Crl.Appeal No. 1131-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1131-SB of 2001 Date of decision:6.1.2011 Gurcharan Singh and another ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mrs. Baljit Kaur Mann, Advocate, for the appellants. Mr.R.S.Sidhu, AAG, Punjab. ... JORA SINGH, J. Gurcharan Singh and Gursewak Singh filed this appeal to challenge the judgment of conviction and order of sentence dated 18.9.2001 by Additional Sessions Judge, Ferozepur, in Sessions Case No.8 of 28.9.1994/12.6.2001, arising out of FIR No.13 dated 17.1.1994 under Sections 307/34 IPC and 25 of the Arms Act, Police Station Mallanwala. By the said judgment, they were convicted under Section 307 IPC and directed to undergo RI for 10 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 30 days each. Prosecution story, in brief, is that on the intervening night of 16/17.1.1994, police party headed by SI/SHO Mal Singh was holding nakabandi near the Dhani of Village Ratto Ke in connection with the investigation of the case under Section 3 of the Official Secret Act, Section 135 of the Customs Act, Section 25 of the Arms Act and Section 18 of the NDPS Act. At about 2.00 AM, SSP, Ferozepur, along with escort party and other officials of Custom Department, reached at the spot. Balkar Singh, SP Crl.Appeal No. 1131-SB of 2001 2 (HQ) along with officials of Custom Department was deputed to hold nakabandi in the area of Village Muthianwali near river Sutlej. At about 4.30 AM, some unknown persons were seen while coming from the side of Pakistan Border. They were signalled to stop but instead of stopping, they started firing at the police party with an intention to kill them. Police officials also fired in self defence and cross firing continued for about 5 minutes. After that, accused had surrendered before the police party by raising their hands. On enquiry, one of them disclosed his name as Gurcharan Singh and the other as Gursewak Singh. On personal search of Gurcharan Singh, one .38 bore revolver was recovered from him. After unloading the said revolver, six empty cartridges were recovered. 125 gold biscuits, each weighing 10 tolas, were also recovered from one cotton belt tied around the waist of Gurcharan Singh. Separate proceedings were initiated by the custom officials regarding recovery of gold biscuits. Recovered gold biscuits were taken into police possession vide separate memo attested by the witnesses. Regarding recovery of arms and ammunition, separate proceedings were initiated by SI Gurdeep Singh. 85 Pakistani currency notes were also recovered from Gurcharan Singh. Same were taken into police possession vide separate memo. On personal search of Gursewak Singh, one .303 bore pistol along with three empty and one live cartridges were recovered. Regarding arms and ammunition, separate proceedings were initiated by ASI Hans Raj. 120 gold biscuits, each weighing 10 tolas, were recovered from the cloth bag tied around the waist of Gurcharan Singh. Gold biscuits were taken into police possession vide separate memo attested by the witnesses. Regarding recovery of gold biscuits, separate proceedings were initiated by Crl.Appeal No. 1131-SB of 2001 3 the custom officials. Indian currency notes of Rs.105/- along with driving licence were also recovered from Gursewak Singh. Currency notes and driving licence were taken into police possession vide separate memos attested by the witnesses. Ruqa recorded by SI Mal Singh was sent to the concerned police station, on the basis of which, formal FIR was recorded. Rough site plan with correct marginal notes was prepared. During investigation, Gurcharan Singh suffered disclosure statement and in pursuance thereof, got recovered Maruti Car No. DL-20-C- 1-5037 from the specified place. 15/16 empty cartridges were also recovered from the spot, which were taken into police possession vide separate memo. After completion of investigation, challan was presented in the Court. Accused were charged under Sections 307/34 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 3 witnesses. PW1 ASI Hans Raj is one of the eye witness/recovery witness. He was with the police party while holding nakabandi. He has supported the story by saying that when police party was holding nakabandi, then accused were seen while coming from the side of Pakistan Border and were signalled to stop. Instead of stopping, they started firing at the police party. Police party in self defence also fired and firing continued for about 5 minutes. After that, accused had surrendered before the police party. On personal search of Gurcharan Singh, one .38 bore revolver along with six empty cartridges was recovered. 125 gold biscuits, each weighing 10 tolas, along with Pakistani currency notes of Rs.85/- were also recovered from Crl.Appeal No. 1131-SB of 2001 4 him. Regarding recovery of gold biscuits and Pakistani currency notes, separate proceedings were initiated by the customs officials. In pursuance of disclosure statement, Gurcharan Singh got recovered Maruti Car No. DL- 20-C-1-5037 from the specified place. Maruti car along with driving licence was taken into police possession vide separate memo attested by the witnesses. On personal search of Gursewak Singh, one .303 bore pistol along with three empty and one live cartridges was recovered. Regarding arms and ammunition, separate proceedings were initiated by ASI Hans Raj. 120 gold biscuits, each weighing 10 tolas, were recovered from the cloth bag tied around the waist of Gurcharan Singh. Gold biscuits were taken into police possession vide separate memo attested by the witnesses. Regarding recovery of gold biscuits, separate proceedings were initiated by the custom officials. Indian currency notes of Rs.105/- along with driving licence were also recovered from Gursewak Singh. Currency notes and driving licence were taken into police possession vide separate memo attested by the witnesses. PW2 HC Amrik Singh has recorded formal FIR (Ex.P7) on receipt of ruqa. PW3 SI Mal Singh is the Investigating Officer. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Gurcharan Singh was that he was engaged with the daughter of Balkar Singh and sister of Balbir Singh but there was some dispute. After that, with the intervention of Gursewak Singh, he was engaged with his (Gursewak Singh) sister-in-law. He was implicated in this Crl.Appeal No. 1131-SB of 2001 5 case at the instance of Balkar Singh and Balbir Singh. Balkar Singh and Balbir Singh were doing illegal activities in connivance with the police. Defence version of Gursewak Singh was that he was brought from Amritsar 3/4 days prior to the alleged occurrence by the police of Ferozepur and later on, was falsely implicated in this case. After hearing learned PP for the State, learned counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellants argued that according to story, occurrence was on the intervening night of 16/17.1.1994 at about 4.30 AM. There was a cross firing but no one was injured in the incident. Appellants had no intention to murder the police officials. They seem to have fired to escape from the spot. Appellants are the first offenders. Gurcharan Singh has already undergone 1 year, 3 months and 17 days and Gursewak Singh has undergone 1 year, 8 months and 1 day. At the time of occurrence, Gurcharan Singh was 29 years' old, whereas Gursewak Singh was 32 years' old. Requested to take a lenient view. Learned State counsel argued that no doubt, occurrence was on the intervening night of 16/17.1.1994 at about 4.30 AM but the appellants fully armed came from the side of Pakistan. They were also carrying gold biscuits. When they were signalled to stop, then they started firing with an intention to eliminate the police officials. Before present occurrence, police officials had no enmity with the appellants. No defence that Gurcharan Singh was engaged with the sister-in-law of Gursewak Singh and earlier to Crl.Appeal No. 1131-SB of 2001 6 that, he was engaged with the daughter of Balkar Singh and sister of Balbir Singh. No evidence that Balkar Singh and Balbir Singh were carrying out illegal activities in connivance with the police. Undisputedly, occurrence was on the intervening night of 16/17.1.1994 at about 4.30 AM. Police party was holding nakabandi when apprehended the appellants. Gurcharan Singh was found in possession of one .38 bore revolver along with six empty cartridges. Gursewak Singh was found in possession of one .303 bore pistol along with three empty and one live cartridges. ASI Hans Raj and SI Mal Singh have supported the story. According to story, appellants were signalled to stop when they were noticed while coming from the side of Pakistan Border. Instead of stopping, they started firing at the police party. Appellants were armed with sophisticated weapons. Six empty cartridges were recovered from Gurcharan Singh and three empty cartridges from Gursewak Singh. If intention of the appellants was not to eliminate the police party, then there was no idea to fire. Appellants could easily surrender by raising their hands. In case, no one had injured in the occurrence, then nothing to presume that appellants had no intention to eliminate the police officials. 16/17 empty cartridges were also recovered from the spot showing this fact that police officials had also fired in self defence. Along with weapons, 125 gold biscuits, each weighing 10 tolas, along with Pakistani currency notes of Rs.85/-, were recovered from Gurcharan Singh and 120 gold biscuits, each weighing 10 tolas, along with Indian currency notes of Rs.105/-, were recovered from Gursewak Singh. When there was a cross firing and number of shots were fired by the appellants, then I am of the opinion that Crl.Appeal No. 1131-SB of 2001 7 appellants had the intention to kill the police party. Occurrence was on the intervening night of 16/17.1.1994 and at that time, Gurcharan Singh was 29 years' old, whereas Gursewak Singh was 32 years' old. Defence version of the appellants is that Gurcharan Singh was engaged with the daughter of Balkar Singh and sister of Balbir Singh but there was some dispute. After that, Gurcharan Singh was engaged with the sister-in-law of Gursewak Singh, but in support of this contention, no evidence either documentary or oral. Nothing on the file that Balkar Singh and Balbir Singh were doing illegal activities in connivance with the police. Appellants are from District Amritsar, whereas occurrence was in the area of District Ferozepur. No explanation why the appellants were arrested in the area of District Ferozepur in the early hours of January, 1994. If police officials had intention to implicate the appellants, then recovery of weapons with cartridges could easily be shown. There was no idea to plant 245 gold biscuits, each weighing 10 tolas, when police party had no previous enmity with the appellants. As discussed earlier, no injury case. Appellants are the first offenders. Gurcharan Singh has already undergone 1 year, 3 months and 17 days and Gursewak Singh has undergone 1 year, 8 months and 1 day out of actual sentence. Keeping in view the circumstances of this case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Appellants are directed to undergo imprisonment already undergone (1 year, 3 months and 17 days in case of Gurcharan Singh and 1 year, 8 months and 1 day in case of Gursewak Singh). Fine maintained. Crl.Appeal No. 1131-SB of 2001 8 For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. All the sentences awarded in FIR No.13 dated 17.1.1994 under Sections 307/34 IPC and 25 of the Arms Act, FIR No.14 dated 17.1.1994 under Section 25 of the Arms Act and FIR No.15 dated 17.1.1994 under Section 25 of the Arms Act, PS Mallanwala, are ordered to run concurrently. 6.1.2011 ( JORA SINGH ) pk JUDGE