 7.45 p.m., the police station being at a distance of about 9 miles from the place of occurrence.4. the investigation of the case was entrusted to s.i. jamal ahmad khan, p.w. 4. during the course of investigation mewaram appellant was intercepted on 23-6-1978 and a:watch was recovered from his possession which was sealed. a country made pistol and some cartridges were also recovered from his person for which another memo was prepared. after the investigation was completed a chargesheet was submitted against the appellant mewa ram and one jhamman.5. in support of its case the prosecution examined munney khan, p.w. 1, atul kumar, p.w. 2, brij lal, p.w. 3, s.i. jamal ahmed khan, p.w. 4, ashfaq, p.w. 5, and chhichoo, p.w. 6. mohd. mian whose watch was robbed was examined as c.w. 1.6. the trial court after examining the evidence on record came to the conclusion that jhamman, co-accused, was not guilty of the offence charged and accordingly acquitted him, but found the appellant mewa ram guilty under section 411, i.p.c. instead of sections 392/397, i.p.c. and convicting him thereunder sentenced him to two years' r.i.7. having gone through the record and after hearing the learned counsel for the appellant and the learned state counsel i have come to the conclusion that the prosecution has failed to prove its case against the appellant and he is entitled to be acquitted.8. munney khan, p.w. 1, testified that he lodged the first information report. in his statement before the court he nowhere stated that the watch of mohd. mian, driver of tanker no. use 5959, was also looted though this fact finds mention in the report lodged by him. his non-mention of the watch in his statement assumes significance when we find that mohd. mian himself was not examined by the prosecution but he was summoned by the court. beyond narrating the incident and stating that four miscreants had looted him and others, this witness could not point out that mewa ram appellant was one of the miscreants. his testimony cannot be held to be sufficient to warrant conviction and hence has to be discarded.9. atul kumar, p.w. 2, stated that his titus watch was also taken away by the miscreants but no such watch was recovered from the appellant. it is also clear from his statement that after having a look at the accused persons present in court he admitted that they were not amongst the miscreants. he also admitted that he could not say as to whom he had identified in jail. he further admitted in cross-examination that in the jail he had identified the accused as his hand suddenly fell on him. the testimony of this witness is thoroughly unreliable and must be discarded.10. brij lal, p.w. 3, simply stated that the miscreants had looted his rs. 1976/- and thereafter they had run away. this witness has not stated about the looting of other trucks or that he had stated about his money being looted to munney khan, p.w. 1, who lodged the report. it appears that he came forward only to support the prosecution version as given out by munney khan, p.w. 1. his testimony cannot be implicitly relied upon for recording conviction against the appellant.11. jamal ahmad khan, p.w. 4, investigated the case and is not a witness of incident. he stated that on 23-6-1978 he had gone to salimabad in connection with the investigation of the case.he saw the appellant coming but after seeing the police the appellant started running. after a chase the appellant was arrested and a watch was recovered from his possession. the arrest of the appellant on 23-6-1978 has been challenged. there is on record a telegram dated 21-6-1978 addressed to the district magistrate by ram bharose, father of the appellant, stating that his two sons mewa ram (appellant) and ram pal had, been arrested by the police on 20-6-1978 and he apprehended that they might be implicated in some case. the suggestion on behalf of the defence that the appellant was arrested from his house on 20-6-1978 has been denied by this witness. however, the arrest of the appellant on 23-6-1978 in the manner stated by this witness becomes doubtful. it might also be mentioned that the watch alleged to have been recovered from the appellant was retained at the police station for about three months before sending it to sadar malkhana. there is no explanation on behalf of the prosecution for this lapse. the testimony of jamal ahmad khan, p.w. 4, does not inspire confidence and has to be discarded.12. ashfaq, p.w. 5 and chhichoo, p.w. 6, were examined to support the version given by jamal ahmad khan, s.i., p.w. 4, regarding the arrest of the appellant on 23-6-1978. the arrest of the appellant in this manner stated by the investigating officer has already been held to be doubtful and as such these witnesses also cannot be implicitly relied upon. the evidence given by these witnesses is also not of any help to the prosecution.13. now coming to the testimony of mohd. mian, c.w. 1, it is significant to note that he could not tell the name of the person from whom he purchased the watch though he stated that he had purchased it from a driver in varanasi for rs. 60/-, and the watch was tressa make. he could not identify his watch during identification proceedings. he admitted that his watch was not of any special make and was available in the market. he admitted that he had no receipt for the watch. in view of the fact that this witness failed to identify his watch and further that such watch was available in the market it could not be said that the watch recovered from the appellant was stolen property. the statement of mohd mian, c.w. 1, does not conclusively prove the charge under section 411 i.p.c. against the appellant. the conviction of the appellant under section 411 i.p.c. is, therefore, liable to be set aside.14. in the result the appeal is allowed and the conviction and sentence of the appellant are set aside, and he is acquitted. he is on bail and he need not surrender. the bail bonds, are discharged.
Judgment:

A.N. Dikshita, J.

1. This appeal has been filed by Mewa Ram against the judgment and order dated 26-3-1979 passed by the II Additional Sessions Judge, Shahjahanpur, convicting him under Section 411,I.P.C.and sentencing him to two years' R.I.

2. The prosecution story, in brief, is as follows: On 15-6-1978 Munney Khan,.driver of truck No. USW 1030 was transporting sugarcane from Banthara Gana Centre to Roza Sugar Factory. When he reached on the pucca road he noticed a tanker standing there. He also noticed four miscreants standing near the tanker two of whom were having single barrel guns. After looting the tanker they rushed towards truck No. USW 1030, stopped it and relieved the cleaner of the truck of Rs. 6/- and an Angocha. Immediately thereafter another truck No. USP 6969 also arrived there and its driver Brij Lal and two occupants Akhil Kumar and Vinod Kumar were also looted by the said four miscreants. After the departure of the miscreants the driver of the tanker No. USE 5950 Mohd. Mian told Munney Khan that the miscreants had looted away his wrist watch and a sum of Rs. 1.25/-, Brij Lal, driver of truck No. USP 6969 informed Munney Khan that he had been robbed of Rs. 1976 while Akhil Kumar who was also sitting in the truck was relieved of his watch. The incident took place at about 7.00 P.M.

3. A report of the incident was lodged by Munney Khan on 15-64978 at about 7.45 P.M., the police station being at a distance of about 9 miles from the place of occurrence.

4. The investigation of the case was entrusted to S.I. Jamal Ahmad Khan, P.W. 4. During the course of investigation MewaRam appellant was intercepted on 23-6-1978 and a:watch was recovered from his possession which was sealed. A country made pistol and some cartridges were also recovered from his person for which another memo was prepared. After the investigation was completed a chargesheet was submitted against the appellant Mewa Ram and one Jhamman.

5. In support of its case the prosecution examined Munney Khan, P.W. 1, Atul Kumar, P.W. 2, Brij Lal, P.W. 3, S.I. Jamal Ahmed Khan, P.W. 4, Ashfaq, P.W. 5, and Chhichoo, P.W. 6. Mohd. Mian whose watch was robbed was examined as C.W. 1.

6. The trial Court after examining the evidence on record came to the conclusion that Jhamman, co-accused, was not guilty of the offence charged and accordingly acquitted him, but found the appellant Mewa Ram guilty under Section 411, I.P.C. instead of Sections 392/397, I.P.C. and convicting him thereunder sentenced him to two years' R.I.

7. Having gone through the record and after hearing the learned Counsel for the appellant and the learned State counsel I have come to the conclusion that the prosecution has failed to prove its case against the appellant and he is entitled to be acquitted.

8. Munney Khan, P.W. 1, testified that he lodged the first information report. In his statement before the Court he nowhere stated that the watch of Mohd. Mian, driver of tanker No. USE 5959, was also looted though this fact finds mention in the report lodged by him. His non-mention of the watch in his statement assumes significance when we find that Mohd. Mian himself was not examined by the prosecution but he was summoned by the Court. Beyond narrating the incident and stating that four miscreants had looted him and others, this witness could not point out that Mewa Ram appellant was one of the miscreants. His testimony cannot be held to be sufficient to warrant conviction and hence has to be discarded.

9. Atul Kumar, P.W. 2, stated that his Titus watch was also taken away by the miscreants but no such watch was recovered from the appellant. It is also clear from his statement that after having a look at the accused persons present in Court he admitted that they were not amongst the miscreants. He also admitted that he could not say as to whom he had identified in jail. He further admitted in cross-examination that in the jail he had identified the accused as his hand suddenly fell on him. The testimony of this witness is thoroughly unreliable and must be discarded.

10. Brij Lal, P.W. 3, simply stated that the miscreants had looted his Rs. 1976/- and thereafter they had run away. This witness has not stated about the looting of other trucks or that he had stated about his money being looted to Munney Khan, P.W. 1, who lodged the report. It appears that he came forward only to support the prosecution version as given out by Munney Khan, P.W. 1. His testimony cannot be implicitly relied upon for recording conviction against the appellant.

11. Jamal Ahmad Khan, P.W. 4, investigated the case and is not a witness of incident. He stated that on 23-6-1978 he had gone to Salimabad in connection with the investigation of the case.He saw the appellant coming but after seeing the police the appellant started running. After a chase the appellant was arrested and a watch was recovered from his possession. The arrest of the appellant on 23-6-1978 has been challenged. There is on record a telegram dated 21-6-1978 addressed to the District Magistrate by Ram Bharose, father of the appellant, stating that his two sons Mewa Ram (appellant) and Ram Pal had, been arrested by the police on 20-6-1978 and he apprehended that they might be implicated in some case. The suggestion on behalf of the defence that the appellant was arrested from his house on 20-6-1978 has been denied by this witness. However, the arrest of the appellant on 23-6-1978 in the manner stated by this witness becomes doubtful. It might also be mentioned that the watch alleged to have been recovered from the appellant was retained at the police station for about three months before sending it to Sadar Malkhana. There is no explanation on behalf of the prosecution for this lapse. The testimony of Jamal Ahmad Khan, P.W. 4, does not inspire confidence and has to be discarded.

12. Ashfaq, P.W. 5 and Chhichoo, P.W. 6, were examined to support the version given by Jamal Ahmad Khan, S.I., P.W. 4, regarding the arrest of the appellant on 23-6-1978. The arrest of the appellant in this manner stated by the investigating officer has already been held to be doubtful and as such these witnesses also cannot be implicitly relied upon. The evidence given by these witnesses is also not of any help to the prosecution.

13. Now coming to the testimony of Mohd. Mian, C.W. 1, it is significant to note that he could not tell the name of the person from whom he purchased the watch though he stated that he had purchased it from a driver in Varanasi for Rs. 60/-, and the watch was Tressa make. He could not identify his watch during identification proceedings. He admitted that his watch was not of any special make and was available in the market. He admitted that he had no receipt for the watch. In view of the fact that this witness failed to identify his watch and further that such watch was available in the market it could not be said that the watch recovered from the appellant was stolen property. The statement of Mohd Mian, C.W. 1, does not conclusively prove the charge under Section 411 I.P.C. against the appellant. The conviction of the appellant under Section 411 I.P.C. is, therefore, liable to be set aside.

14. In the result the appeal is allowed and the conviction and sentence of the appellant are set aside, and he is acquitted. He is on bail and he need not surrender. The bail bonds, are discharged.