Vs. State of Haryana  INSC 1321 (24 October 1996)
Mukherjee, S.P. Kurdukar S.P. Kurdukar
Case (Crl.) NO. 1 OF 1995 Parveen V. State of Haryana
separate trials resulting into convictions of the appellant arising out of an
incident dated August
3, 1989 have given
rise to these two appeals. Criminal Appeal No.735 of 1991 arose out of T &
(P) S Case No. 31 of 1990 wherein the appellant was tried and convicted for an
offence punishable under Section 25 of the Indian Arms Act but acquitted of an
offence under Section 5 of the Terrorist and Disruptive activities (Prevention)
Act, 1987 (for short 'TADA').
Case (Crl.) No.1 of 1995 arose out of Sessions Case No. 15 of 1990 wherein the
appellant and Parkash were tried of an offence punishable under Section 307/34
of the Indian Penal Code. Both these cases were tried by the same Additional
Sessions Judge, but in two different capacities, one as an Addl. Judge, Designated Court, Faridabad at Narnaul and another as an Addl. Sessions Judge, Narnaul.
To be more precise, T & (P) S Case No. 31 of 1990 was tried before the Designated Court whereas Sessions Case No. 15 of
1990 was tried before the Addl. Sessions Judge, Narnaul. It may also be stated
that preceding this appeal, the investigation was common and some of the
material witnesses were overlapping. It is in these circumstances we are of the
opinion that both these appeals can be disposed of by this common judgement.
may first deal with the Criminal Appeal No. 735 of 1991 which has arisen out of
T & (P) S Case No. 31 of 1990.
prosecution story in nut shell is as under :- Siri Narain (PW 2) was running a
hotel in the name and style of "Sangam Hotel" at Dharuhera. His two
sons, namely, Rakesh (PW 33) and Radhey Sham (PW 6) used to help him in the
said business. On August 3, 1989, at about 11.00 p.m., the appellant (A-1) alongwith
his two associates, namely, Dhirender, son of Birender Singh, and Prakash, son
of Richhpal Singh, came to the hotel in a tractor and demanded empty glasses
and cigarette packets. Radhey Shyam (PW 66) gave two packets of cigarettes to
them but refused to give the empty glasses telling them that the liquor was
strictly prohibited in the hotel. The accused persons then started taking
"neat liquor" from their own bottles. Siri Narain (PW 2) protested
whereupon accused abusing him and threatened to kill him. In the meantime, the
appellant (A-1) went to the tractor and brought a gun loaded with two
cartridges and fired at Siri Narain. It was sheer providence that the bullet
did not hit him (Siri Narain) as he stretched on the ground. The occurrence was
witnessed by Rakesh (PW 3), Radhey Shyam (PW 6), Dharamvir servant (PW 4) and Surender
(PW 5). Siri Narain then went to the Hyderabad factory, situated near his hotel
and informed SI Rai Singh (PW 7) about the occurrence who then reached at the
place of incident alongwith police party. Siri Narain (PW 2) then gave his
statement Ex. PA and a ruqqa was sent to the Police Station for registration of
the crime. SI Dharam Singh registered the FIR (Ex. PA//1) and directed SI Rai
Singh (PW 7) to carry out the necessary investigation. During the
investigation, a site plan of the place of occurrence was prepared and the
appellant and two other accused persons came to be arrested. A double gun was
seized from the appellant vide seizure memo. Ex. PK. One empty cartridge and one live cartridge were seized from
the place of occurrence vide seizure memo Ex.PL. The gun and the cartridges
were then sent to Forensic Science Laboratory, Haryana, Madhuban for
examination. After completing the investigation, the charge sheet under section
25 of the Indian Arms Act read with Section 5 of TADA was filed against the
appellant before the Designated
Court, Faridabad at Narnaul.
separate charge sheet was also filed against the appellant and two other
accused persons for an offence punishable under Section 307/34 of the Indian
Penal Code in the Court of Addl. Sessions Judge, Narnaul being Sessions Case
No. 15 of 1990.
appellant denied the accusations and claimed to be tried. According to him, the
entire incident as narrated by Siri Narain is false, concocted and there was
neither recovery of any weapon nor any cartridge from the place of incident. He
is innocent and he be acquitted.
prosecution in order to prove the guilt of the appellant examined five
witnesses of facts, viz., Siri Narain (PW 2), Rakesh (PW 3), Dharamvir servant
(PW 4), Surender (PW 5) and Radhey Shyam (PW 6). Besides their evidence, the
prosecution also adduced the evidence of formal witnesses and placed reliance
upon the report given by Forensic Science Laboratory, Haryana, Madhuban.
learned Addl. Sessions Judge, Designated Court, Faridabad at Narnaul, after
careful persual of the oral and documentary evidence on record by his judgement
and order dated 14/15-11-1991 convicted the appellant for an offence punishable
under Section 25 of the Indian Arms Act and sentenced him to suffer RI for two
years, however, the appellant was acquitted under Section 5 of TADA. IT is
against this judgement and order of conviction and sentence passed by the
Designated Court, the appellant has filed this appeal to this Court.
U.R.Lalit, Learned Senior Counsel appearing in support of this appeal assailed
the impugned judgement on the ground that there is no evidence of any judgement
witness on record to support the charge. He urged that except Siri Narain (PW
2), all other witnesses of facts have turned hostile and it would not be safe
to accept his evidence to convict the appellant. He also urged that the seizure
memos in respect of the double barrel gun, empty and live cartridges were all
false and could not be made the basis of conviction. The impugned judgement be
set aside and the appellant be acquitted.
Rao Ranjit, Learned Advocate appearing for the State of Haryana supported the impugned judgment.
After careful scrutiny of the evidence and other materials on record, we are
satisfied that there is no substance in any of the contentions raised by Mr.
(PW 2) in his evidence has stated that the appellant went to the Tractor after
wordy quarrel, brought the gun in question, loaded the same and fired at him.
He also testified that the double barrel gun, empty cartridge and the live
cartridge were seized in his presence by SI Rai Singh (PW 7). Although this
witness was examined at great length but we are unable to find any material in
his cross- examination which could make us to disbelieve in his testimony. His
evidence was fully corroborated by SI Rai Singh (PW 7). Besides this ocular
evidence, the report given by the Assistant Director (Ballistics), Forensic
Science Laboratory, Haryana, MAdhuban, also corroborated their evidence.
However, Mr. U.R. Lalit, Learned Senior Counsel strongly relied upon the
evidence of other witnesses of facts, ignoring the fact that they have been
declared hostile and were cross-examined by the defence. No reliance whatsoever
could be placed on such evidence. We, therefore, see no reason to interfere
with the order of conviction passed by the Designated Court. Sentence of two years RI also cannot be said to be
disproportionate having regard to the facts and circumstances of this case.
This Criminal Appeal is, therefore, devoid of any merit.
Coming to the other appeal, namely, Transferred Case (Crl.) No. 1 of 1995
arising out of conviction and sentence under Section 307/34 of the Indian Penal
Code, at the outset, it may be stated that although the prosecution examined
several witnesses to the occurrence but except Siri Narain (PW 3), other four
witnesses have turned hostile and entire prosecution case, therefore, rested on
also be stated that two other accused persons who were put up for trial alongwith
the appellant, one of them, namely, Dhirender died during the pendency of the
trial and, therefore, it abated against him. Parkash (A-2) was, however,
acquitted by the Trial Court and State of Haryana, did not prefer any appeal
against the said order. The net result, therefore, is that the appellant alone
stood convicted by the Trial Court vide its judgement alone stood convicted by
the Trial Court vide its judgement and order dated 14/15-11-1991 for an offence
punishable under Section 207 of the Indian Penal Code and sentenced him to
suffer RI for three years and a fine for Rs. 1,000/- and, in default, to
undergo further RI for six months. The learned Trial Judge also directed that
the substantive sentences in both these trials to run concurrently. It is against
this judgement and order of conviction, the appellant had filed criminal appeal
No. 433-DB/91 to the Punjab and Haryana High Court, Chandigarh. This Court,
however, vide its order dated 22nd February, 1995 directed that the appeal No.
433-DB pending before the Punjab and Haryana High Court be transferred to this
Court and be heard alongwith Criminal Appeal No. 735 of 1991.
Mr. U.R.Lalit, the Learned Senior Counsel appearing in support of this appeal
urged that the evidence of Siri Narain (PW 3) is totally untrustworthy and his
evidence be not accepted in the absence of corroboration from the independent
witnesses. We see no substance in this contention because Siri Narain (PW 3)
testified that the appellant alongwith two other accused persons came to his
hotel at about 11.00 p.m.; demanded cigarette packets and empty glasses. He
further stated the cigarette packets were given to them by Radhey Shyam (PW 6)
but, refused to give empty glasses to them as the liquor was prohibited in the
hotel. Thereupon the appellant went to his tractor, brought the gun, loaded the
same and fired at him. However, he was luckily saved as he stretched on the
ground. We have gone through the evidence of this witness very carefully and we
are satisfied that his evidence is trustworthy and conviction could be based on
his sole testimony. The seizure of double barrel gun and the cartridges were
proved by the prosecution through the evidence of SI Rai Singh (PW 7) and this
fact was also testified by Siri Narain (PW 3). It also needs to be noticed that
the report of the Assistant Director (Ballistics), Forensic Science Laboratory,
Haryana, Madhuban, also supports the prosecution case. In the face of this
positive evidence, it is not possible to disturb the impugned judgement. There
is no substance in this appeal.
the result, the appeal and transferred case (Crl.) No. 1 of 1995 are devoid of
any merits and are accordingly dismissed. The appellant, if on bail, shall
surrender to his bailbonds forthwith to serve out the remaining period of his