State of Haryana v. Crl. Misc. No. A-711-MA of 2009

HON'BLE MR. JUSTICE JORA SINGH Present: Mr. S.S. Randhawa, Addl. A.G., Haryana, for the appellant-State. SATISH KUMAR MITTAL , J. * * * The State of Haryana has filed this application seeking leave to appeal against the judgment dated 22.8.2009, passed by Sessions Judge, Jhajjar, whereby the accused (respondent herein) has been acquitted in case FIR No. 280 dated 22.8.2006, registered at Police Station Jhajjar, under Sections 307 IPC and 25 of the Arms Act. In this case, as per the prosecution version, on 22.8.2006, at about 4.00 PM, when a police party headed by SI Ashok Kumar (PW.8) of CIA Staff, Jhajar, was coming from Chhuchhak to Jhajjar, after performing the patrolling duty, a young man was seen on the road, while coming on foot. SI got stopped his vehicle, alighted from it, stopped that boy and enquired about his name. Instead of telling his name, the boy picked out pistol from the pocket of his pant and fired a shot aiming at SI Ashok Crl. Misc. No. A-711-MA of 2009 -2- Kumar. However, the SI did not sustain any injury, as he saved himself by bending forward. Then SI Ashok Kumar picked out his service revolver and fired two shots towards the boy, who started running after firing towards SI. However, that boy also did not sustain any fire arm injury. Subsequently, he was apprehended by the police party. On interrogation, he disclosed his name as Ashok Kumar. His pistol fell down from his hands, which was lifted. It was a .315 bore pistol. An empty cartridge of the same bore was recovered from its chamber. On further search, from the right side pocket of the respondent, a live cartridge of the same bore was also recovered. On the basis of the said version and the aforesaid recovery, challan was filed and the respondent was tried. In support of its case, the prosecution examined eight witnesses and tendered certain documents in evidence. The respondent in his examination under Section 313 Cr.P.C., had pleaded innocence and stated that he was falsely implicated in this case, because on the day of occurrence, he was enjoying a show of snake charmer which was organised in the old Court Complex and the officials of Prisoners' Escort Guard picked up him when he was not able to produce any identity proof and could not satisfy them for the purpose of his visit to the Court complex. In defence, the respondent did not lead any evidence. After examining the evidence led by the prosecution and the defence taken by the respondent, the trial court has acquitted the respondent, while recording the following reasons : Crl. Misc. No. A-711-MA of 2009 -3- (i) The prosecution did not produce the live cartridge in the court, which was allegedly recovered from the right side pocket of the respondent. PW.7 Satbir Singh SI and PW.8 Ashok Kumar SI, who were present at the time of the alleged occurrence, were held to be not reliable and trust-worthy, as no independent witness was joined by them, though the independent witnesses were available, and no effort was made by the police party to join any one of them. Thus, the statements of these two witnesses have been disbelieved. (ii) It has been held that if the respondent would have actually fired a shot from the pistol aiming at PW.8 Ashok Kumar SI, who was standing very close to him, he would have certainly received firm arm injury, but he did not receive any injury and similarly, it has been held to be highly improbable that when PW.8 Ashok Kumar SI fired two shots, the respondent also did not receive any injury. (iii) The prosecution did not place on record copy of the Roznamcha showing that the police party was coming at the place of occurrence, after doing the police duty, therefore, the best documentary evidence, which could have established the genuineness of the prosecution case, has not been produced. (iv) Neither two empties of the service revolver, used by PW.8 Ashok Kumar SI, nor any report of the ballistic expert has been placed on record to prove that two fires were made by Ashok Kumar SI. No document has been placed on record to show that the service revolver and the Crl. Misc. No. A-711-MA of 2009 -4- cartridges which were used were allotted to Ashok Kumar SI. The incharge of the Arms & Ammunition of the Police Station was not examined to prove that Ashok Kumar SI deposited the empties with him on that day. In absence of this, it cannot be inferred that PW.8 actually fired two shots from his service revolver, aiming at the respondent. On this account also, statements of PW.7 and PW.8 have been disbelieved. (v) The parcel of the pistol and the cartridges was sealed with the seal of PW.8 Ashok Kumar SI and the seal was handed over to PW.7 Satbir Singh. Both these witnesses remained posted in the same Police Station till the parcel was dispatched to the Director, FSL, Madhuban. Therefore, it has been held that possibility of tampering with the seal of the parcel of the pistol and the cartridges recovered from the respondent, cannot be ruled out and it cannot be held that the pistol and the cartridges, which were examined by the Ballistic Expert of FSL, Madhuban, were the same which were actually recovered from the respondent. After taking into consideration the aforesaid factors, the trial court has disbelieved the statements of PW.7 and PW.8 and by giving the benefit of doubt, acquitted the respondent. Learned counsel for the appellant-State could not point out any illegality or perversity in the aforesaid finding. In our view, from the evidence led by the prosecution in this case, no contrary view, than the one taken by the trial court, is possible. Therefore, the trial court has rightly acquitted the respondent. In our opinion, the instant case is not a fit case, Crl. Misc. No. A-711-MA of 2009 -5- where the leave to appeal is to be granted to the State. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 11, 2010 ( JORA SINGH ) JUDGE