Jaswant Singh v. State of Uttarakhand

report, Chick FIR (Ex.ka-1) was recorded in police station Gadarpur. S.H.O. alongwith police party had gone in search of accused persons in aforementioned case no.174/ 20 0 2. When police party reached near the bridge of Bore river, a secret inform er told them that accused persons who had looted a m otorcycle and money from the businessm an dealing in the fruits, were com ing from Haripura side. On this information, S.H.O. tried to join some independent persons but none agreed. However, in the m eantime the complainant of case no. 174 of 20 0 2 Anil Kum ar alongwith Dinesh Kumar reached there and they were joined in the police party. Thereafter, police party noticed that three persons riding on a m otorcycle were com ing from Haripura side. Police officials stopped the m otorcycle but m otorcycle fell down and accused fired at the police party in an attem pt to kill them . With great efforts, one of the accused was apprehended who disclosed his nam e as J aswant@ J assu@ Chandni@ Channi while two accused successfully escaped from the spot. From the possession of J aswant Singh, one country- m ade pistol of 12 bore with one em pty cartridge and two live cartridges were recovered from left side pocket of his pant and a gray rexine bag containing the currency of Rs.1,50 ,0 0 0 / - was also recovered from him . The accused appellant disclosed the nam e of his accomplice. He also disclosed that m oney recovered from him was looted by them from a businessm an dealing in fruits. They were going to distribute the booty am ongst them when they were apprehended. 3 Investigating Officer prepared necessary m emos and took the articles in possession. Other accused were arrested. On completion of investigation, challan was presented and accused were charge sheeted under section 30 7 IPC while Harnam Singh and accused appellant J aswant Singh were charged under section 25 of the Arm s Act to which they pleaded not guilty and claim ed trial. The prosecution in order to prove its case, produced five witnesses in all. Constable Dayanand (PW1) who was posted at P.S. Gadarpur at the tim e of occurrence recorded the F.I.R. A.S.I. Am ar Singh Negi (PW2) and Constable Dhal Gopal Singh (PW5) are the witnesses in whose presence appellant accused was apprehended and country-m ade pistol was alleged to have been recovered. They were also present during the course of entire investigation. S.I. J agdamba Prasad (PW3) is the investigating officer of this case, while S.I. Malkit Singh (PW4) investigated the case against Harnam Singh under section 25 Arm s Act. The accused were exam ined under section 313 Cr.P.C. and they denied all the allegations of prosecution and claim ed innocence and false implication. Accused J aswant Singh stated that he was arrested from his house in the presence of other co-villagers. After taking into consideration the entire evidence on record, the trial court acquitted accused Harnam Singh and Harkewal Singh under section 30 7 IPC and Harnam Singh under section 25 of the Arm s Act also. However the trial court convicted the appellant J aswant Singh under section 30 7 IPC and 25 of the Arm s Act. 4 Heard Sri Pankaj Miglani, learned Am icus Curiae for the appellant, Sri Nandan Arya, learned A.G.A. for the State/ respondent and perused the m aterial available on record. Learned counsel for the appellant argued that as per the FIR, the police party was constituted under the leadership of S.H.O. D.K. Sharm a, Gadarpur for investigation of the case no.174 of 20 0 2 under section 392/ 397 IPC. A.S.I. Am ar Singh Negi (PW2) and Const. Dhal Gopal Singh (PW5) stated that the Investigating Officer tried to join som e independent persons from the public but none was ready to join the police party. Statements of witnesses are totally unreliable. In case, the police officials had tried to join some persons from the public and they refused to do so, they could have taken action against those persons, but according to investigating officer, no action was taken against them . He further argued that Dinesh Kum ar and com plainant Anil Kum ar whose m otorcycle and am ount of Rs.1,50 ,0 0 0 / - were alleged to be looted, were present and joined the police party, but they have not been cited as witnesses nor have been produced in the witness box. From the perusal of facts, it appears that they were not present that is why they have not com e forward to support the prosecution version, which makes the case of the prosecution highly doubtful. He further argued that the conviction is based on the testim ony of police officials only, who are interested in the success of prosecution case. He also pointed out that weapon allegedly recovered from the possession of the accused appellant was not produced in the court nor there is any evidence to support the prosecution case that said country- m ade pistol which is alleged to have been recovered from the 5 possession of the accused was in working condition nor it is proved that cartridges allegedly recovered from the possession of the accused were live cartridges. The prosecution neither placed the report of Ballistic Expert to establish that alleged country-m ade firearm was in working condition or cartridges recovered were live. In the absence of such evidence, the conviction of the appellant can not be sustained. Learned counsel for the appellant further pointed out that no em pty cartridge was recovered from the place of occurrence, thus there is nothing on record to prove that any shot was fired at the police party. Learned counsel for the appellant pointed out that no injury has been caused in the alleged firing to any of the members of police party. Prosecution has m iserably failed to substantiate that any case for attem pt to m urder under section 30 7 IPC is made out. On the other hand, learned A.G.A. controverted the arguments raised by learned counsel for the appellant and subm itted that there is nothing on record to prove that police officials were having any enm ity with the accused or they had any reason to falsely im plicate them. He further argued that police party made efforts to join some independent witnesses from public but they refused to join. However, non-appearance of any witness from the public would not be fatal to the prosecution case. It is also argued that conviction can be based on the testim ony of the police officials if their statem ents are consistent and reliable. After taking into consideration the rival subm issions raised by learned counsel for the parties and the docum ents available on record, this Court is of the view that the findings of the trial court are perverse and m isconceived. The trial court has not considered the evidence in the proper perspective. 6 There is no doubt that conviction can be based on the testim ony of police officials, if they are reliable and worthy of credence. Som e tim es, it can be possible that witnesses from public cannot be secured and police had to conduct raid without joining any public witnesses. However, in the present case, Police party was specially constituted for investigation of a case bearing no.174 of 20 0 2 under section 392/ 397 I.P.C. An inform ation was received through a secret informer that accused persons are likely to com e from Haripura side. Police had reached the place of occurrence at 0 5.0 0 p.m. and accused reached there half an hour thereafter. It is also adm itted by A.S.I. Am ar Singh Negi (PW2) and Const. Dhal Gopal Singh (PW5) that Anil Kumar complainant of case no.174 of 20 0 2 and Dinesh Kumar had joined the police party. However, they have also not been cited as witnesses. In the circum stances and the absence of independent corroboration, it creates serious doubt in the prosecution case which is based only on the testim ony of police officials. Besides non-joining of the independent witnesses from the public, prosecution is not able to prove any weapon having been recovered from appellant J aswant Singh. The alleged country-m ade pistol and live cartridges have not been produced in the court. The cartridges as well as country-m ade pistol allegedly were not sent to Forensic Science Laboratory. Thus, they have not been tested in the laboratory. Therefore, there is no report of Ballistic Expert. There is no evidence that country-m ade pistol allegedly recovered from the appellant was in working condition and found fit for use. No empty cartridge allegedly have been recovered from the place of occurrence. According to PW2 Am ar Singh Negi and PW5 A.S.I. Dhal Gopal Singh, three shots were fired by accused persons but none of 7 them could specify as to who had fired the shots, whether it was J aswant Singh or his other two accom plice who have been acquitted by the trial court. In the absence of any cogent and independent evidence, it can not be presum ed that any shot were fired by the appellant accused J aswant Singh @ J assu at the police party. After going though the testim ony of PW2 Am ar Singh Negi and PW5 A.S.I. Dhal Gopal Singh, it seen that they have adm itted in clear term s that the prosecution has not produced the case property i.e. country-m ade pistol and live cartridges in the court. It is also adm itted by PW4 S.I. Malkit Singh that he did not take the opinion of any Ballistic expert that recovered country-m ade pistol was in working condition or not. In the absence of any cogent and independent evidence, the conviction of the appellant under section 30 7 I.P.C. and under section 25 Arm s Act can not be sustained. I therefore, allow this appeal, set aside the judgment and order dated 21.0 4.20 0 3 passed by Additional Sessions J udge/ III F.T.C., Udham Singh Nagar and acquit the appellant. J KJ 2 2 .0 4 .2 0 10 ( N ir m a l Ya d a v, J .)