Vs. The State Haryana  INSC 1068 (3 September 1996)
Mukherjee, S.P. Kurdukar S.P. Kurdukar, J.
separate trials arising out of an incident which took place during the
intervening night between 6/7th April, 1986 ended in convictions and sentences
against the appellant-accused under Sections 307 and 393 of the Indian Penal
Code and under Section 25 of the Arms Act read with Section 6 of the Terrorist
and Disruptive Activities (Prevention) Act, 1985. The impugned judgments and
orders dated 15th April, 1987 and 9th February, 1989 respectively are passed by
Designated Court, Faridabad at Gurgaon in case Nos. 80 and 81. Although, the Designated Court has given two separate judgments,
however, these appeals are being disposed of by this common judgments 2. The
prosecution case, in brief is as under:
about 3.30/4.00 a.m. on 7th
April, 1986, Padam
Singh-the complainant (PW 4) was in his room. An electric light was on. He
noticed a person running by the side of his room whom he recognized as Rehmat,
the brother-in-law of Ashraf resident af village Bichhor. The complainant
suspected some mischief having been done by Rehmat and, therefore, he chased
him for about three killas. Rehmat realizing that he would be caught by the
complainant, turned back and opened fire from his country made pistol which
caused an injury on complainant's right leg. The complainant grappled with the
appellant. In the meantime, Vijay Singh, Hari Singh and Fateh Ram (Sarpanch)
reached at the spot and apprehended the appellant alongwith a country made
pistol of 12 bore with a belt having six cartridges. The complainant further
alleged that a few hours before the incident he had seen Jumma and Suraj alongwith
the appellant in the locality where his house is situated. It is alleged that
while overpowering the appellant, he had received injuries. The complainant was
then removed to Primary Health Centre, Punchanamas, where he was medically
examined. A ruqqa was sent to the Police Station for appropriate action. Nafe
Singh, S.I.reached at the hospital and recorded his statement (Ex.PD). A formal
FIR (Ex.PG/4) came to be registered. Nafe Singh, S.I. then went to the place of
occurrence at Bichhor where the appellant was produced by Fateh Ram (Sarpanch)
and Hari Singh with the pistol and a belt containing six live cartridges. The
appellant was then shown arrested. The weapon and the cartridges were seized
under the Panchnamas and were separately sealed. He was sent to RHC, Punchanama
for medical examination. On completion of the investigation, a challan was
filed in the Court and the appellant was put up for trial in two separate cases
as mentioned above before the Designated Court.
appellant denied the charges and pleaded that he was falsely implicated in this
crime. He stated that Ashraf son of Ramzani is related to him and the father of
the complainant and Ashraf were having a dispute over the canal water as their
lands adjoin to each other. The relations between complainant's father (Padam
Singh) and Ashraf were strained and since he is related to Ashraf, he has been
falsely implicated in this case. He further stated that he was assaulted by the
complainant party and had sustained injuries. He also pleaded the right of self
defence as he was assaulted by the complainant with a danda which was lying
near the tubewell of Ashraf. The election rivalry was also a cause for
involving him in this crime. He denied that he was having any weapon or
cartridges and stated that the recovery shown is false and concocted. The whole
prosecution case is false, he is innocent and be acquitted.
order to prove its case, the prosecution examined Dr. D.P.Gupta (PW 1), Het
Ram, draftsman (PW 2), Abdul Sattar, patwari (PW 3), Padam Singh (PW 4), Narain
Singh ASI (PW 5), Fateh Ram (PW 6), Randhir Singh (PW 7), Nafe Singh, Inspector
(PW 8) and tendered in evidence the report of F.S.L. (Ex.PN/1 to Ex. PN/3). The
appellant also examined D.P.Jain (DW 1>, Record Keeper of the Sessions
may first deal with Criminal Appeal No. 178/89 which arise out of conviction
and sentence of the appellant under Sections 307 and 393 IPC. The Learned trial
judge after Appraisal of the oral and documentary evidence on record led by the
parties held the appellant guilty for the aforesaid offences and accordingly
vide his impugned order sentenced him on each count to suffer five years RI.
Both sentences were directed to run concurrently.
R.P.Singh, the Learned Counsel appearing in support of this appeal urged that
the entire prosecution case is unbelievable as the prosecution has failed to
explain the injuries on the person of the appellant who was apprehendad on the
spot and handed over to the Investigating Officer at about 9.00 a.m. on 7th April, 1986.
The evidence of Dr. D.P.Gupta who examined the appellant on 7th April, 1986 at 4.10 p.m. noted as many as 13 injuries out of which seven were
lacerated wounds of different sizes. He then urged that all these injuries were
caused due to assault by the complainant with a danda. The defence plea of
assault on the appellant by the complainant appears to be more probable and,
therefore, he had a right of self defence. It is further urged that the
recovery of pistol and cartridges is again a cock and bull story which deserves
to be rejected.
Prem Malhotra, learned counsel for the respondent supported the impugned order.
have carefully gone through the ocular evidence and other materials on record.
Singh (PW 4) has stated that he saw the appellant running from the side of his
room at about 3.30 a.m. on 7th April, 1986 and, therefore, he chased him for 3 killas
and when he was about to overpower him, the appellant turned back and opened a
fire from his pistol which caused an injury on the back side of his right leg.
Thereafter, he caught the appellant and grappled with him. In the meantime,
Vijay Singh, Hari Singh and Fateh Ram reached at the spot.
then went to the Primary Health Center,Punchanama on bicycle with Vijay
Singh, for being medically examined. A ruqqa was sent to the Police Station
which is situated just opposite to the said PHC. Padam Singh (PW 4) in his
evidence has asserted that the appellant had opened a fire through his pistol
and was apprehended on the spot with the weapon and six live cartridges. This story
of Padam Singh (PW 4) is also caught to be corroborated by Fateh Ram (PW 6) who
claims that at the relevant time, he was going to a Temple.
these witnesses have failed to explain 13 injuries on the appellant, out of
which 7 were Lacerated wounds. Dr. Gupta (PW 1) has stated that he found these
injuries on the person of the appellant when he examined him on 7th April, 1986
at 4.10 p.m. It is not the case cf the prosecution that the appellant had
sustained these injuries prior to 7th April, 1986. According to the prosecution case, appellant was
apprehended on the spot and he was detained until handed over to the
Investigating Officer, Nafe Singh (PW 8). It was incumbent upon the prosecution
to place before the Court truthful version of the incident and explain how the
appellant sustained these injuries. No explanation whatsoever is coming from
the prosecution. It is in these circumstances the defence of the appellant that
he was assaulted by Padam Singh (PW 4) with a danda appears to us more probable
and consistent with the injuries sustained by him. If prosecution has
suppressed the true facts from the Court, then it is difficult to sustain the
conviction on such doubtful evidence on record.
There is also another aspect which goes in favour of the appellant. Admittedly Padam
Singh (PW 4) alongwith Vijay Singh had first gone to the Primary Health Centre
for medical help but he dia not disclose the name of the assailant to the
Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write
down the history of the injured but admittedly in this case, medical papers of Padam
Singh (PW 4) do not indicate the name of the assailant. The names were
disclosed only at the time when the complaint was recorded by 51 Narain Singh
at about 9.00 p.m. which was treated as a formal FIR.
The learned counsel for the appellant, therefore, rightly urged that the
appellant was later on implicated in the present crime at the instance of the
complainant and his friends. It may also be stated that the prosecution case
even otherwise appears to us improbable because Padam Singh (PW 4) claims to
have got up early in the morning and saw the appellant running from the side of
room at about 3.30 a.m. In these circumstances, is not possible to sustain the
conviction of the appellant under Section 307/393 of the Indian Penal Code.
Arising out of conviction and sentence under Section 25 of the Arms Act read
with Section 6 of the Terrorist and Disruptive Activities (Prevention) Act,
1985, we are of the opinion that the evidence adduced by the prosecution to
prove the guilt of the accused again suffers from The same infirmity as we have
discussed hereinabove. As stated earlier, the incident is one and the same.
After carefully going through the evidence of Fateh Ram (PW 1), Inspector Nafe
Singh (PW 2) and the seizure Panchanamas in respect of pistol (Ex.P1) and belt
(Ex.P3) containing six live cartridges (Ex.P4 to Ex.P9), we find that the said
evidence is nut credible and does not inspire confidence. Thus, the impugned
order of conviction of the appellant under Section 25 of the Arms Act read with
Section 6 of the terrorist and Disruptive Activities (Prevention) Act, 1985, is
unsustainable and is accordingly set aside.
the result, the Criminal Appeals Nos. 178-179 of 1989 are allowed. The impugned
judgments and orders are quashed and set aside. The bailbonds of the appellant
to stand cancelled.