IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 770 of 2002 Date of Decision 14th October, 2011 ________________________________________________________ State of Himachal Pradesh. ….Appellant Versus 1. Ravinder Prakash, s/o Sh. Dhani Ram, r/o Mouna, Pargana Behal, Tehsil Chopal, District Shimla HP. 2. Hira Singh, son of Sh. Sania Ram, r/o village Pen-Kuffer Tehsil Chopal, District Shimla HP …..Respondents Criminal Appeal under Section 378(3) of the Code of Criminal Procedure. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General For Respondent No.1: Mr. Abhishek Sood, Amicus Curiae For Respondent No.2: Mr. Abhishek Sood, Advocate vice Mr. Ramkant Sharma, Advocate. __________________________________________________________________ Dev Darshan Sud, J.(oral) This appeal has been preferred by the State against the judgment and order of the learned Sessions Judge, Shimla 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 acquitting the respondents-accused for offences under Section 307 of the Indian Penal Code (hereinafter referred to as the IPC) and Section 25 of the Arms Act. 2. The brief facts necessary for determination of this appeal are that FIR Ext.PA was instituted on the complaint of Lachhi Ram PW1 who stated that on 12.8.1997 at around 5 PM when he alongwith his wife Satya Devi PW3 and Kewal Ram Up- Pradhan of Gram Panchayat were sipping tea in the kitchen the accused barged in with a gun in his hand and shouting that in case complainant (Lachhi Ram) did not come out of the kitchen, he would kill his wife Satya Devi PW3 and Kewal Ram Pardhan. The prosecution case then proceeds that Kewal Ram prevented Pardhan Lachhi Ram from going outside. The children of the complainant, who were returning from school noticed this fracas and raised an alarm, when Lachhi Ram came outside to take his children, the accused fired at him in which he and his children had a narrow escape. The pellets from the cartridges of the gun hit the wooden planks of the verandah. The accused then started re-loading the gun and in this interval, the complainant and his children managed to escape. On hearing the hue and cry raised by the children, Ramesh. Ward Panch of the area, Beli Ram and Kanwar Singh also reached the spot and dragged the accused away. FIR Ext.PA was lodged on 14.8.1997 on the explanation furnished by the complainant that it was raining very heavily on 12.8.1997. 3. The prosecution case is that accused Ravinder Prakash was armed with one 12 Bore Single Barrel Breach Loading loaded gun which was taken into possession by the 3 police along with ten pellets which were lodged in the wooden planks. 4. The trial Court considers and rightly so that the recovery of weapon Ext.P-1 has not been proved on record because Sudershan Thakur PW9 witness to the recovery and Kalyan Singh PW8, who produced the gun of his father Hira Singh, have turned hostile. But it was submitted that considering the fact that pellets have been found lodged in the wooden planks in the house of the complainant, itself proved that the gun had not been used in the assault. At this juncture, we note the submission made by PW8 Kalyan Singh. He says that he did not hand over the gun to the police, but in fact in July, 1998 the police came to his house and took it away. Sudershan Singh PW9 also says that he was called to the police post Rajgrah and PW8 Kalyan Singh did not hand over the weapon to the police in his presence. Gopal Singh, who was the other prosecution witness, was not examined. We note at this juncture that the cross examination of these two witnesses who had turned hostile does not yield anything as there is nothing to destroy the veracity of their testimonies. Rather they are firm in what they stated in their evidence and that is that the weapon in question was never produced by accused Hira Singh, but was taken away. 5. On the question of assault, the learned Court considered the evidence of PW1 Lachhi Ram, PW2 Kanwar Singh and PW3 Satya Devi, wife of complainant PW1 Lachhi Ram. Both PW1 complainant Lachhi Ram and PW3 Satya Devi stated that accused Ravinder Parkash had in fact shouted at them. He says that prior to this, he (accused) had a quarrel with his niece and in 4 that case, he supported her against the accused. To similar effect is the statement of Satya Devi, who in fact says that her husband was injured in the attack. 6. We now advert to the evidence of PW2 Kanwar Singh who has been declared hostile. He says that police had come to their village 4/5 days after the incident. His son and daughter of the complainant came to his house and were crying when they told him that a gun shot had been fired at PW1 Lachhi Ram. He denied having see the accused at the place of occurrence. Later on, in his cross examination, he admits the presence of Ravinder at the spot. The report of Central Forensic Science Laboratory says that one 12 bore SBBL gun was received and as per the opinion, it is stated that the gun is in working order. This is the entirety of the evidence. 6. The learned Court below, while considering the evidence of witnesses, holds that recovery of the gun having not been proved, the question of its use in the offence did not arise at all as the recovery of gun was a foundational fact to be proved for the events which occurred subsequently. What we find from the evidence on record is that as noticed by us, recovery of the gun has not been proved. Two of the witnesses as noticed above, have turned hostile. The son of the accused Kalyan Singh PW8 who was supposed to have produced the gun has denied its recovery and so has PW9 Sudershan Thakur. Their testimonies have been firm, where in examination in chief or in cross examination they have stated that no such gun was recovered by the police. Rather they visited the house of Hari Singh and took the gun in possession. The other witness Gopal Singh has 5 not been produced in evidence for reasons best known to the prosecution. This was an important fact to have been established on record by clear and cogent evidence. We cannot take a different view than the one which has been taken by the learned trial Court. We accept the submission made by the learned Senior Additional Advocate General that it is not the number of witnesses who prove facts, but the quality of evidence. We fail to find any evidence to connect the gun with the accused. We may also note that report of the Central Forensic Science Laboratory Ext.PW13/B only shows that gun was in working order. The prosecution has not made any attempt to show that pellets supposedly recovered from the spot had in fact been discharged from this gun. In these circumstances, the other evidence on record looses its significance. There is no merit in this appeal. It is accordingly dismissed. Bail bonds furnished by the respondents are discharged. (R.B. Misra), Judge (Dev Darshan Sud) October 14,2011 Judge (ms)