# Jauhari & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-08-30
- **Case number:** Criminal Appeal No. 616 of 1982
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jauhari-ors-in-jail-v-state-of-u-p-44341
- **Pages:** 19

## Headnote

A. Indian Penal Code, 1860 - Sections
399 - making preparations to commit
dacoity - Section 402 -assembling to
commit dacoity- Section 307 IPC -
Attempt to murder- Sections 25 and 27
of the Arms Act, 1959 - criminal appeal -
The recovery of fire arms from the
appellant and his companions is not
established,
or
the
credit
of
the
independent public witnesses - in the
circumstances of an area, that is afflicted
by dacoity, the probability of a false
implication by the police in a case of
preparation to commit dacoity is far
stronger, where there is no convincing
and
tangible
evidence
aliunde
to
establish facts that are necessary to
prove a case of preparation - facts, in
the clear opinion of this Court, have far
from been proved. (Para 46)

B. Indian Evidence Act, 1872 - Section
114 - court may presume existence of
certain facts - place and manner of arrest
-mere consistency of witnesses would
not turn falsehood to truth. The evidence
even of eye witnesses, depending on the
nature of the offence, ought to be
corroborated by objective circumstances
-The
entries
in
the
General
Diary
regarding manner and place of arrest,
also cannot be held to prove what is
recorded there on a presumption under
Section 114 of the Evidence Act, which
the Trial Court has raised against the
accused,
and
then
held
it
to
be
unrebutted. (Para 27 & 30)

C. Code of criminal procedure 1973 -
Sections 51 and 100 - Search and
Seizure -Failure to obtain signatures of
the accused on the arrest-cum-recovery
memo, and furnishing its copy to the
appellant- no mandatory requirement of
providing a copy of the seizure memo to
the accused. (Para 35)
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:- The prosecution had nothing in hand
in the sense of tangible evidence, that may
lend some credit to the ocular testimony to
prove their case, except that they might have
found the appellants for the worst, assembled
at the place of occurrence - The prosecution
account has been held to be unbelievable
about the nature and place of occurrence -
The recovery of fire arms from the appellant
and his companions is not established, or the
credit of the independent public witnesses -
The entire story appears to be one where the
appellant has been framed - The Trial Court
appears to have believed the story because it
was a dacoity affected area - In the
circumstances of an area, that is afflicted by
dacoity, the probability of a false implication
by the police in a case of preparation to
commit dacoity is far stronger, where there is
no convincing and tangible evidence aliunde to
establish facts that are necessary to prove a
case of preparation. Those facts, in the clear
opinion of this Court, have far from been
proved - The prosecution has not been able to
establish
the
appellant's
guilt
beyond
reasonable doubt. (Para 46 & 47)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,979 of 60,784. This is a partial read: ask again with offset=39979 for what follows._

2 All. Jauhari & Ors. Vs Vs State of U.P.
193
contradiction between the statement of
injured
eye
witnesses
made
during
investigation and statement made during
trial; reasonable doubt regarding sharing
of common object by appellant Viresh as
a member of unlawful assembly or having
knowledge of any such common object,
have created serious doubts in the
prosecution case as against the sole
surviving appellant which entitles the
surviving appellant (Viresh) the benefit of
doubt. He is therefore entitled to be
acquitted of all the charges levelled
against him. The judgment and order
passed by the Special Judge, Moradabad
in Session Trial No. 586 of 1988 is hereby
set aside. Consequently, the appeal is
allowed. The appellant, if on bail need
not surrender.

41. Let a copy of this judgment be
sent to Trial court for information and
immediate
compliance.
Compliance
report whereof be submitted within one
month.

42. Lower court's record be also sent
back along with a copy of this judgment.
----------

(2019)10ILR A 193

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2018

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 616 of 1982

Jauhari & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri G.S. Hajela, Sri Ajay Kumar Srivastava,
Sri S.A.N. Shah.

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Sections
399 - making preparations to commit
dacoity - Section 402 -assembling to
commit dacoity- Section 307 IPC -
Attempt to murder- Sections 25 and 27
of the Arms Act, 1959 - criminal appeal -
The recovery of fire arms from the
appellant and his companions is not
established,
or
the
credit
of
the
independent public witnesses - in the
circumstances of an area, that is afflicted
by dacoity, the probability of a false
implication by the police in a case of
preparation to commit dacoity is far
stronger, where there is no convincing
and
tangible
evidence
aliunde
to
establish facts that are necessary to
prove a case of preparation - facts, in
the clear opinion of this Court, have far
from been proved. (Para 46)

B. Indian Evidence Act, 1872 - Section
114 - court may presume existence of
certain facts - place and manner of arrest
-mere consistency of witnesses would
not turn falsehood to truth. The evidence
even of eye witnesses, depending on the
nature of the offence, ought to be
corroborated by objective circumstances
-The
entries
in
the
General
Diary
regarding manner and place of arrest,
also cannot be held to prove what is
recorded there on a presumption under
Section 114 of the Evidence Act, which
the Trial Court has raised against the
accused,
and
then
held
it
to
be
unrebutted. (Para 27 & 30)

C. Code of criminal procedure 1973 -
Sections 51 and 100 - Search and
Seizure -Failure to obtain signatures of
the accused on the arrest-cum-recovery
memo, and furnishing its copy to the
appellant- no mandatory requirement of
providing a copy of the seizure memo to
the accused. (Para 35)
194 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:- The prosecution had nothing in hand
in the sense of tangible evidence, that may
lend some credit to the ocular testimony to
prove their case, except that they might have
found the appellants for the worst, assembled
at the place of occurrence - The prosecution
account has been held to be unbelievable
about the nature and place of occurrence -
The recovery of fire arms from the appellant
and his companions is not established, or the
credit of the independent public witnesses -
The entire story appears to be one where the
appellant has been framed - The Trial Court
appears to have believed the story because it
was a dacoity affected area - In the
circumstances of an area, that is afflicted by
dacoity, the probability of a false implication
by the police in a case of preparation to
commit dacoity is far stronger, where there is
no convincing and tangible evidence aliunde to
establish facts that are necessary to prove a
case of preparation. Those facts, in the clear
opinion of this Court, have far from been
proved - The prosecution has not been able to
establish
the
appellant's
guilt
beyond
reasonable doubt. (Para 46 & 47)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Shokat Abdul Aziz Vs St. (2018) 5 ALJ 261

2. Badam Singh Vs St. of U.P. (2003) 12 SCC 792

3. Mahadeo Vs St. 1990 CriLJ 858

4. St. of Punjab Vs Jagga Singh (1998) 7 SCC
214

5. Jaspal Singh Vs St. of Punj. 1998 (7) SCC
289

6. Dev Dutta & anr. Vs St. 2017 (1) ACR 604

7. Chaturi Yadav & ors. Vs St. of Bihar AIR
1976 SC 1412

(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal is directed against a
judgment and order of Sri Vikramaditya
Kulshreshth, the then Special Judge
(Dacoity Affected Areas), Farrukhabad,
dated 27.02.1982, passed in Special
Sessions Trial no.3 of 1982, State vs.
Jauhari and three others (arising out of
Case Crime no.430/81 and Case Crime
no.433/81), Police Station Kayamganj,
District
Farrukhabad,
convicting
the
appellants of offences punishable under
Sections 399, 402 IPC, Sections 25 and
27 of the Arms Act, and, sentencing them
on each count, in the following manner:

Sl. No.
Name of
accused
Under
Section
Imprison
ment

399 IPC 3
years
R.I.

402 IPC

3
years
R.I.

2
Jauhari,

Phool
Singh &

Ram
Prakash
399 IPC 4
years
R.I.
402 IPC 4
years
R.I.
27 Arms
Act
4
years
R.I.
25 Arms
Act
2
years
R.I.
All the sentences were ordered to run
concurrently.

2. Be it noted here that this appeal
that was filed jointly by Jauhari, Phool
Singh, Ram Prakash and Bhagwan Sahai,
survives to be heard at the instance of
appellant
no.2,
Phool
Singh
alone.
Appellants Jauhari, Ram Prakash and
Bhagwan Sahai, died pending appeal and
at their instance this appeal was ordered
2 All. Jauhari & Ors. Vs Vs State of U.P.
195
to
stand
abated
vide
order
dated
16.02.2016.

3. The prosecution commenced on a
recovery-cum-arrest
memo
dated
19.12.1981, on the basis of which a single
chik First Information Report giving rise
to four Case Crimes, bearing nos.:430 of
1981, under Sections 399, 402, 307 IPC,
431 of 1981, 432 of 1981, and, 433 of
1981, the last three all under Sections
25/27 of the Arms Act, were registered at
Police
Station
Kayamganj,
District
Farrukhabad. Case Crime no.430 of 1981
was registered against all the appellants,
Jauhari, Phool Singh, Ram Prakash and
Bhagwan Sahai, together, whereas Case
Crime nos.431 of 1981, 432 of 1981 and
433 of 1981, were registered separately
against Jauhari, Ram Prakash and Phool
Singh, in that order.

4. According to the prosecution
case, that originates in a description of the
occurrence carried in a memorandum
dated 19.12.1981 about encounter with
dacoits-cum-recovery of unlicensed fire
arms & ammunitions goes somewhat like
this. One Babu Lal Ojha, a Senior SubInspector of Police posted at Police
Station Kayamganj, District Farrukhabad
at the relevant time, received information
on 19.12.1981 at the Station through a
professional police informer described in
vernacular as Mukhbir Khaas, about an
impending plan to commit dacoity. This
information was received at the Station at
9 p.m. The informer is said to have
conveyed
to
the
Sub-Inspector
last
mentioned, that some miscreants were
planning to congregate in the mango
grove of one Phool Khan, located within
the Village Niyamatpur with further detail
that these miscreants would arrive at the
venue last mentioned, approaching it from
the west. They would then assemble in the
south-east corner of the grove. The
information
further
went
that
the
miscreants had a plan to loot vehicles
moving on the road. The Sub-Inspector
reposing faith in the veracity of the
information took as companions, SubInspectors Amar Singh, Chhotey Singh
and Jamuna Prasad, besides, Constables
Shobha Ram, Reghunath Singh, Vinod
Kumar, Rajendra Singh Damodar Singh,
Daya Shankar, Netrapal Singh, Indrapal
Singh, Vishwanath Singh. The police
team
proceeded
to
the
place
of
apprehended
occurrence,
riding
a
Government Jeep driven by Driver Shiv
Veer Singh, whereas some of the party
proceeded
on
bicycles.
Constable
Vishwanath Singh had on him his private
SBBL Gun with ammunition. The SubInspectors and men were variously armed
with service rifles and revolvers, a
detailed account of which is to be found
in the memorandum under reference. The
party reached Village Dhamdhera and
parked their Jeep and bicycles away from
the road. They secured the presence of
certain public witnesses, to wit, Chhotey
Lal Verma son of Ram Dayal, Mohan
Singh son of Heera Lal, Babu Ram son of
Jwala Prasad and Rajaram son of
Raghuvar
Dayal,
all
residents
of
Dhamdhera, Police Station Kayamganj,
District Farrukhabad. These witnesses
were
acquainted
with
the
secret
information received by the police. The
police party along with the public
witnesses were divided into two groups.
The first party was led by Babu Lal,
whereas the second party was led by SubInspector Amar Singh. The detailed
composition of the parties also finds place
in the memo under reference. The Senior
Sub-Inspector appears to have instructed
that his party would locate themselves at
the eastern end of the grove, concealing
196 INDIAN LAW REPORTS ALLAHABAD SERIES
themselves from sight, whereas the
second party would station themselves at
the southern end of the grove, also
concealed from sight. All were instructed
to observe silence and take positions,
concealing themselves. They were further
instructed that except in self-defence and
on instructions from the Senior SubInspector, none would open fire. It was
also conveyed that on the Senior SubInspector challenging the miscreants, both
parties would move into overpower them.
A password was coined at spot, that was
'Ganga', and conveyed to one and all in
the party. Thereupon, all in the party
proceeded to the grove. The Senior SubInspector inspected the sight, and directed
both parties to proceed to their predetermined stations at about 8.00 in the
evening. A little later, one by one, 7 - 8
miscreants trickled in, and assembled on
the south-eastern corner of the grove, all
standing under a mango tree. They
opened conversation. One of them said
that other companions have not arrived at,
to which another responded by saying that
they were in sufficient number and
adequately armed. He suggested that as
soon as a truck appears on the road, they
would proceed to stop it, and one amongst
them
would
overpower
the
driver,
whereas the others would loot the vehicle.
Upon hearing the aforesaid conversation,
the police party were assured that the
congregated men were dacoits, who were
preparing
to
commit
dacoity
by
waylaying vehicles moving on the road.
The Senior Sub-Inspector challenged the
miscreants flashing his torch with words
that all of them have been surrounded by
the police; that they should lay down
arms, and surrender; else they would be
killed. Upon the aforesaid action by the
police, the miscreants opened fire with an
intention to kill members of the police
party. It is recorded that driven by
compulsion and in self-defence, the
policemen opened fire, whereupon the
miscreants ran pellmell. They were
surrounded by both the police parties,
who succeeded in capturing four of the
miscreants. The rest of them escaped
without
being
identified.
The
apprehended miscreants were asked to
identify themselves. They disclosed their
identities as follows:

(1) Jauhari son of Banwari
Bahelia, resident of Bhrahmpuri;

(2) Phool Singh son of Murli
Bahelia, resident of Bhrahmpuri;

(3) Ram Prakash son of Nathu,
resident of Bhrahmpuri; and,

(4) Bhagwan Sahai son of
Mathuri Bahelia, resident of Bhrahmpuri,
all falling under the Police Station
Kayamganj, District Farrukhabad.

The
apprehended
miscreants
were searched before the witnesses at
spot. The search led to recovery of a
country-made 0.12 bore breach loading
gun, the description of which is also given
out in the memorandum under reference,
and reported to be in working order. The
gun had an empty in its barrel, whereas
the apprehended man Jauhari, had on him
a belt carrying five live 0.12 bore
cartridges. The other apprehended, Ram
Prakash also had on him a 0.12 bore
country-made breach loading gun, the
description of which is fully given out in
the memorandum under reference, that
was found to be firing fit. The said man
on further search, was found in possession
of four live cartridges, kept in his right
coat
pocket.
The
third
miscreant
2 All. Jauhari & Ors. Vs Vs State of U.P.
197
apprehended, that is to say, Phool Singh
had a country-made pistol of 0.12 bore
caliber, held in his right hand, the
description of which has been given in the
memorandum. It was in working order.
Upon further search of his person from
the right hand pocket of his pyjama, two
live
cartridges
of
0.12
bore
were
recovered.
The
last
of
the
four
apprehended, Bhagwan Sahai was armed
with a lathi, the description of which too
finds place in the memorandum. The
apprehended men were asked to show
licenses to bear those fire arms, which
they were unable to produce. As such, the
empty found in the barrel of Jauhari's gun,
was extracted, whereas all the other
weapons recovered, as well as cartridges,
were separately sealed into three bundles.
Also, recovered from the place of arrest
were seven empties of 0.12 bore calibre,
besides, the empty, that was still in the
chamber of Jauhari's gun. A total of eight
empties, thus, recovered, were seized and
sealed separately. The police party had
fired differently from their weapons,
about which there is a detailed description
in the memorandum, which indicates that
empties of the rounds fired, were also
duly deposited at the station. These
empties included mostly rounds fired
from
service
rifles
of
the
named
Constables, that made for a total of eight
empties of the fourteen rounds fired from
those rifles. It is also recorded that SubInspector
Amarjeet
Singh
fired
his
stengun twice, leading to recovery of two
empties. These 8 + 2 empties were also
sealed with a specimen of the seal being
retained
separately.
The
entire
memorandum of encounter-cum-recovery,
dated 19.12.1981 is signed by various
members of the police party and the four
witnesses from the public. It must be
remarked
here
that
the
aforesaid
memorandum is not signed by the four
apprehended
accused,
including
the
appellant, Phool Singh, at whose instance,
this appeal is now proceeding.

5. On the basis of recovery-cumarrest memo (Ex. Ka-1) scribed by SubInspector Chhotey Singh at the dictation
of Babu Lal Ojha, Senior Sub-Inspector,
P.S. Kayamganj, a chik FIR (Ex. Ka-3)
relating to the said occurrence was
registered on 20.12.1981 in four case
crimes, to wit, Case Crime no.430, under
Sections 399, 402, 307 IPC against all the
appellants; and, Case Crime nos.431, 432
& 433, under Section 25 of the Arms Act
against the appellants, Jauhari, Ram
Prakash, Phool Singh. The date and time
of occurrence was shown in the chik as
20.12.1981 at 1.30 a.m. The place of
occurrence was shown as the Grove of
one Phool Khan near Village Nyamatpur.
The distance from the police station was
shown
as
3
miles
to
the
south.
Investigation into the offence was handed
over to S.I. Ram Lakhan Singh on
21.12.1981. He recorded the statements of
the witnesses, inspected the place of
incident and prepared a site plan, Ex. Ka5 on the same day i.e. 21.12.1981. On
24.12.1981, he recorded the statements of
PW-2, S.S.I. Babu Lal Ojha, PW-5, S.I.
Chhotey Singh Bhadoria, PW-4, S.I.
Amar Singh etc. On 01.01.1982, he
obtained sanction with regard to cases
under Section 25 of the Arms Act from
the District Magistrate.

6. On 08.01.1982, after completion
of investigating, PW-6, S.I. Ram Lakhan
Singh submitted a charge sheet, Ex. Ka-9,
against all the four appellants for the
offences punishable under Sections 399,
402, 307 IPC. On the same day, separate
charge sheets, Ex. Ka-10 to Ka-12 for the
198 INDIAN LAW REPORTS ALLAHABAD SERIES
offence punishable under Section 25 of
the Arms Act were submitted against the
appellants, Jahuari, Ram Prakash and
Phool Singh.

7. The Special Judge, Farrukhabad
vide order dated 18.01.1982 framed charges
for the offences punishable under Sections
399 and 402 IPC against all the four
appellants and the appellants, Jauhari, Ram
Prakash and Phool Singh were separately
charged for the offence punishable under
Section 25/27 of the Arms Act vide orders
dated 18.01.1982. Each of the appellants,
denied the charges, pleaded not guilty and
claimed trial.

8. The prosecution examined the
following witnesses:

(1) PW-1, Chhotey Lal Verma,
a native of Village Dhamdhera;

(2) PW-2, S.S.I. Babu Lal Ojha,
P.S. Kayamganj, who headed the police team;

(3) PW-3, HC Babu Lal, posted
as Head Moharrir at the Police Station
Kayamganj;

(4) PW-4, S.I. Amar Singh, a
member of the Police Team;

(5) PW-5, S.I. Chhotey Singh
Bhadauriya, also a member of the Police
Team; and,

(6) PW-6, S.I. Ram Lakhan
Singh, Investigating Officer of the case.

9. The following documents were
exhibited on behalf of the prosecution:

Sr.
Exhib
Exhibited documents
No.
it No.
1
Ex.
Ka-1
Recovery-cum-arrest
memo, proved by PW-1
2
Ex.
Ka-2
Entry made by HM Sher
Singh in GD no.13 at 19.15
hours
dated
19.12.1981
with regard to Rawangi of
SSI Babu Lal Ojha, proved
by PW-3

3
Ex.
Ka-3
Chik FIR written by PW-3,
HM Babu Lal, proved by
PW-3
4
Ex.
Ka-4
Entry made by HM Babu
Lal in GD no.3 at 1.30 a.m.
dated 20.12.1981, proved
by PW-3
5
Ex.
Ka-5
Site Plan, Ex. Ka-5, proved
by PW-6
6
Ex.
Ka-6
Sanction by DM in Case
Crime no.431/81 u/s 25
against
the
appellant,
Jauhari, proved by PW-6
7
Ex.
Ka-7
Sanction by DM in Case
Crime no.432/81 u/s 25
against the appellant, Ram
Prakash, proved by PW-6
8
Ex.
Ka-8
Sanction by DM in Case
Crime no.433/81 u/s 25
against the appellant, Phool
Singh
9
Ex.
Ka-9
Charge
sheet
against
appellants Jauhari, Phool
Singh, Ram Prakash and
Bhagwan Sahai in Case
Crime no.430/1981, proved
by PW-6
10
Ex.
Ka-10
Charge sheet u/s 25 Arms
Act
against
appellant,
Jauhari, proved by PW-6
2 All. Jauhari & Ors. Vs Vs State of U.P.
199
11
Ex.
Ka-11
Charge sheet u/s 25 Arms
Act against appellant, Ram
Prakash, proved by PW-6

12
Ex.
Ka-12
Charge sheet u/s 25 Arms
Act
against
appellant,
Phool Singh, proved by
PW-6

10. At the conclusion of the
prosecution evidence, the statement of the
appellant, Phool Singh (along with the
deceased appellants) was recorded u/s 313
Cr.P.C., putting to him the circumstances
appearing against him in the prosecution
case, which he generally denied, and in
answer to question no.7, which is a open
question asking, whether the appellant
had anything else to say, the appellant
answered thus (in Hindi vernacular):

"मुझे व अन्य मुलजिमान को दरोगा
अमर ज िंह 19 ता० को ुबह घर े पकड़ कर
लाये और इ में झूठा चालान कर जदये।"

11. It is also relevant to mention
here, that the deceased appellant, Jauhari
in his statement under Section 313
Cr.P.C., while generally denying the
prosecution case, had answered question
no.7, identically worded, as under:

"दरोगा अमर ज िंह मुझे व अन्य
मुलजिमान को घर े पकड़ कर लाये थे।"

12.

Likewise,
the
deceased
appellant, Ram Prakash in his statement
under
Section
313
Cr.P.C.,
while
generally denying the prosecution case,
had answered question no.7, identically
worded, as under:

"मुझे व अन्य मुलजिमान को दरोगा
अमर ज िंह घर े पकड़ कर ले आये थे व झूठा
फिं ा जदया है।"

13. Likewise again, the deceased
appellant, Bhagwan Sahai in his statement
under
Section
313
Cr.P.C.,
while
generally denying the prosecution case,
had
also
answered
question
no.7,
identically worded, as under:

"मुझे 19 ता० के ुबह दरोगा अमर
ज िंह घर े पकड़ कर ले आये थे और इ
मामले में झूठा चालान कर जदये।"

14. The appellant (including the
deceased appellants), entered defence, and,
examined DW-1, Shivpal Singh Yadav,
Assistant Jailer, DW-2, Thakuri, DW-3,
Jagdish Singh, and DW-4, Anil Kumar
Tiwari, Assistant Jailer, in support.

15. Thereafter, on an application
moved by Sri Subedar Singh, learned
defence counsel appearing before the
Court below, the learned Judge inspected
the spot and drew up a site plan of the
place of occurrence, on 21.02.1981.

16. The learned Special Judge after
hearing both the parties, discussing the
evidence and material on record found the
appellants guilty for the offences punishable
under Sections 399, 402 IPC and Sections 25
and 27 of the Arms Act, sentencing them as
above-detailed by the impugned judgment and
order. Aggrieved by the impugned judgment
and order, each of the four accused-appellant
preferred this appeal, which now, as already
said, proceeds at the instance of the appellant,
Phool Singh alone.

17. Heard Sri S.A.N. Shah, learned
counsel for the appellant and Ms. Meena,
200 INDIAN LAW REPORTS ALLAHABAD SERIES
learned A.G.A. appearing on behalf of the
State.

18. In order to determine the
veracity of the prosecution case, evidence
may be marshaled and considered on the
basis of various facts in issue and relevant
facts, detailed hereinafter.

(1) Place and manner of arrest;

(2) Failure to obtain signatures
of the accused on the arrest-cum-recovery
memo, and furnishing its copy to the
appellant;

(3) Whether public witnesses
including PW-1, Chhotey Lal Verma, are
unreliable and pocket witnesses of the
police;

(4) Effect of failure to secure
examination of the recovered weapons by
a Ballistic Expert, and effect of nonproduction
of
Ballistic
Report
in
evidence; and,

(5) Standard of proof by the
prosecution in a case involving charges of
preparation to commit dacoity and being
one of the five persons assembled for the
purpose

(1) Place and manner of arrest

19. The genesis of the occurrence is
said to be based on an information
received by Babu Lal Ojha, Senior SubInspector of Police, then posted at Police
Station Kayamganj on 19.12.1981 from a
police
informer.
The
information
according to this witness reached him at
7.12 in the evening hours to the effect that
a gang of 7 - 8 armed dacoits were
scheduled to assemble in the grove of a
certain
Phool
Khan
at
Village
Niyamatpur, located on the Kayamganj -
Aliganj Road at 9 p.m. According to the
dock evidence of this witness, the
informer had further confided in him that
this gang of dacoits would loot vehicles
proceeding on the Kayamganj - Aliganj
Road. The testimony of this witness
proceeds that at 7.12 p.m., he received
this
information,
and
within
three
minutes, he left the Station after making
an entry in the General Diary with a
police force of thirteen strong, besides
himself. The police party included Babu
Lal Ojha, PW-2, besides, three other SubInspectors and ten men. This party,
according to the evidence of PW-2,
proceeded to the place of occurrence, as a
divided group; some riding a Jeep and
others on bicycles. They passed through
Village Dhamdhera, where with the
resource of a Constable in the party,
Shobha Ram, four witnesses of the public
with torches and licensed guns promptly
became available. The Jeep and the
bicycles, according to the version in the
examination-in-chief,
were
left
at
Dhamdhera, where the witnesses joined.

20. Babu Lal Ojha, PW-2 divided
the entire party into two; one under his
charge and the other under the charge of
Sub-Inspector, Amar Singh. Each of the
two parties had its share of two public
witnesses. The divided police team
proceeded to the grove of Phool Khan on
foot, necessary instructions being passed
on to members of the party, as they
proceeded to the grove. Once inside the
grove, PW-2 has said that he inspected it
and took position with his party on the
south-eastern corner, whereas the other
party were detailed to conceal themselves
in a ditch on the southern end. This
witness, who is the formal informant also,
2 All. Jauhari & Ors. Vs Vs State of U.P.
201
said
in
his
testimony
during
the
examination-in-chief that at about 8.30, 7
- 8 miscreants entered the grove from the
western end, one by one, till they were in
full strength. They sat down under a
mango tree and struck conversation
saying that as soon as a bus or truck
would alight, they would loot it. He has
further said that the miscreants were
talking amongst themselves that one of
them
would
overpower
the
driver,
whereas the others would loot the vehicle.
Hearing the aforesaid conversation, the
police team were assured that they were
miscreants who had assembled to pull a
dacoity. The witness says that thereupon
opening his torchlight, he challenged the
miscreants conveying that they were
surrounded by the police, and better
surrender. The time has been stated in the
testimony with much precision to be
'twenty minutes past nine'. Upon being
challenged, the miscreants opened fire.
The witness has gone on to say in his
examination-in-chief that the police party
returned the fire. This led the miscreants
to flee. The police upon seeing the
miscreants take to their heels, both parties
chased them and managed to overpower
four, whereas another 2 - 4 escaped
unidentified.
The
four
appellants,
including Phool Singh, were identified in
Court and the recovery of different
weapons and ammunition from each of
the appellants was proved by PW-2. After
the arrest, the witness says further in his
testimony
that
the
appellants
were
brought to the Station along with
recovered weapons, ammunition and
empties. The men were confined to the
Lockup, and the recovered case property
deposited with the Station Strong Room.

21. In his cross-examination at the
instance of deceased appellant, Bhagwan
Sahai and Ram Prakash, the schedule
about receipt of information and leaving
the police station is again mentioned with
precision. The information was received
at twelve minutes past seven, and it is said
by PW-2 that within 2 - 3 minutes, the
entire force assembled, armed and left
Station within an exceptionally short time.
The
police
party
reached
Village
Dhamdhera on two modes of transport
with quite a difference in the speed of the
vehicles. The Constable detailed to secure
witnesses, got four ready with licensed
weapons. This is described by PW-2 in
his cross-examination thus (in Hindi
vernacular):

"ज पाही 5 - 7 जमनट में गवाहोिं के
 ाथ लौट आया था। जि ज पाही को गवाह
लेने भेिा था वह िीप में हमारे ाथ आया था।
िब तक वह गवाह लेकर आया, तब तक
 ाईजकलो वाला force भी आ गया। बाग, इ
स्कूल े 3 - 4 फरलााँग होगा।"

22. This witness on being crossexamined on behalf of the deceased
appellant, Jauhari, acknowledged the fact
that he does not remember if a copy of the
memorandum of recovery was given to
the arrested appellants, and further that he
is not aware whether it is necessary to do
so. He has further said in his crossexamination that fire was opened on both
sides, but he did not see any pellet
embedded in the trees or elsewhere in the
drain or on the road. He has also said that
two rounds were fired by S.I. Amar Singh
from his stengun, acknowledging further,
that a round fired from the stengun could
bring down a tree branch.

23.

PW-4,
Amar
Singh,
a
companion Sub-Inspector, who was with
the team in his examination-in-chief, has
202 INDIAN LAW REPORTS ALLAHABAD SERIES
generally corroborated the testimony of
PW-2, Babu Lal Ojha. He has, however,
said that on the miscreants opening fire,
the police returned the fire and while
doing so, shot some 16 - 17 - 15 rounds.
This led to a commotion amongst the
miscreants, who took to their heels. In his
cross-examination,
he
has
again
categorically said that a copy of the
recovery memo was not given to any of
the appellants. This witness has further
said in his cross-examination that the
place where the police were stationed,
was at a distance 10 - 12 paces from
where the dacoits were located. He has
also said that when the miscreants opened
fire, they had shot at the police party too.
The police party returned fire in selfdefence, but not to kill.

24. PW-5, Chhotey Singh, another
Sub-Inspector on the team, has also
generally corroborated the prosecution
case, and in his cross-examination, has
not said anything of much significance to
either party, different from the other
witnesses.

25. The sole public witness, who is a
native
of
Village
Dhamdhera,
one
Chhotey Lal Verma son of Ram Dayal,
has given a graphic account of the
occurrence in his examination-in-chief,
generally
corroborating
the
other
witnesses. He has narrated the precise
words in the dock what the assembled
miscreants uttered, the words in which
they were challenged by the police, and
has, most particularly, given a numerical
account of the rounds fired on both sides:
8 - 7 by the miscreants, and 8 - 10 by the
police.
The
witness
identified
the
appellant in Court, as also the other
deceased appellants. This witness has also
said that both, guns and rifles, opened fire
on the side of the police. The witness has
also acknowledged that the place of
occurrence, that is to say, the grove of
Phool Khan is located at a distance of one
furlong from Village Niyamatpur. He has
acknowledged the fact that when the
aforesaid shootout took place between the
police and the miscreants, nobody from
the adjoining villages reached the place of
occurrence.

26. The Investigating Officer of the
case, one Ram Lakhan Singh, SubInspector
posted
at
Police
Station
Kayamganj, has, in his examination-inchief,
formally
proved
the
various
documents that have been exhibited,
including the sanction orders under the
Arms Act and the charge sheets. He has
said in his cross-examination about the
telltales signs of a shootout, thus (in Hindi
vernacular):

"मुझे पूरे बाग में कोई जनशानात ऐ े
नहीिं जमले थे जि े िाजहर होता जक फायररिंग
हुई थी।"

27. It must be remarked here that
mere consistency of witnesses would not
turn falsehood to truth. The evidence even
of eye witnesses, depending on the nature
of the offence, ought to be corroborated
by objective circumstances. This case
appears to be one where the manner and
place of occurrence are telltale of utter
falsehood of the prosecution story. The
falsehood of it, is somewhere to be found
in the inception of the prosecution, where
it is said by PW-2 that on receipt of
information about the assemblage of some
miscreants planning to pull a dacoity at
twelve minutes past seven, he could
collect a force of fourteen strong, arm
them, make an entry in the General Diary,
and leave the Station, all within the
2 All. Jauhari & Ors. Vs Vs State of U.P.
203
fantastically short time of three minutes.
The said fact has been acknowledged in
his evidence by PW-2 that all this was
done in that unbelievably short duration
of just three minutes; but that is only one
unbelievable feature. The main event
which is the shootout between police and
the miscreants is said to have taken place
in a mango grove at a distance of 10 - 12
paces, as appears in the evidence of PW4, S.I. Amar Singh. Even if the said
estimation of distance is considered to be
an overenthusiastic statement, or an
arithmetical miscalculation, the evidence
of all witnesses is consistent that the
distance between the encountering parties
was not, indeed, beyond the safe distance
of gun fire. It has also figured in the
statement that 16 - 17 rounds from rifles,
shot guns and two from a stengun, were
fired by the police party, whereas the
miscreants are said to have fired 7 - 8
rounds. Indeed, it is very unlikely that a
divided party of 16 men on one side and 7
- 8 on the other, firing so many rounds, at
close quarters, would leave everyone
uninjured - even without the graze of a
pellet. If that possibility is also accepted,
it certainly defies all logic that in the
consistent statement of PW-4 and the
Investigating Officer, no pellet or bullet
was
found
anywhere
embedded
in
anything, such as a tree or elsewhere. The
Investigating Officer who inspected the
spot,
has
conceded
in
his
crossexamination that in the entire grove, he
did not find any telltale marks that would
show that any shootout took place there.

28. There is another feature about
the prosecution case and their evidence,
which makes it sound, rather incredible.
Assuming
that
the
miscreants
had
assembled in the mango grove to pull a
dacoity, there is no good reason why they
would talk aloud amongst themselves,
about their plan to pull a dacoity, and the
precise manner of executing it. If one
were to assume that they were blissfully
assured that there was no one about the
place where they had assembled, it is
against behaviour native to man that in a
place that was certainly not a home to any
of the miscreants gathered, they would go
about loudly discussing, as if announcing
their plans to commit dacoity. It seems to
be a baseless allegation introduced by the
police in order to bring home the charge
under Section 399 IPC. In similar
circumstances, this Court in Shokat
Abdul Aziz vs. State, 2018 (5) ALJ 261,
held:

"26. A perusal of the recovery
memo shows that there is no signature or
thumb mark of the appellants on it. The
copy of the recovery memo was not given
to any of the appellants which is a
mandatory provision. The information has
been given by a police informer. Several
Police Officials have raided at the spot
and
it
appears
unnatural
that
the
appellants
without
showing
any
apprehension or indication, all of a
sudden, started speaking so loudly about
their plan for committing dacoity in the
house of Dhanumal Sarraf, that it was
easily overheard by the police party. Two
miscreants are said to have escaped from
the spot, but the police has not made any
effort to arrest them despite the fact that
their faces were seen by the police party
in the torch light."
 (Emphasis by Court)

29. The submission of Ms. Meena,
learned A.G.A. on behalf of the State that
since the
entire episode has been
consistently recounted by all the eye
witnesses, one of whom is a public
204 INDIAN LAW REPORTS ALLAHABAD SERIES
witness, the same is a dependable
guarantee of its truthfulness. This Court is
afraid that this submission does not
accord with law about evaluation of a
consistent eye-witness account. In this
connection, the decision of the Supreme
Court in Badam Singh vs. State of U.P.,
(2003) 12 SCC 792, may be gainfully
referred to. Their Lordships in Badam
Singh (supra), criticizing the approach of
the High Court in accepting the ocular
testimony of three eye-witnesses in a
murder case, merely because it was
consistent, held:

"16. The learned Sessions Judge
after considering the evidence on record
and accepting the evidence of the
eyewitnesses found the appellant guilty of
the offence under Section 302 IPC and
sentenced him to imprisonment for life.
The
High
Court by
its
impugned
judgment dismissed the appeal preferred
by the appellant. We have perused the
impugned judgment of the High Court.
The High Court which was the first court
of
appeal
did
not
even
carefully
appreciate the facts of the case. It
mentions that the FIR was lodged by PWs
5 and 6 whereas the fact is that the FIR
was lodged by PW 4, the Forest Officer.
Without subjecting the evidence on record
to a critical scrutiny, the High Court was
content with saying that the three
eyewitnesses having deposed against the
appellant, the prosecution had proved its
case beyond reasonable doubt. In our
view, the High Court has not approached
the evidence in the manner it should have
done being the first court of appeal. The
mere fact that the witnesses are consistent
in what they say is not a sure guarantee of
their truthfulness. The witnesses are
subjected to cross-examination to bring
out facts which may persuade a court to
hold,
that
though
consistent,
their
evidence is not acceptable for any other
reason. If the court comes to the
conclusion that the conduct of the
witnesses is such that it renders the case
of the prosecution doubtful or incredible
or that their presence at the place of
occurrence as eyewitnesses is suspect, the
court may reject their evidence. That is
why it is necessary for the High Court to
critically scrutinise the evidence in some
detail, it being the final court of fact. We
have, therefore, gone through the entire
evidence on record with the assistance of
the counsel for the parties."

30. A perusal of the finding of the
Trial
Court,
who
has
rather
unconventionally written his judgment by
framing issues held on this aspect of the
matter that evidence of prosecution
witnesses who are policemen, cannot be
discarded on the basis alone that they are
policemen. The learned Trial Judge has
then forayed into considering the effect of
police record about arrest, such as, entries
in the General Diary, to raise a
presumption against the accused about the
manner and place of arrest, contrary to
that alleged by the accused, who said that
they were arrested from home. While it
may be true that policemen cannot be
disbelieved for the reason alone that they
are members of the police force, their
word can equally not be accepted on a
presumption of
regularity,
otherwise
available to official actions done in the
ordinary course of discharge of duties by
a Government servant. The entries in the
General Diary regarding manner and
place of arrest, also cannot be held to
prove what is recorded there on a
presumption under Section 114 of the
Evidence Act, which the Trial Court has
raised against the accused, and then held it
2 All. Jauhari & Ors. Vs Vs State of U.P.
205
to be unrebutted. Proceeding further about
this particular fact of the manner and place
of occurrence, the Trial Court has ventured
into considering arguments based on the
history of Senior Sub-Inspector, Babu Lal
Ojha, who was found in the past to have
falsely implicated a blind man in some
crime involving a gang. It is pointed out that
he was suspended in connection with the
said implication in a false case. The Trial
Court has remarked that since he was
reinstated in service and exonerated, the
said charge is of no consequence. Similarly,
the history of Sub-Inspector, Amar Singh
regarding the issue of false implication
urged on behalf of the accused, has
occupied a good length of the judgment by
the learned Trial Judge to draw an inference
about the place and manner of occurrence.
This Court thinks that those facts on the
basis of which the Trial Court has drawn an
inference against the accused, are not of
much relevance. The approach of the Trial
Court in evaluating evidence about this very
relevant fact, does not commend itself to
this Court. It is for the reason that
evaluation of evidence on the issue is not
based on a clear approach, that may test the
veracity of the prosecution account about
the occurrence. The Trial Judge has
proceeded
more
on
irrelevant
considerations, and touching hardly any
good and relevant evidence, that would
prove or dispel the prosecution case about
the manner and place of occurrence.

31. In the totality of circumstances,
this Court is of clear opinion that the
manner and place of occurrence, as put
forward by the prosecution, is not
established by cogent and convincing
evidence.

(2)
Failure
to
obtain
signatures of the accused on the arrestcum-recovery memo, and furnishing its
copy to the appellant

32. It is submitted by Sri S.A.N.
Shah, learned counsel for the appellant
that the most vital and earliest record
about the occurrence is the memorandum
of encounter and recovery of illegal
weapons drawn up at site by the police.
He submits that the said recovery memo
does not bear the signatures of any of the
appellants, including the appellant, Phool
Singh. It is signed by the police officials
and the four public witnesses, who were
claimed to be with the police party.