2008 Supreme(SC) 5

2008(1) Supreme 86
SUPREME COURT OF INDIA
C.K.Thakker, Tarun Chatterjee,JJ
State of U.P. — Petitioner
versus
Punni & Ors. — Respondents
Appeal (crl.) 463 of 2001
Decided on 04-01-2008

Important Point
Where in a case relating to offence of dacoity accused respondents were convicted under sections 399 and 402 of IPC but it was found that S.O. and the I.O. were not examined by prosecution then High Court rightly acquitted accused respondents on ground that non examination of S.O. and the I.O was fatal to prosecution case.

Headnote:Indian Penal Code, 1860-Sections 399 and 402-Arms Act- Section 27-Arrest of accused respondents six in number and recovery of deadly weapons by police patrolling party on prior information that a gang of dacoits would assemble in a grove to commit dacoity-Conviction by Trial Court-Appeal –Allowed by High Court-Appeal against acquittal- No ground to hold that High Court was not justified in setting aside order of conviction and passing an order of acquittal in appeal- While doing so, High Court gave due reasons after considering the entire materials and evidence on record and also gave reasons as to why non-examination of S.O. and I.O. was fatal in facts and circumstances of Case- High Court held justified in holding that it was necessary for prosecution to prove case made out under Section 399 and 402 of IPC beyond reasonable doubt and to examine the S.O. and the I.O. for unfolding prosecution story- High Court also gave its reasons, as to why evidence of PW 1 and PW 2 on which, strong reliance was placed by in order to pass an order of conviction could not be relied upon - No reason to interfere with judgment of acquittal in exercise of jurisdiction under Article 136 of the Constitution - High Court, after consideration of all evidence and materials on record had come to a conclusion of fact that prosecution story as made out to convict the accused/respondents under Sections 399 and 402 of the IPC could not at all be believed- High Court held justified in drawing an adverse inference against prosecution as it had failed to examine the adjoining grove holders or land holders who were said to have been present in grove at time of occurrence-That apart, adverse inference was rightly drawn against prosecution as admittedly, the persons who were caught on spot were caught without any resistance or struggle from their side- High Court also found discrepancies in the examination -rightly-in-chief and the cross-examination of PW 1 as to time of his departure from the Police station and also as to fact of his leaving the station with S.O. - No reason to interfere with the judgment of the High Court acquitting the accused/respondents-Appeal dismissed.(Paras 8,9)

       [AIR 1954 SC 51] relied upon.

       Facts of the case:-

       1.Accused respondents six in number were arrested herein in the instant case and deadly weapons were recovered from them by police patrolling party on prior information that a gang of dacoits would assemble in a grove to commit dacoity. Trial Court convicted accused respondents for said offence. Appeal there against was allowed by High Court acquitting accused respondents.

       2.Present Appeal has been filed against said order of High Court.

       Findings of the Court :

       The Court held that there was no ground to hold that High Court was not justified in setting aside order of conviction and passing an order of acquittal in appeal. While doing so, High Court gave due reasons after considering the entire materials and evidence on record and also gave reasons as to why non-examination of S.O. and I.O. was fatal in facts and circumstances of Case. High Court held justified in holding that it was necessary for prosecution to prove case made out under Section 399 and 402 of IPC beyond reasonable doubt and to examine the S.O. and the I.O. for unfolding prosecution story. High Court also gave its reasons, as to why evidence of PW 1 and PW 2 on which, strong reliance was placed by in order to pass an order of conviction could not be relied upon. There was held to be no reason to interfere with judgment of acquittal in exercise of jurisdiction under Article 136 of the Constitution. High Court, after consideration of all evidence and materials on record had come to a conclusion of fact that prosecution story as made out to convict the accused/respondents under Sections 399 and 402 of the IPC could not at all be believed- High Court held justified in drawing an adverse inference against prosecution as it had failed to examine the adjoining grove holders or land holders who were said to have been present in grove at time of occurrence. That apart, adverse inference was rightly drawn against prosecution as admittedly, the persons who were caught on spot were caught without any resistance or struggle from their side. High Court also found discrepancies in the examination-in-chief and the cross-examination of PW 1 as to time of his departure from the Police station and also as to fact of his leaving the station with S.O. Since discrepancies were found in evidence of PW1. Hence held that there was no reason to interfere with the judgment of the High Court acquitting the accused/respondents. Appeal was accordingly dismissed.

       Result : Appeal dismissed.