SUPREME COURT OF INDIA

Before:- K.T. Thomas and D.P. Mohapatra, JJ.

Criminal Appeal No. 221 of 1991. D/d. 9.2.1999.

Krishna Gopal Singh and others - Appellants

Versus

State of U.P. - Respondent

A. Indian Penal Code, 1860, Section 395 - Committing of a robbery - Finding sine qua non.

[Para 4]

B. Indian Penal Code, 1860, Section 427 - Conviction - Not permissible in absence of any allegation against accused.

[Para 5]

C. Uttar Pradesh Pradeshik Armed Constabulary Act, 1984, Section 6(b) - Conviction under clause 6(b) not justified.

[Para 7]

D. Constitution of India, Article 136 - Reappraisal of evidence - Reversal of High Court's orders reversing orders of acquittal - Not permissible while exercising power under Article 136.

[Para 3]

JUDGMENT

Appellants herein were formerly members of the Pradeshik Armed Constabulary of the State of Uttar Pradesh. On the allegation of a revolt having been committed by members of the P.A.C. at Fatehpur proceedings have been initiated against the appellants departmentally as well as before the criminal Court for various offences. Though the trial Court acquitted all the appellants a Division Bench of the High Court of Allahabad, on an appeal filed by the State, set aside the order of acquittal and convicted all of them under different provisions, but the sentence was limited to the period of imprisonment which each of the appellants had already undergone. In the light of the aforesaid sentencing process adopted by the Division Bench of the High Court it would not have been necessary for the appellants to approach this Court but we understand that the effort was to get rid of the stigma of conviction for helping the appellants to have the service benefits unaffected.

2. The provisions under which appellants were convicted are the following :

Section 148, Section 395, Section 427 read with Section 149 of the Indian Penal Code; Section 6(b) and Section 6(c) of the U.P. Pradeshik Armed Constabulary Act, 1984 and Section 3 of the Police (Incitement to Disaffection) Act, 1922.

3. The substance of the allegations made against the appellants was this :

The first appellant exhorted the other members of the P.A.C. to take arms as army had set out from Kanpur to take over the charge of Fatehpur Armed Reserve Centre on the orders of the State Government. Upon the said exhortation all the appellants and some other members of the Constabulary broke open the armoury and took out arms and ammunitions therefrom and pitched them at various places to meet the oncoming army. Some of them proceeded to police lines also.

4. It is admitted by the learned counsel for the respondent-State that none among the appellants is alleged to have inflicted any injury to any other person or to have intimidated any person with injury. For sustaining a conviction under Section 395 Indian Penal Code, a finding is sine qua non that appellants have committed the offence of robbery and if the number of the assailants crossed the figure of five the offence would escalate to Section 395. But accepting the entire allegations against appellants to be true we fail to notice any material to bring the offence within the contours of the definition under Section 390 (robbery) Indian Penal Code. In view of the aforesaid deficiency learned counsel for the respondent-State could not persist with his contention for sustaining the conviction under Section 395 of the Indian Penal Code. That section has to go out from the purview of the convictions consequently.

5. Similarly, the offence under Section 427 also cannot be pressed into service as none of the appellants is alleged to have committed any act "with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person". The offence of mischief as defined in Section 425 can be established only with strength of the allegations covering the ingredients enumerated in the said section. Learned counsel for the State has fairly conceded that the allegations in the charge are lacking as for those ingredients. If so, appellants cannot be convicted of the offence under Section 427 either.

6. The same benefit has to be extended to the appellants in relation to Section 6 (b) of the U.P. Pradeshik Armed Constabulary Act. That sub-section reads thus :

6. More heinous offences. - An officer of the Pradeshik Armed Constabulary who -

"(a) xxxxxx

(b) uses or attempts to use criminal force against or commits an assault on his superior officer, whether on or off duty;

(c) to (e) xxxxxx

shall, on conviction, be punished with imprisonment for life or with imprisonment for a term which may extend to fourteen years and shall also be liable to fine."

7. We may note that regarding the said offence it has been fairly conceded that there is no allegation whatsoever for bringing the acts of the appellants within the purview of the aforesaid provision.

8. So before we proceed to the remaining offences we set aside the conviction and sentence passed on the appellants for the offences covered by the above-mentioned provisions.

9. An endeavour was made by the learned counsel for the appellants to show that the trial Court was correct and the High Court was wrong in entering a conviction against the appellants under the remaining Sections of offences. We have gone through the judgment of the High Court and we heard learned counsel with reference to the reasonings adopted by the trial Court. The High Court relied on the testimony of a large number of eye-witnesses who were members of the Constabulary. The testimony of those eye-witnesses extracted in the judgment of the High Court was helpful to us in appreciating that the High Court has not gone wrong in reversing the order of acquittal. We are, therefore, not inclined to re-appreciate the evidence in our jurisdiction under Article 136 of the Constitution.

10. Learned counsel made a last plea that this Court may afford ameliorative reliefs to the appellants as otherwise this conviction would be used for proceeding against them disciplinarily. It is for the appellants to approach the State Government for that purpose and it is not permissible for us to make any observation either way. Without prejudice to the rights of the appellants to approach the State Government for securing ameliorative reliefs for the service conditions on account of the conviction and sentence passed against the appellants, we dispose of this appeal in the terms mentioned above.

Order accordingly.