S.B. Crl. Appeal No. 194/88 1 (Prema Ram & Anr. Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1)-Prema Ram S/o Mohan Lal (2)-Rajendra Kumar s/o Hari Ram vs. State of Rajasthan S.B. CRIMINAL APPEAL NO. 194/1988 Against the judgment & order dt. 20.04.1988 passed by Additional District and Sessions Judge, Bikaner in Sessions Case No. 11/1985. Date of Order : 23rd April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. M.K. Garg ] for the accused appellants. Mr. Niranjan Singh ] Mr. A.R. Nikub, Public Prosecutor. BY THE COURT: Appellants Prema Ram and Rajendra Kumar alongwith Banwari, Uma Shankar, Balbir Singh faced charge for the offences of Section 399, 402 IPC and 24 Arms Act before the court of Additional Sessions Judge, Bikaner in Sessions Case No. 11/85 and as per judgment dated 19/20.04.88 learned Judge acquitting two others convicted appellants for the offences of Section 25 Arms Act sentenced each to one year rigorous imprisonment with fine of Rs. 1000/-, in default three months rigorous S.B. Crl. Appeal No. 194/88 2 (Prema Ram & Anr. Vs. State) imprisonment - aggrieved of their conviction, two appellants have preferred this appeal. Heard learned Advocate appearing for the appellant and also learned Public Prosecutor. Factual matrix emerging is some what like that on 09.05.85, Constables Pradeep Kumar PW/3 and Asu Singh PW/7 of GRP, Sriganganagar were on duty on train 1 BHL - Hanumangarh to Bikaner. As train reached near Gajsinghpur, CTI of train Prabhudan PW-16 told them of 4-5 persons abusing passengers in general coach who perhaps possessing some arms are talking of robbing the train, so both constables alongwith CTI reached in the coach where passengers Tara Chand PW/5, Mangat Ram PW/9 and Jasvir Singh PW/10 told that five persons in drunken state are talking of robbing the train and also a Chhapra Ki Dhani and use of pistols. Constables searching each of these found (i) below pyjama of Balbir Singh found a local pistol and in pocket 3 live cartridges having mark 3KF325GWL (iii) below pant of Prema Ram a local made pistol (iv) with Rajendra Kumar a local made pistol and as none of them had any licence these articles were taken into possession by these constables - and on query they admitted of planning to have robbery at Chhapra ki Dhani, near Arjunsar. It is alleged that on search of bag, with them found was chilli powder to be used in robbery and Banwari told of throwing away the pistol from running train while (v) Uma Shankar of throwing away eight live cartridges on observing police men. Constables S.B. Crl. Appeal No. 194/88 3 (Prema Ram & Anr. Vs. State) with these persons returning from Suratgarh to Ganganagar by other train and in morning at 6 AM, presented these persons with the above mentioned arms before SHO PW-13 at PS GR. On this information, registering FIR No. 22/85 for the offence under Sections 398, 399, 34 IPC and Sec. 25 of the Arms Act Ex.P/2, SHO seized and sealed articles recovered as per above – Constables and arrested them making memos Ex.-P/3 to Ex.-P/11. Articles kept safe in malkhana. Meanwhile, at around 10 PM on 9.5.1985 railway employees Bhoor Singh PW/1 before Lal Chand PW/2 and Lalan PW/5 finding a pistol at Suratgarh near railway line no.2, deposited the same with Station Superintendent, Gajsinghpur PW/14. This pistol taken by SHO PW/13 preparing memo Ex.P/1. Articles recovered were examined by Armour PW/8 preparing reports Ex.P/15 to Ex.P/18. After usual investigation and obtaining prosecution sanction, charge-sheet submitted for the offences of Ss. 398, 399, 402 IPC and 25 Arms Act and on committal by Magistrate Court registered is Sessions Case No. 11/85. Charged for the offences of Ss. 402, 399 IPC and 24 Arms Act, accused persons claimed trial. Prosecution examined 16 witnesses who are Pradeep Kumar PW/3 and Asu Singh PW/7 Constables who were on duty and Prabhudan CTI of train PW/16 – PW/5, PW/9 and PW/10 are passengers who are declared hostile. Chetan Ram PW/4 home guard is motbir of memos prepared at Police station and other motbir PW/11 is declared hostile. PW/1, PW/2 S.B. Crl. Appeal No. 194/88 4 (Prema Ram & Anr. Vs. State) and PW/5 are railway employees who finding the pistol deposited it with Station Superintendent PW/14. Sealed packed delivered Ratan Singh PW/12 to Armour PW/8 who after examination prepared report. RP Sharma PW/13 SHO is the investigating officer. Constable Ratan Singh PW-12 getting packets of articles from malkhana incharge PW-4 delivered at police line, Ajmer to Head Constable Armour Munshi Ram and he examining them prepared reports Ex.P/15 to Ex.-P/18 and resealed articles which are exhibited as Art.1 to Art.8. As per the appellants the witnesses telling lie and nothing recovered from their possession. Learned Sessions Judge arrived at conclusion that in possession of appellants Rajendra Kumar, Prema Ram and accused Balbir Singh each was pistol with no licence and accordingly, convicted and sentenced for the offence of Section 25 Arms Act. Learned Advocate for the appellants argued that (1)-entire prosecution case is highly doubtful – inherently improbable (2)-basic inconsistent and divergent version narrated by the witnesses (3)-no independent witness support or even corroborate testimony of police personnel (4)- none of the passengers named in the FIR state any such incident (5)- acquitted of charges under Sections 399 and 402 IPC, then on the same evidence cannot be conclusive of possession of arms as facts are closely inter knit. Argued that CTI PW-16 is the person who S.B. Crl. Appeal No. 194/88 5 (Prema Ram & Anr. Vs. State) very first came across the same but he do not identify any of appellants and also could not say what recovered from whom – tickets though admittedly these persons had to travel in this train but not seized – no liquor or container recovered though allegedly consuming and in drunken state. Emphatically argued that the articles were taken into possession by the police-men itself but neither any memo prepared nor any independent eye witness. Extensively reading statement submitted that no such matter reported at Suratgarh where GRP police chowki is and from there without any reason returned Ganganagar where allegedly reported at police station at 6.00 a.m. so delay atleast of 12 hours also in reporting the matter to higher officers. Submitted that it is not safe to rely on evidence of police Constables in such circumstances. Lastly submitted that as every appellant has remained in custody from some months during trial and about 25 years have elapsed and they in employment so if found guilty deserve benefit of probation. Learned Public Prosecutor argued that in possession of each appellant is proved to have possessed and learned trial judge very minutely analysing the matter has held possession of fire arms without licence proved. Submitted that acquittal of other offences have no bearing. Considered rival submissions and perused the record and also the judgment assailed. S.B. Crl. Appeal No. 194/88 6 (Prema Ram & Anr. Vs. State) Admittedly and as per testimony of Constables PW-3, PW-7 and also SHO PW-16 no document whatsoever was presented prior to registering the FIR Ex.-P/2. It is prosecution case that all these articles - arms and cartridges - were taken by PW-3 in his possession while making search at 10.45 – 11 p.m. The SHO PW-16 admits and as also is apparent from the memos that articles were presented at police station by Constable Pradeep PW-3 in the morning. Considering this is to be examined whether a pistol and also cartridge was in the possession of each appellant. For this as passengers are declared hostile and do not support prosecution now evidence is only that of Constables PW-3, PW-7 and CTI PW-16. Prabhudan, CTI states that on 9.5.1985 he was on duty on train 1BHL – Hanumangarh to Suratgarh and at 10.35 p.m. when train arrived at Gajsinghpur and he checking the train 4-5 passengers of general coach told him that in coach some unwanted persons, who consuming liquor expressing themselves to be Excise personnels are telling and talking of taking search. Informed this PW-16 going in coach when asked these persons for ticket one of them uttered to take him (PW-16 Prabhudan) in and also spoke of not having tickets so and as PW- 16 felt persons to be dangerous one went away and brought GRP Constable Pradeep, Asu Singh and a home guard personnel. PW-16 narrates that constables asked names and addresses of all these persons and then searched them and on searching with three persons were found revolvers. PW-16 naming only one has identified one appellant but in S.B. Crl. Appeal No. 194/88 7 (Prema Ram & Anr. Vs. State) definite terms narrate that they were five and all of them searched and taken away by GRP personnel. From the testimony of this witness PW-16 it appears that some persons were making trouble so PW-3 and PW-7 were called who searched these five persons and found revolvers with three. In this case three revolvers seized at the spot and five persons were made to accompany them by PW-3 and PW-7 who both state that on 9.5.1985 they were on this train Ganganagar to Sadulshahar then Sadulshahar to Ganganagar and as train reached station Gajsinghpur CTI PW-16 told them that 4-5 persons sitting in general coach in drunken state are abusing and threatening passengers so they went to that coach and checked. PW-3 states that in presence of passengers these persons were searched and in their possession they found three country revolvers and three cartridges - one told them of having thrown away revolver and Uma Shankar told of throwing away eight cartridges. According to PW-3 they taking possession of these articles returned from Suratgarh back to Ganganagar by train 2 SHL and there he reporting matter presented those five persons and above articles to the SHO. Pradeep Kumar PW-3 also states that making search in a bag of those accused also was found Chili Powder, which was also seized. In cross-examination deposes that from the possession of Balbeer Singh, Rajendra and Prema Ram, three pistols were taken and no memo made and all five had tickets which were not S.B. Crl. Appeal No. 194/88 8 (Prema Ram & Anr. Vs. State) seized, and that Prabhu Dan CTI was with them. According to Asu Singh PW-7 when they reached in coach there sitting were 4-5 persons and none of them in drunken state who were checked and interrogated. PW-7 also states that on searching Prema Ram in and below his pent was a pistol and on search Rajendra below and on his pent also they found a pistol. In payjama of Balbeer was a pistol and three cartridges. Banwari told of throwing away pistol and Uma Shankar also throwing away eight cartridges and in bag of Prema Ram was Chilli powder then they taking all these articles in their possession, went from Suratgarh to Ganganagar and reported matter handing over persons and articles. PW-7 in cross-examination states that Gajsinghpur reached around 11.00 p.m. and then train stopped at Raisingh Nagar for two minutes then stopping 2-3 stations of Mohan Nagar, Jaitsar, Swaroopsar reached Suratgarh. Not reporting at GRP Police Station Suratgarh, they in night at 1.00 O'clock boarded train Suratgarh to Ganganagar 2SHL and going to Suratgarh to Ganganagar and PW-7 states that at Suratgarh GRP chowki where matter not reported about 5 persons were checked and searched and in their possession found three pistols and three cartridges. From the evidence of CTI PW/16 it definitely emerges that some trouble occurred which made PW-3 and PW-7 to interrogate and search five persons and in search found were three pistols and three cartridges. Thus search and possession of three pistols and three cartridges is proved. As search and possession of these articles with those persons is S.B. Crl. Appeal No. 194/88 9 (Prema Ram & Anr. Vs. State) proved then appears no reason not to accept version of PW-3 and PW-7 as to in possession of which person amongst those five which article was. As substantial part of statement of PW-3 and PW-5 find support and corroboration by testimony of PW-12 then entire version of PW-3 and PW- 7 including as to in whose possession articles were is trustworthy. In addition to above from the evidence of railway employees PW-1, PW-2 and PW-12 read with evidence of station master PW-14, it is proved that a pistol was found at about 10 -11 p.m. of the same night near railway line at Gajsinghpur railway station. PW-3 and PW-7 both state that one from these five persons told that he on looking police man coming has thrown a pistol and similarly other told of throwing eight cartridges. From the possession of these two persons who told so nothing recovered but from other three persons including appellants three pistols are recovered. If a pistol is found just near the railway station at around that time then it fully proves the version given by PW-3 and PW-7. PW-1 deposes that he a fitter driver was on duty on 9.5.85 and in night at 10.00 when both trains departed and as he was going to start pump he saw a pistol being at line no.2 so he picking it deposited with Station Superintendent. PW-2 Lal Chand Points man states that at around 10.15 p.m. as trains departed Bhoor Singh when going for starting pump found a pistol lying near line no.2 which was deposited with station superintendent. Similarly, PW-15 states that he is railway employee at station Gajsinghpur and pistol found to Moolchand near railway line was S.B. Crl. Appeal No. 194/88 10 (Prema Ram & Anr. Vs. State) taken by police from Dhiren Singh making memo Ex.P/1 which bears his signature. Dhiren Singh PW/14, the then Station Superintendent, Gajsinghpur depose that when he was on duty in night Mool Singh pump driver bringing a pistol handed over it to him and he keeping it in safe informed GRP, Ganganagar then the police seizing this pistol prepared memo Ex.P/1 which bears his signatures too. SHO PW-16 testifies that pistol was not used too presented by Dhiren Singh PW-14 was seized by him preparing memo Ex.P/1. As also is mentioned in this memo Ex.-P/1 the same was seized on 10.5.1985 at 11.00 p.m. and it contained a empty cartridge. As such there is no doubt about it that the pistol was found on 10.5.1985 at 10.30 p.m. and at just side of railway line near the railway station, Gajsinghpur. Finding of this pistol there by PW3 and PW/7 proved no doubt can be about and this fact substantial corroborating and supporting PW-1 and PW-3 leads to inference that version as given by PW-1 and PW-3 is correct. As such, it is proved that each appellant possessed pistol without any licence the pistol was carried by them in train and was below their clothes. For sentence on behalf of appellants, submission is that as appellants are in employment of Government department and by now since 24-25 years have elapsed, they should be extended benefit of provisions of probation Act. Vehemently submitted that if not given benefit of probation, the conviction may adversely affect their employment S.B. Crl. Appeal No. 194/88 11 (Prema Ram & Anr. Vs. State) leading to consequences affecting their livelihood. For this, reliance placed on this Court judgment dated 20.11.06 in s.B. Criminal Revision Petition No. 231/2006 Ram Singh & Ors Vs. State of Raj. - for offences under IPC. Here both the appellants and one other accused each possessing pistol without license were travelling in train. It appears from the record that the appellant Prema Ram remained in custody from first week of May, 85 to first week of November, 85, then first week of June, 87 to last week of November, 87 and then again from 20.04.88 to 19.05.88. Appellant Rajendra was in custody from first week of May, 85 to first week of November, 85, for one week in November, 87 and then from 09.04.88 to 19.5.88. Thus, each accused has undergone beyond six months and sentenced awarded is of a year. As each appellant has remained in custody as above and long years have elapsed, so no useful purpose would be served by giving such sentence as to be now in imprisonment. Considering the period of custody, it is appropriate to sentence them for the period already undergone, so no question now arises for considering probation. Regarding effect on employment, this question need not be examined atleast now in this case. The effect on employment, this question is to be examined by the concerned department (employer) as per applicable serrvice conditions, rules, practice, procedure and/or administrative guidelines including relaxation with or without conditions there to as may be. Thus, S.B. Crl. Appeal No. 194/88 12 (Prema Ram & Anr. Vs. State) maintaining conviction of appellants for the offence of Section 25 Arms Act and sentencing for the period already undergone, the appeal stands decided. Partly allowing the appeal, the conviction for the offence under Section 25 Arms as arrived by learned Additional Sessions Judge, Bikaner in Sessions Case No. 11/85 is maintained and altering the punishment awarded for the offence, each appellant is sentenced to the period already undergone. Appellants to deposit fine of Rs.1000/- each as imposed by the trial court within a period of 45 days. (C. M. TOTLA), J.