Husna & Ors Vs. State of Punjab [1996] INSC 123 (23 January 1996)

Anand, A.S. (J) Anand, A.S. (J) Nanavati G.T. (J) Dr. Anand, J.

CITATION: 1996 SCC (7) 382 JT 1996 (2) 40 1996 SCALE (1)493

ACT:

HEAD NOTE:

The appellants were tried for offences under Sections 302/34 and 449 IPC by the learned Judge of the Special Court. Appellants Husna and Jalour Singh were also tried for an offence under Section 25 of the Arms Act. Vide Judgment dated 18.4.1985, the trial court convicted appellant Husna for an offence under Section 302 IPC and sentenced him to life imprisonment. He was also convicted for an offence under Section 449 IPC and sentenced to undergo seven years R.I. and for the offence under Section 25 of the Arms Act to nine months R.I. Appellant Rupa was convicted for an offence under Section 302/34 IPC and sentenced to life imprisonment.

He was also convicted for an offence under Section 449 IPC and sentenced to undergo seven years R.I. Jalour Singh appellant was acquitted of the charges under Section 302/34 IPC and 449 IPC but convicted for the offence under Section 25 of the Arms Act and sentenced to undergo nine months R.I.

Through this statutory appeal, the appellants have called in question their conviction and sentence. Since the appeal was received from jail, an amicus curiae was appointed for the appellants.

According to the prosecution case on 28th April 1984 Sadhu Ram PW1 was present at his house at about 9 p.m. along with his wife Kaushalya PW4, Satish Kumar (deceased) and other children. Two persons committed criminal trespass into the house with their faces muffled armed with pistols. Sadhu Ram PW1 raised an alarm and snatched away the pistol from one of the two intruders. During the scuffle, the face of one of the intruders got unmuffled. Satish Kumar, deceased, came to the help of his father. At the exhortation of appellant Rupa. Husna appellant fired a shot which hit Satish Kumar on his face and he fell down. Both Rupa and Husna ran out of the house where Jalour Singh armed with a pistol was already waiting. All the three accused then ran away. Sadhu Ram PW1 went near Satish Kumar and found him dead. Accompanied by Sham Lal and Malkiat Singh, Sarpanch of the village, Sadhu Ram PW1 went to police station to lodge a report. Formal FIR Ex.p1 was recorded on the basis of that report. Investigation was taken in hand and the investigating officer reached the house of PW1. Smt. Kaushlya PW4, the mother of deceased Satish Kumar was sitting near the dead body alongwith some other members of the family and interrogated. She became hysterical and could not give any clue or details of the occurrence. An inquest report was prepared and the dead body sent for post mortem examination. An empty cartridge of 315 bore was taken into possession from the spot, vide recovery memo Ex.p5. It was sealed into a parcel. A blood stained brick was also taken into possession vide memo Ex.p6. Later on two more empty cartridges of 315 bore and one empty cartridge of 32 bore were also recovered and taken into possession vide memo Ex.p7. The post mortem on the dead body was performed by Dr. Anup Sood PW7, which revealed the presence of an ante - mortem lacerated punctured wound with inverted marging to the doctor was caused due to shock and haemmrohage as a result of the aforesaid injury which was opined by him to be sufficient in the ordinary course of nature to cause death.

Since, no names of the assailants had been disclosed in the FIR, during the investigation a supplementary statement of PW1 was recorded in which he gave the names of the accused.

Appellant Husna and Jalour Singh were arrested on June 3, 1984 and weapons recovered from them. Rupa appellant stood already arrested in some other case and was formally shown as arrested in the present case on June 12, 1984. The empties recovered from the spot and the pistol recovered from Husna appellant were sent to the Director, Forensic Science Laboratory, Chandigarh who vide his report Ex.p18 opined that the empty recovered from the spot was found to have been fired from the pistol of Husna appellant. The prosecution with a view to connect the appellants with the crime examined Sadhu Ram PW1 besides Jit Singh PW2, draftsman PW5, investigating officer PW6 and Dr. Anup Sood PW7. Avtar Singh PW3 and Smt. Kaushalya PW4 were also tendered for cross-examination. The prosecution also filed the affidavits of police officials, whose evidence was of a formal nature at the trial. In their statements recorded under Section 313 Cr.P.C., the appellants denied the prosecution allegations against them and pleaded false implication.

We have heard learned counsel for the parties and examined the record.

The trial court acquitted Jalour Singh appellant of the charges under Sections 302/34 IPC and 449 IPC and the State has not filed any appeal against his acquittal. So far as the recovery of the pistol from him at the time of his arrest is concerned, the evidence of the investigating officer has remained unchallenged on that aspect of the case in the cross- examination. The statement of the investigating officer is supported by the recovery memos also. Learned counsel for the appellant was unable to point out any infirmity in the order of the trial court convicting Jalour Singh for an offence under Section 25 Arms Act. In our opinion, the conviction and sentence of the appellant Jalour Singh for the offence under Section 25 of the Arms Act is well merited and we do not find any reason to interfere with the same.

Coming now to the case of appellants, Husna and Rupa.

As already noticed, in the FIR the names of both the appellants were found missing. They were only named in the supplementary statement of PW1 recorded during the investigation and in our opinion that statement, which was recorded during the investigation and in our opinion that statement, which was recorded during the investigation was hit by Section 162 Cr.P.C. and the trial court could not have relied upon the same as a part of the FIR. All the three appellants are brothers. No overt act has been ascribed to Rupa appellant during the entire occurrence. It seems rather improbable that if PW1 had allegedly snatched away a pistol from Rupa appellant before Husna fired a shot at Satish Kumar, he would not have fired the same to prevent Husna from firing the shot. Besides no empty recovered from the spot has been connected by the ballistic expert with the pistol allegedly recovered from Rupa appellant. After carefully analyzing the evidence on the record, we are of the opinion that the prosecution has not been able to satisfactorily establish the case against appellant Rupa beyond a reasonable doubt. The possibility that he was named being the brothers of Husna cannot be ruled out. His presence at the time of occurrence has not been satisfactorily proved. His conviction and sentence for the various offences as recorded by the trial court therefore cannot be sustained.

That Satish Kumar died as a result of a fire arm injury, as found by Dr. Anup Sood PW7, admits of no doubt.

It was neither questioned in the trial court nor even before this court. The statement of PW1 to the effect that it was Husna appellant who had fired the shot at Satish Kumar inspires confidence and receives ample corroboration both from the medical evidence as well as the report of the ballistic expert, who found the empties recovered from the spot to have been fired from the weapon recovered from Husna appellant. Since, the empties had been sent to the ballistic expert much before Husna appellant was arrested and the weapon recovered from him, there is underlying assurance of the correctness of the prosecution case against him since the ballistic expert opined that the empties which had already been received by him had been fired from the weapon sent to him after the arrest of Husna, appellant. The evidence on the record has, thus, brought home the charge to appellant Husna beyond every reasonable doubt and his conviction and sentence for the various offences as recorded by the trial court is well merited and calls for no interference.

As a result of the above discussion, the appeals of Husna and Jalour Singh appellants are dismissed. The appeal of Rupa appellant is allowed and giving him the benefit of the doubt, he is acquitted of all the charges. He shall be released from custody forthwith if not required in any other case.

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