RAKESH & Ors. v. ASHUTOSH MOHUNTA, J

came to the Session Court, Rohtak in connection with case bearing FIR No.112 of 2000 under Section 302 IPC, where he received a secret information to the effect that 7 or 8 boys had reached the Session Court, Rohtak in a hired Tata Sumo bearing registration No.HR/11/8109 to help Ashwani @ Fauji, who was facing trial in custody in case FIR No.287 of 1999, under Section 302 IPC of Police Station Civil Lines, Rohtak in order to escape from custody. S.I. Jagpal Singh was further told that those boys Crl.A. No.970-DBA of 2002 -2- have been brought by Rakesh, accomplice of Ashwani and he knew the names of 4 boys, namely, Satpal, Rakesh, Ishwar and Vicky. The informer further told that Madan Lal was the driver of the Tata Sumo and that the purpose of their visit of Session Court, Rohtak was either to get released Ashwani from custody or firing shot at the person attending the hearing of the case from the side of the complainant.

It was further informed that those boys possessed a country made pistol. Thereupon, Jagpal Singh S.I. made a search for those boys in the Session Court compound with the help of the informer. He spotted some boys standing in the lawn outside the Session Court and the informer pointed out towards those boys and thereafter he went away. Jagpal Singh, S.I. started conducting personal search of those boys with the help of a Constable Rajender Singh. When their personal search was being carried out, the boys started running in different directions. Alarm was raised and people were called upon to overpower them, telling that they had arms and ammunition. Constable Rajender Singh jumped over the boundary wall and ran after those boys. In the meantime, a boy took out a country made 315 bore pistol and raised its barrel towards Constable Rajender Singh and also pulled its trigger. Since the strip holding the barrel of the pistol was loose the fire arm could not work.

Thereafter, that boy jumped out of the Session house into another house. He again tried to use the fire arm and thereafter he entered the house of Sh.K.K.Bali, Addl. Chief Judicial Magistrate, Rohtak. Rajender Singh and Jagdish, Constables overpowered him in the house of Sh.K.K.Bali. On enquiry, he told his name as Satpal. The country made fire arm was taken from his hand and on opening the same, it was found to have a one 315 cartridge. S.I. Jagpal Singh on verification of the pistol found that there Crl.A. No.970-DBA of 2002 -3- were marks on the base of the cartridge caused due to striking of the firing pin. From the personal search of Satpal, four cartridges of 315 bore were recovered from the pocket of pant worn by the accused. The other person accompanying Satpal tried to rescue Satpal, but could not succeed and thereafter, they ran away leaving Satpal with the Police. Rough sketch of the country made pistol (Ex.PN) was prepared.

The pistol and cartridges were separately sealed with the seal bearing impression 'JS' and the same were taken into possession vide recovery memo Ex.PM. The seal after use was hander over to Constable Jagdish. Ruqqa (Ex.PD) was sent to the Police Station after making endorsement (Ex.PD/1) and on its basis, formal FIR (Ex.PE) was recorded by S.I. Ram Chander. Rough site plan (Ex.PN) of the place of occurrence was also prepared. Tata Sumo was taken into possession vide recovery memo (Ex.PG). Madan Lal, who tried to move away in the vehicle was also arrested. Satpal accused was arrested at the spot. Statement of the witnesses were recorded. S.I. Jai Parkash arrested accused Rakesh, Vikas and Ishwar. The pistol was got mechanically tested from the Armourer. After completion of necessary investigation, challan against the accused was presented. Charge under Section 148/307/353 read with Section 149 IPC was framed against the accused.

Charge under Section 25 of the Arms Act was also framed against Satpal accused. The accused pleaded not guilty to the charge and claimed to be tried. During the trial, the prosecution examined total 15 witnesses. PW1 Sudershan, Assistant Superintendent, District Jail, Rohtak deposed that on 18.10.2000, accused Ashwani was to be produced in the Court of Sh.Shiva Sharma, Addl. Sessions Judge, Rohtak in case FIR Crl.A. No.970-DBA of 2002 -4- No.287 dated 22.7.199, under Section 302 IPC, P.S. Civil Lines, Rohtak. This witness also tendered into evidence copy of his jail warrant as Ex.PA. PW3 Satish Bansal, Ahlmad to the Court of Sh.Shiva Sharma, Addl. Sessions Judge, Rohtak deposed that accused Rakesh, Ashwani @ Fauji and Suresh were involved in case FIR No.287, Dated 22.7.1999, under Section 302 IPC read with Section 34 IPC, P.S. Civil Lines, Rohtak, in which Suresh was a proclaimed offender. PW6 Sat Narain ASI Armourer deposed that on 4.1.2001, Sunil Kumar, ASI brought two sealed parcels with the seal 'JS' which were broken.

One parcel contained country made 315 bore pistol and the other contained five cartridges of the same bore, out of which four cartridges were live. One was having the mark of striker on the same. The pistol was examined by him which was found to be in working condition. PW9 HC Om Parkash deposed that on 18.10.2000, he was on duty as escort guard. At about 1.30 p.m., when he was sitting in the lawn, he heard someone shouting 'Pakro-Pakro'. He went outside the gate of court compound and saw Jagpal S.I. coming from the side of residence of Sessions Judge, securing a person while he was starting a TATA Sumo bearing registration No.HR-11-8109. PW13 SI Jagpal and PW14 Constable Rajender Singh had deposed on the facts as stated in the ruqqa (Ex.PD). On closure of the prosecution evidence the statement of the accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence and circumstances appearing in the case were put to them.

The accused denied the same in toto and pleaded innocence. Accused Satpal pleaded that on 18.10.2000, he came to Session Crl.A. No.970-DBA of 2002 -5- Court, Rohtak in order to see Ashwani, his relation and at about 11/11.30 a.m. when he was trying to contact him in the lock-up, he had a brush with the escort police officials, who caught hold him and handed over him to S.I. Jagpal Singh, who falsely involved him in this case. Accused Ishwar pleaded that he had nothing to do with the alleged occurrence and he never went to the Court premises on 18.10.2000. Accused Madan Lal accused stated that he has been falsely implicated in this case, because he had brought Rakesh, his parents and other relatives in Tata Sumo on that day. The accused had his Tata Sumo from Gohana for Rs.700/- and when he was sitting in his Tata Sumo at about 11.30 a.m., the police came along with Satpal, accused and picked him up and thereafter falsely implicated him in this false case.

Accused Rakesh stated that he has been falsely implicated in this case due to his release on bail in case FIR No.287/1999 under Section 302 IPC of Police Station Civil Lines, Rohtak by Jagpal Singh, S.I. at the instance of complaint party, who belongs to his village and had friendly relations with Jagpal Singh and they had got a chance due to altercation of Satpal, accused with the Police officials present on escort duty. Ashwani, accused was his relative and escort officials handed over Satpal accused to Jagpal Singh, S.I. at about 11.30 a.m. and later on the Police planted this case on him and others and no such occurrence as alleged had taken place on 18.10.2000, in the Court premises. Accused Vikas stated that he has been falsely implicated in this case, as he stood surety for Rakesh, accused in case FIR No.287 of 1999 under Section 302 IPC of Police Lines, Rohtak. He further stated that on the alleged day of occurrence, he had not come to the Court premises.

Crl.A. No.970-DBA of 2002 -6- After taking into consideration the aforesaid evidence and hearing the learned counsel for the parties, the trial Court acquitted all the accused. Feeling aggrieved from the order of acquittal, the appellant- State has come up in appeal. After hearing the learned counsel for the parties and going through the record, we are of the considered view that the prosecution story as unfolded by PW13 SI Jagpal Singh and Constable Rajinder Singh PW14 is not trustworthy and as such the same does not inspire confidence for the reasons mentioned here rein under. According to the prosecution version 7 or 8 boys had reached the Session Court armed with fire arms in a hired Tata Sumo in order to help Ashwani @ Fauji who was facing trial under Section 302 IPC, for his escape from custody and those persons had fire arms in their possession. It is further the case of the prosecution that when SI Jagpal Singh PW13 started effecting search of Rakesh, accused, the other persons had run away in different directions.

SI Jagpal Singh along with Constable Jagdish Singh are stated to have followed those persons in order to effect their arrest, but they could not arrest those persons. Only Madan Lal who was the driver of the Sumo was arrested. On the other hand, Constable Rajinder Singh PW14 had followed Satpal, accused, who was stated to have possessed a country made pistol. Satpal accused is alleged to have pointed out the pistol towards Constable Rajinder Singh, but the spring of the pistol was loose, so the pistol did not work. However, it is stated by SI Jagpal Singh and Constable Rajinder Singh that there were strike marks on the bases of the cartridges. In the present case, only 5 accused have been challaned and only Crl.A. No.970-DBA of 2002 -7- Satpal, accused was stated to have possessed a country made pistol. Satpal, accused is alleged to have pulled out a country made pistol and pointed it towards Constable Rajinder Singh and he tried to fire a shot.

It means that there was some defect in its mechanism. It is specifically mentioned in the FIR (Ex.PE) that strip attached to the barrel of the pistol was loose, so it did not work. Kulbir Singh, Head Constable, PW11 to whom SI Jagpal Singh handed over the pistol stated in his cross-examination that when Jagpal Singh SI handed over the pistol to him, it was not sealed. On the other hand, Sat Narain PW6 who was the armour and tested the pistol stated that the pistol was duly sealed. Sat Narain PW6 proved his report (Ex.PF/1) and admitted the fact that Ex.DB is the copy of the original report prepared by him and copy thereof was supplied to the accused. In the original report (Ex.PF/1) Sat Narain, PW6 has mentioned that he checked the pistol after opening the sealed pistol and found it to be of 315 bore fire arm in working order. Interpolation has been made in the report (Ex.PF/1) later on to add that spring of the pistol was loose and rest of the pistol was in working order.

In the original report there is no mention of cartridges having strike marks in its base. This fact was also added to the report and from this interpolation it can be said that the pistol which was checked by PW6 Sat Narain did not have any defect, but as per the prosecution story, in fact the pistol did not work and it might have some defect of mechanism. From these facts, it can be inferred that some other pistol was introduced. Moreover, the alleged occurrence had taken place on 18.10.2000, whereas the alleged pistol was produced before Sat Narain PW6 on 4.1.2001, i.e. after a period of about 2½ months, which also create a doubt about the genuineness of the report with regard to the pistol. Crl.A. No.970-DBA of 2002 -8- As per the prosecution version, the accused persons had gathered in the Court premises in order to help Ashwani Kumar to escape from the custody of police. But, this fact is belied from the statement of PW3 Satish Bansal, Ahlmad, who has clearly stated that the bail application of Ashwani in the case FIR No.287 of 22.7.1999 of Police Station Civil Lines Rohtak, under Section 302 IPC was allowed on 12.2.2000.

According to this witness, only bail bonds were required to be furnished for the release of Ashwani. Therefore, there was no reason for the accused to commit any illegal act by rescuing Ashwani from Police Custody. It is the case of the prosecution that Jagpal Singh SI, PW13 came to Session Court, Rohtak with Rajinder Singh, Constable in a bail matter which are admittedly taken up first of all. SI Jagpal Singh stated that he started from Police Station Sadar Rohtak at about 8.30 a.m. and reached Session Court premises at 9.00 or 9.15 a.m., though the time given by Constable Rajinder Singh in this regard is different. It does not appear to be possible that Jagpal Singh SI came at this time to the Court for a bail matter. Constable Rajinder Singh stated that he accompanied SI Jagpal Singh from Police Station at 10.00 a.m. and reached the Court at 10.30 a.m. Even if it is assumed that SI Jagpal Singh reached the Court at 9/9.15 a.m., but he clearly admitted that the bail matter in which he had appeared was already heard and therefore, he was free from that bail matter.

No plausible explanation has been submitted by SI Jagpal Singh for his stay in the Court premises upto 12.15 p.m, when he allegedly received the secret information. Further SI Jagpal Singh admitted that there were several public persons and police official of escort guard available in the Court compound, but he did not feel the necessity to call officials/public men in order to join them in Crl.A. No.970-DBA of 2002 -9- chasing the accused persons. The presence of SI Jagpal Singh in connection with the case pending in the Session Court and his conduct in not joining the police officials of escort, makes the prosecution story doubtful. The prosecution case was that the accused person were having fire arms and later on it was found that the fire arms allegedly possessed by Satpal accused was not in working order, as spring of the pistol was loose. The striking marks in the report (Ex.PF/1) were found to be interpolated as the copy of the report supplied to the accused did not find mention in the marked portion A to A in report (Ex.PF/1).

The contradictory stand of the prosecution that the spring of the pistol was loose, so it was not in working order, whereas, in the report (Ex.PF/1), it is opined by Sat Narain armour that the pistol was in working order. From the above facts and the bare reading of the FIR, it is apparent that the pistol allegedly recovered from Satpal was not in working order. Thus, there was no attempt on the part of the accused Satpal to murder the police officials, because Satpal did not do any act with intention or knowledge to cause death. Further when the pistol was not in working order, it cannot be said that Satpal accused caused assault or used criminal force to deter public servant from discharge of his official duties. Satpal accused is alleged to have simply pointed out a pistol which was not in working order. Therefore, the prosecution has not been able to establish on record that Satpal accused had made any attempt to murder the police officials having any such intention or knowledge and caused any assault or used criminal force to deter the police officials from discharge of official duties.

Simply running away from the Court premises, followed by the police officials, is not sufficient to draw adverse inference of guilt because SI Jagpal Singh and Constable Jagdish were not in a Crl.A. No.970-DBA of 2002 -10- position to chase the other accused, except Madan Lal, driver of Tata Sumo and the other three accused were admittedly arrested on 3.11.2000, i.e. after about 15 days. In view of the aforementioned discussion, we find no merit in this appeal and the judgement of the trial Court vide which the accused were acquitted is upheld. Resultantly, the appeal filed by the State is dismissed. (ASHUTOSH MOHUNTA) JUDGE August 3, 2010 Gulati (NAWAB SINGH) JUDGE