IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No.518 of 2000 Date of Decision: 7th December, 2010 State of Himachal Pradesh Appellant. Versus Rajinder Singh and others Respondents. Coram The Hon’ble Mr. Justice R.B.Misra,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General. For the respondents: Mr. Neeraj K. Sharma, Advocate vice counsel. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed in the night intervening 10th and 11th June, 1999, accused were put to trial. In terms of judgment dated 9.6.2000 passed by the learned Addl. Sessions Judge, Solan, in Sessions Trial No. 15-S/7 of 1999 titled as State of H.P. vs. Rajinder Singh and others, accused stand acquitted of the charged offences. 2. It is the case of the prosecution that in the night intervening 10th and 11th June, 1999, H.C. Surender Kumar (PW-1) alongwith C.Sunder Lal (PW-9) and Home Guard Krishan Dutt (PW-15) were on night patrolling duty on the National Highway between Dharampur and Jabli. The vehicle Whether the reporters of Local Papers are allowed to see the Judgment? 2 in which they were travelling was being driven by Nek Ram. At about 1.30 a.m. when they reached at a place known as Rock Rose Resort, they noticed a Gypsy parked on the side of the road. Three persons were sitting on the parapet and two were sitting inside the Gypsy. Police stopped and made enquiries from the persons sitting on the parapet. Suddenly one of them, who later on was identified as accused Aman, started firing from the pistol in his hand towards C. Sunder Lal. Gun shot missed Sunder Lal but he caught hold of accused Aman. The other persons started giving beatings to Sunder Lal. Aman again fired three shots pointing towards Sunder Lal. This led to a scuffle between the police and the persons present at the spot. In the meanwhile driver sitting in the Gypsy reversed the vehicle with an intention of running over the police officials. All the three persons outside, after managing to free themselves from the clutches of the police party, boarded the Gypsy. In the meanwhile Shri Krishan Dutt (PW- 15) gave a blow with his stick to accused Rajinder Singh as a result of which he fell down. The Gypsy was driven with speed towards Kalka. In the meanwhile H.C. Surender Kumar (PW-1) managed to fire a gun shot from his carbine. Shot punctured the tyre of the Gypsy and the vehicle turned turtle. In the milieu, except for accused Rajinder Singh all assailants ran away from the spot. Accused Rajinder Singh was brought to the Police Station and FIR No.102 (Ext. PA) dated 11.6.1999 registered at Police Station Dharampur, under Sections 307, 353, 34 IPC and Sections 25,27 of Arms Act, 1959. Gun from which accused fired the shots left at the spot was recovered by the police and 3 deposited at the Police Station. In the police Station accused Rajinder Singh made disclosure statement (Ext.PW- 2/A) in the presence of Nanak Singh (PW-2) and Ashok Kumar (PW-11). Accused were arrested and identification parade carried out in the presence of Baldev Singh (PW-3). Weapon was sent to the Central Forensic Science Laboratory and opinion (Ext.PY) obtained by the police. Weapon of offence i.e. pistol (.380”) had five live cartridges which were seized vide seizure memo (Ext.PW-1/A). Report of the Chemical Analyst (Ext.PX) was obtained by the police. One empty cartridge of .380” bore pistol (Ext.P-7) and four empty cartridges (Ext.P-14 to Ext.P-17) were recovered from the spot vide memo (Ext.PW-1/C). Identification parade of accused Balvinder Singh alias Aman and Hardeep Singh alias Kala was carried out in terms of memo Ext.PW-3/A and that of accused Rajwant Singh alias Raja was conducted in terms of memo Ext.PW-4/A. Investigation further revealed that accused were travelling in a vehicle with forged documents and number plate. Accused were later on found to be travelling in another vehicle bearing false number plate by the police at Mohali and FIR in relation to that offence stands registered against them. Investigation at the spot was completed by the Investigating Officer Shri Bhishamber Singh (PW-17) and SHO Trilochan Sharma (PW-18). With the completion of investigation challan was presented in the Court for trial. 3. Accused were charged for having committed offences punishable under Sections 307, 353, 120 IPC read with Sections 25, 27 of the Arms Act, 1959, to which they did not plead guilty and claimed trial. 4 4. In order to prove its case prosecution examined 19 witnesses and statements of accused under Section 313, Cr.P.C. were also recorded in which they pleaded false implication. No evidence in defence was led by them. 5. Court below acquitted the accused, hence the present appeal. 6. In order to prove its case prosecution has to prove, beyond reasonable doubt, that accused hatched a criminal conspiracy to murder Constable Sunder Lal (PW-9) and that they used criminal force against public servants in discharge and in execution of duty with an intent to prevent them from doing the same. Prosecution has also to prove that accused were carrying unlicensed weapon in violation of the provisions of the Arms Act. 7. To prove its case, prosecution has essentially relied upon the testimonies of Surender Kumar (PW-1), Nanak Singh (PW-2), Baldev Singh (PW-3), Sunder Lal (PW-9), Ashok Kumar (PW-11), Krishan Dutt (Pw-15) and Trilochan Sharma (PW-18). 8. It has come in the testimony of PW-1 as also PW- 15 that incident took place at a time when there was pitch dark. PW-1 admits that he could not identify the persons sitting on the parapet and Gypsy due to darkness. Version of PW-15 is also to similar effect. In fact he states that “I do not known who fired from the pistol. I do not know who fired first whether police personal or accused personal”. 9. Now according to the police, accused Rajinder Singh was caught by PW-15 and taken to the Police Station where he made disclosure statement (Ext.PW-2/A). This 5 disclosure statement is alleged to have been made in the presence of Nanak Singh (PW-2) and Ashok Kumar (PW-11). PW-11 states that by the time he reached the Police Station statement already stood recorded and was read over to him. Importantly, there is no cross-examination on this point by the prosecution and this uncontroverted statement renders the prosecution version to be doubtful, if not false. Nanak Singh (PW-2) has not supported the case of the prosecution. He was declared hostile and in spite of his extensive cross-examination by the Public Prosecutor nothing fruitful could come out to even remotely suggest that he has falsely deposed in Court. In any event, he could not recognize the person, who had made the statement. 10. Patrolling party consisted of PW-1, PW-9, PW-15 and driver Nek Ram. Nek Ram has not been examined in Court. Why so, has not been explained. His examination was important for the reason that both PW-1 and PW-15 did not recognize any of the accused persons. In this background statement of PW-9 to the effect that from the pistol recovered by the police on the spot accused Aman had fired gun shot at him appears to be doubtful. It is not the case of PW-9 that he knew the identify of the accused from before or that he had heard the accused calling each other by name and thus had come to know about their identity. 11. According to prosecution, accused Balvinder Singh and Hardeep Singh were got identified by Sunder Lal, Krishan Dutt and Nek Ram in the presence of Constable Madho Ram. PW-3 is a police official. He is supposed to be well- versed with law. He admits that accused were not got mixed up with other persons and at the time of identification 6 only the said two accused were present. This is no identification parade in law. Importantly, PW-15 admits that when accused were identified in the Police Station there faces were not muffled. Similarly H.C. Gurmail Singh (PW-4), who is witness to memo (Ext.PW-4/A) whereby accused Rajwant Singh alias Raja, was identified by Sunder Lal, Krishan Dutt and Nek Ram in the presence of Constable Madho Ram, states that he had not read the document before signing the same. Also he does not state that proper procedure was adopted by the Investigating Officer at the time of carrying out identification parade. Importantly, Madho Ram has not been examined in Court. Further police has only examined police officials in support of their case. Except for PW-2 no person from the locality was associated at the time of identification parade or examined in Court. 12. PW-1 admits that police had taken impression of the finger prints on the pistol. Now this material has been concealed from Court. Were the fingerprints taken from the pistol compared with the fingerprints of the accused or not particularly accused Aman, has not been explained by the prosecution. This was the best piece of evidence, which would have linked the accused to the alleged crime. Unfortunately this piece of evidence is concealed. 13. We also find that the spot witnesses have contradicted themselves and also their version stands contradicted by the material on record. There are too many improbabilities. All this has rendered the prosecution case to be extremely doubtful. According to PW-1, accused 7 Aman first fired a gun shot at Sunder Lal (PW-9). Thereafter he again fired three shots from the same pistol. Now version of this witness is not corroborated by PW-9 as according to him accused Aman only fired one shot and the other persons sitting in the Gypsy fired at the police party. Importantly only one weapon was recovered by the police. As per report (Ext.PY) of the Forensic Science Laboratory magazine could load seven pistol cartridges of .380” and it is the case of the prosecution that five live cartridges were found in the magazine. The contradiction is glaring. Version of PW-15 is yet something else. We are not going into it. 14. Further according to the version of PW-1, scuffle between the two groups went on for about 20 minutes. It is a specific case of PW-1 and PW-9 that the accused gave beatings to PW-9 with fist blows. Had it been so, PW-9 would have definitely suffered some injuries on his body. There is no medical evidence on record to corroborate this fact. 15. Now, if according to PW-1 three persons were sitting in the parapet and two persons were sitting in the Gypsy then how is it that trial is only against four. Who is that 5th person and why no action has been taken is not evident from record. It is not the case of the prosecution that 5th person could not be traced or identified. 16. According to PW-9 accused Rajinder Kumar was dragged by PW-15 after a blow with a danda was given. Now no injury marks were found on the body of accused Rajinder Singh. 8 17. The contradictions are glaring leading to the root of the matter. Thus in our considered view, it cannot be said that prosecution has been able to prove, beyond reasonable doubt, the culpability of the accused in relation to the alleged crime. 18. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B.Misra) Judge. 7th December, 2010 (Sanjay Karol) (C) Judge.