IN TH E H IGH COURT OF UTTARAKH AND AT NAINITAL Cr im in a l Ap p ea l No. 146 of 20 0 3 Dated of Decision : 22.0 4.20 10 Jaswant Singh …Appellant Versus State of Uttarakhand …Respondent Present: Mr. Pankaj Miglani, learned Amicus Curiae for the appellant. Mr. Nandan Arya, learned A.G.A. for the respondent. H on ’ble Nir m a l Yad a v, J . Present appeal is directed against the judgment and order dated 21.04.2003 passed by Additional Sessions Judge/ III F.T.C., Udham Singh Nagar in Sessions Trial No.192 of 2002 whereby the accused appellant Jaswant Singh @ Jassu, Harnam Singh @ Fauzi and Harkewal Singh @ Laddu were tried for the offence punishable under section 307 Indian Panel Code, 1860 (hereinafter referred to as IPC) and Jaswant Singh & Harnam Singh were also tried for the offence punishable under section 25 of the Arms Act. The trial court after taking into consideration the evidence available on record, acquitted Harnam Singh and Harkewal Singh of the charges framed against them. However, appellant Jaswant Singh has been convicted under section 307 IPC and was sentenced to undergo rigorous imprisonment for two years and fine of Rs. 1,000/ - and in default of payment of fine, three months simple imprisonment was awarded. The appellant Jaswant Singh was further convicted in Sessions Trial no.196 of 2002 under section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for one year. 2 The facts, in brief, are that on 15.05.2002 at 08.15 p.m., report was lodged by D.K. Sharma, S.H.O., Gadarpur on the basis of recovery of one country-made pistol of 12 bore, two live cartridges, one empty cartridge and one Hero Honda motorcycle and an amount of Rs.1,50,000/ - while he was going in connection with the investigation of case bearing no.174 of 2002 under section 392/ 397 I.P.C. On the basis of the said 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/ 2002. When police party reached near the bridge of Bore river, a secret informer told them that accused persons who had looted a motorcycle and money from the businessman dealing in the fruits, were coming from Haripura side. On this information, S.H.O. tried to join some independent persons but none agreed. However, in the meantime the complainant of case no. 174 of 2002 Anil Kumar alongwith Dinesh Kumar reached there and they were joined in the police party. Thereafter, police party noticed that three persons riding on a motorcycle were coming from Haripura side. Police officials stopped the motorcycle but motorcycle fell down and accused fired at the police party in an attempt to kill them. With great efforts, one of the accused was apprehended who disclosed his name as Jaswant@ Jassu@ Chandni@ Channi while two accused successfully escaped from the spot. From the possession of Jaswant Singh, one country- made pistol of 12 bore with one empty cartridge and two live cartridges were recovered from left side pocket of his pant and a gray rexine bag containing the currency of Rs.1,50,000/ - was also recovered from him. The accused appellant disclosed the name of his accomplice. He also disclosed that money recovered from him was looted by them from a businessman dealing in fruits. They were going to distribute the booty amongst them when they were apprehended. 3 Investigating Officer prepared necessary memos and took the articles in possession. Other accused were arrested. On completion of investigation, challan was presented and accused were charge sheeted under section 307 IPC while Harnam Singh and accused appellant Jaswant Singh were charged under section 25 of the Arms Act to which they pleaded not guilty and claimed 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 time of occurrence recorded the F.I.R. A.S.I. Amar Singh Negi (PW2) and Constable Dhal Gopal Singh (PW5) are the witnesses in whose presence appellant accused was apprehended and country-made pistol was alleged to have been recovered. They were also present during the course of entire investigation. S.I. Jagdamba Prasad (PW3) is the investigating officer of this case, while S.I. Malkit Singh (PW4) investigated the case against Harnam Singh under section 25 Arms Act. The accused were examined under section 313 Cr.P.C. and they denied all the allegations of prosecution and claimed innocence and false implication. Accused Jaswant 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 307 IPC and Harnam Singh under section 25 of the Arms Act also. However the trial court convicted the appellant Jaswant Singh under section 307 IPC and 25 of the Arms Act. 4 Heard Sri Pankaj Miglani, learned Amicus Curiae for the appellant, Sri Nandan Arya, learned A.G.A. for the State/ respondent and perused the material 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. Sharma, Gadarpur for investigation of the case no.174 of 2002 under section 392/ 397 IPC. A.S.I. Amar Singh Negi (PW2) and Const. Dhal Gopal Singh (PW5) stated that the Investigating Officer tried to join some 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 Kumar and complainant Anil Kumar whose motorcycle and amount of Rs.1,50,000/ - 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 come 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 testimony 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- made 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-made 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 empty 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 miserably failed to substantiate that any case for attempt to murder under section 307 IPC is made out. On the other hand, learned A.G.A. controverted the arguments raised by learned counsel for the appellant and submitted that there is nothing on record to prove that police officials were having any enmity with the accused or they had any reason to falsely implicate 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 testimony of the police officials if their statements are consistent and reliable. After taking into consideration the rival submissions raised by learned counsel for the parties and the documents available on record, this Court is of the view that the findings of the trial court are perverse and misconceived. The trial court has not considered the evidence in the proper perspective. 6 There is no doubt that conviction can be based on the testimony of police officials, if they are reliable and worthy of credence. Some times, 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 2002 under section 392/ 397 I.P.C. An information was received through a secret informer that accused persons are likely to come from Haripura side. Police had reached the place of occurrence at 05.00 p.m. and accused reached there half an hour thereafter. It is also admitted by A.S.I. Amar Singh Negi (PW2) and Const. Dhal Gopal Singh (PW5) that Anil Kumar complainant of case no.174 of 2002 and Dinesh Kumar had joined the police party. However, they have also not been cited as witnesses. In the circumstances and in the absence of independent corroboration, it creates serious doubt in the prosecution case which is based only on the testimony 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 Jaswant Singh. The alleged country-made pistol and live cartridges have not been produced in the court. The cartridges as well as country-made 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-made 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 Amar 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 Jaswant Singh or his other two accomplice who have been acquitted by the trial court. In the absence of any cogent and independent evidence, it can not be presumed that any shot were fired by the appellant accused Jaswant Singh @ Jassu at the police party. After going though the testimony of PW2 Amar Singh Negi and PW5 A.S.I. Dhal Gopal Singh, it seen that they have admitted in clear terms that the prosecution has not produced the case property i.e. country-made pistol and live cartridges in the court. It is also admitted by PW4 S.I. Malkit Singh that he did not take the opinion of any Ballistic expert that recovered country-made pistol was in working condition or not. In the absence of any cogent and independent evidence, the conviction of the appellant under section 307 I.P.C. and under section 25 Arms Act can not be sustained. I therefore, allow this appeal, set aside the judgment and order dated 21.04.2003 passed by Additional Sessions Judge/ III F.T.C., Udham Singh Nagar and acquit the appellant. (Nir m a l Ya d a v, J .) JKJ 22.0 4.20 10