1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 291 of 2002 Decided on: September 26, 2011 State of H.P. …Appellant. VERSUS Ramesh Kumar & anr ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Adld. AG with Mr. Rajinder Dogra, Addl. AG. For the respondents: Mr. Naresh Thakur, Advocate. Dev Darshan Sud, Judge: The State has preferred this appeal against the judgment of the learned Additional Sessions Judge, Mandi, HP acquitting respondents herein for offences punishable under sections 394, 398 IPC and 27 of the Arms Act. 2. The facts necessary for the adjudication of this appeal are that complainant Surinder Thakur (PW-2), telephonically informed the Police Station, Jogindernagar that when he was returning from Badari temple on Whether the reporters of the local papers maybe allowed to see the judgment? 2 24.9.1999 at around 2 P.M and reached near Ghodan forest near Dhalu path, he was fired upon and injured by two ruffians who ran away towards Badari Mata temple. SHO Parkash Chand (PW-10) recorded rapat Ext PW-7/A and immediately proceeded towards Badari Mata temple for investigation. ASI Narinder Kumar (PW-9) took the victim to Civil hospital, Joginder Nagar and filed application Ext PW-1/A with the Medical Officer for the victim’s medical examination which was conducted by Dr. Sushil Chander (PW-1). A police party headed by SHO Parkash Chand (PW-10) made efforts to trace both the accused in and around Badari Mata temple, but they could not locate anyone in the said forest. Surinder Singh (PW-2), complainant remained under treatment in the hospital till 27.9.1999. His MLC PW-1/B revealed that he had seven multiple lacerated wounds on his right arm which were simple in nature and could be caused by a fire arm. Ext PW-1/A First Information Report was recorded by ASI Narinder Kumar (PW-9), wherein the victim had stated that he along with his fiancée Manjula Thakur, had gone to Badari Mata temple and after visiting the temple, when they were returning, they sat down on the way to rest for a 3 while. At around 1.30 PM, when they reached on the path situated near Ghodan forest, two persons suddenly appeared before them. One of them was having a beard and having short hair and another was clean shaved, who went behind them and the other person stood in front of both of them and commanded them to hand over whatever valuables they had with them. He threatened them that in case they did not do so, he had a country made pistol which he was carrying with him and which he would not hesitate to use. He states that the person with beard took out a pistol and aimed it towards him calling out “Jo Bhi Hai de do”. He replied “ Kya majak hai”. He turned and saw the other person was also armed with a pistol in his hand and was pointing it towards the complainant. 3. In order to frighten these people, the complainant told them that did they know who he was and in which department he was serving. One of the accused asked the other to shoot the complainant. At this, the complainant picked up a stone, caught hold of Manjula’s arm, started running to escape from the clutches of the accused persons. When he had covered some 4 distance and was about to negotiate a curve, Jai Pal, accused fired upon him, as a result, he sustained injuries. When he looked back, one person was reloading his pistol and on seeing this, both he and Manjula fled from the spot. 4. On 27.9.99 at about 10.20 PM, a message was received in the Police Station, Joginder Nagar from one Ranjeet Singh intimating that two boys along with some weapons have been apprehended by the villagers. This information was entered in the Rojnamcha and rapat No. 38 Ext PW-7/B was recorded. Parkash Chand SHO (PW-10) along with a police party rushed to village Dol Crasher. When they reached the spot, they found both the accused in the custody of the villagers in the house of one Kanti Ram (PW-4). They were arrested. A bag Ext P-6 was taken into possession by the police. On inspection, this bag was found to contain two country made. 315 bore pistol Ex P-2 and P-3 and also recovered three live cartridges of 315 bore, four live cartridges of 12 bore, one fired cartridge and one cap of fired cartridge of 315 bore Ext P-4 along with other articles. A knife Ex P-19 was also found in the bag. Ext P-3/B seizure memo was prepared. Application Ex PZ-5 was moved before the learned Addl. CJM for 5 conducting identification parade of both the accused. The weapons and ammunition were sent to Central Forensic Science Laboratory, Chandigarh . In his report, Ext PZ, the Chemical Examiner, CFSL, Chandigarh states that he had received three country made pistols, Four 12 bore cartridges, one . 315 misfired rifle cartridge, two country made cartridges, one 12 bore and one misfired cartridge. He found the seals on the parcels to be intact. On examination and comparison of the firing pin marks, he found that all the three weapons were in working order and the firing pin marks present on 12 bore misfired cartridge marked L/1 tallied with the test of ‘A’/1. He could not give any opinion about country made pistols Exts A-1 to A-3 with respect to fired cartridges for lack of sufficient individual characteristic marks. 5. The prosecution, in order to prove its case, examined 11 witnesses. We need not to go into details of the entire evidence except Dr. Sushil Chander and the statement of PW-2 Surinder Thakur, who has described the incident in detail. 6. The learned trial court holds that none of the accused was personally known to the complainant and he 6 was not acquainted with any one of them nor he had seen anyone prior to the incident. The evidence of PW-11, Sh. S.C. Kainthla, Senior Sub Judge-cum CM, Chamba, who conducted the identification parade has not been believed by the learned trial court. The learned trial court noticed that both the accused persons were arrested in the intervening night of 27/28th September, 1999 and remained in police lock up. The identification parade was conducted by the learned Addl. CJM, (PW-11) at Joginder Nagar on 29th September, 1999. 7. Adverting to the evidence of (PW-2) Surinder Thakur complainant, the learned trial court holds that the possibility that both the accused persons have been shown to PW-2, Surinder Thakur, complainant before identification parade, could not be ruled out. The court noticed that the complainant in his cross examination states that he was called to the police station on the next day of the arrest of the accused persons which means in the morning when both the accused were in custody of the police on 28th September, 1999, whereas the parade was arranged for 29.9.1999. 7 8. Turning to the evidence, Sh.S.C. Kainthla (PW-11), who conducted identification parade, the learned trial court holds that the accused persons were not asked to change their clothes nor any opportunity was given/granted to them to be placed amongst/in between other persons who were to be a part of the identification parade. The accused and the identifier i.e. Surinder Thakur (PW-2) were brought to the Court by (PW-10) Parkash Chand, SHO, who remained along with identifier outside the Court till Surinder Thakur, identifier (PW-2) was called inside the court room to identify the accused. The court holds that the parade was not held in a manner which could elicit the basic facts/truth and the proceedings could be described as fair and impartial. 9. Looking to the medical evidence, learned trial court holds the report of CFSL, Chandigarh Ex PZ, does not show that the country made pistols P-2, P-3 and knife Ext P1/A were infact used. The MLC Ex PW/1B also shows that the victim received minor injuries, but no pellet relatable to the weapon alleged to used was recovered or found in the injury sustained by the complainant. Dr. Sushil Chauhan (PW-1) details four injuries on the person of the 8 complainant and states that though three pellets were recovered, but could not state their size as he had not recorded it. 10. It is well established that identification parade is not a substantive piece of evidence but nonetheless corroborative of the sworn testimony of the witnesses and that its value depends upon the precautions taken to ensure the identifying witnesses does not have any opportunity to see the accused before the parade ( See : Hasib Vs. The State of Bihar, AIR 1972 SC 283; Sampat Tatyada Shinde Vs. State of Maharashtra, AIR 1974 SC 791 & Hari Nath & anr Vs. State of U.P., AIR 1988 SC 345). 11. In the totality of the facts and circumstances of the case, the court holds on the evidence on record that though the recovery of weapons, Arms and dagger was proved on record, yet the offence under sections 394 and 398 IPC were not made out as it was not shown/established on record that the weapons have actually been used by the accused for the purposes of commission of any offence. Even when we look for corroboration of the fact whether any weapon was used or not, we find that no buckshot in the form of pellets etc attributable or relatable 9 to the weapon alleged to be used was recovered from the wounds of complaint (PW-2) Surinder Thakur. The learned trial court convicted the accused for offence under section 27 of the Arms Act and sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- ech. The period spent in custody by the accused was directed to be set off against the sentence. 12. Learned Addl. Advocate General submits that the testimony of PW-2 Surinder Thakur, injured has been wrongly ignored by the learned trial court and has not been believed by the trial court for reasons untenable in law. The proposition that the injured is the best witness to the offence, cannot be disputed. However, it is the corroboration of his evidence by the other proved facts which is lacking more so in view of the fact that we find that the weapons having not been fired from which makes it highly doubtful as to whether PW-2 Surinder Thakur was actually fired upon by the accused. We also find the identification parade conducted in violation of the settled law on the point. Therefore, we find no merit in the appeal preferred by the State which is accordingly rejected. We hasten to add that the conviction of the accused under 10 Section 27 of the Arms Act is not proper. As prohibited arms contemplated by Section 27 read with Section 7 of the Act have not been proved to have been recovered from the accused. The proper course would have been to invoke Section 25 of the Act, but we do not wish to enter into this controversy any further. We find no merit in this appeal and hold that the learned trial court has rightly considered the facts on record. 13. There is no merit in this appeal which is accordingly dismissed. 14. Bail bonds, furnished are discharged. ( R.B.Misra ), J. 26th September, 2011 (Dev Darshan Sud ),J. (sl)