IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 380 of 2001 Old No. 2813 of 1999 Shakil and others …Appellants Versus State of of U.P. (Now Uttarakhand) …Respondent Present: Mr. R.S. Sammal, learned counsel for the appellants. Mr. Amit Bhatt, learned A.G.A. for the State/respondent. Hon’ble Nirmal Yadav, J. Present appeal has been preferred by accused appellants against the judgment and order dated 17.11.1999 passed by IIIrd Additional Sessions Judge, Nainital in Sessions Trial No.139 of 1996 whereby the accused appellants were tried for the offences punishable under section 307 read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 1000/- each. In default of payment of fine, they have further been ordered to undergo rigorous imprisonment of one year. In Sessions Trial Nos. 140/96, 141/96 and 142/96 accused Shakil, Ajju and Mukhtiar respectively were convicted under section 25 of the Arms Act and were sentenced to undergo rigorous imprisonment for three years each. Both the sentences have been ordered to run concurrently. However, accused Shakil died during the pendency of appeal, hence appeal on behalf of accused appellant Shakil stands abated. Brief facts as per the prosecution case are that on 30.08.1993 S.S.I. K.P. Singh alongwith S.I. Gyan Singh, S.I. Pratap Singh (PW-1) and other police officials proceeded for 2 patrolling towards Ramnagar Road Cheema Chauraha on receiving a secret information with regard to the commission of some serious crime, in a police vehicle. On the way Head constable Karan Singh and Head Constable Chandrapal Singh were also joined in the police party. They tried to join some witnesses from the public also but none agreed to join on account of chaos and terror prevailing in the area. When police party reached Cheema Chauraha, they found four accused persons namely Shakil and Ajju carrying countrymade pistol in their hands while Mukhtiar and Hasin Ahamad (non-appellant) carrying knife in their hands. All of them were threatening shopkeepers and industrialists that they will have to pay monthly tax to those accused persons. In case, anybody offered resistance, they will face dire consequences. Saying so accused opened fire and created terror in the public. People started running and shouting for seeking help to save them. The doors of the houses were closed. Shopkeepers started closing their shops. The traffic on the Cheema chauraha was completely disrupted. Meanwhile, S.S.I. K.P. Singh challenged these miscreants and tried to apprehend them with the help of police force. However, accused persons opened fire on the police party with intention to kill them. However, police officials were able to save themselves. When police party tried to encircle the accused persons, they tried to escape in a Maruti car. However, accused was overpowered and apprehended by the police party alongwith their weapons. Before taking search of them, the police officials again tried to procure the public witnesses but due to terror, none agreed. Moreover, due to terror created by the accused persons no one was available at the site. On search, accused Shakil was found having a 12 bore countrymade pistol and one live cartridge. Accused appellant Ajju was found having a 315 bore countrymade pistol and two live cartridges, while accused 3 appellants Mukhtiar and Hasin Ahmad (non-appellant) were found having knife of prohibited length each with them. All the recovered articles were taken into possession and a Maruti Car bearing No.DNA 8835 white-coloured which was used by the accused for escape, was also taken into the possession vide recovery memo Ex.Ka-1 which was prepared on the spot. On enquiry, the accused persons could not show any licence and papers for the weapons as well as Maruti Car. The chick report was lodged at the police station, Kashipur and the case under section 307 read with 34 I.P.C. bearing case crime no.948/93 was registered against all the accused persons, while case crime no.949/93 to 952/93 were registered against all the four accused persons separately under section 25 of the Arms Act. G.D. Ex.ka-3 was entered and the site plan Ex.Ka-4 of the place of the occurrence was prepared. The sanction of the District Magistrate to prosecute all the four accused for the offences under section 25 of the Arms Act was obtained. On completion of the investigation, challan was presented against accused Shakil, Ajju, Mukhtiar and Hasin Ahmad for the offences under sections 307 read with 34 of the I.P.C. and section 25 of the Arms Act. Since the accused Hasin Ahmad had absconded, thus his case was separated, rest of the three accused persons Shakil, Ajju and Mukhtiar were charge sheeted under section 307 read with section 34 of the I.P.C. and under section 25 of the Arms Act. The prosecution in order to prove its case, examined S.I. Pratap Singh (PW-1), Head Constable Karan Singh (PW-2) and Constable Maurdhwaj Singh (PW-3). The accused persons when examined under section 313 Cr.P.C., denied all the incriminating evidence put to them by 4 prosecution and pleaded innocence and false implication. According to accused persons, they were apprehended from their houses. Heard Sri R.S. Sammal, learned counsel for the appellants and learned Sri Amit Bhatt, learned A.G.A. for the State/respondent and perused the material available on record. Learned counsel for the appellants submitted that the prosecution case is based on the testimony of the police officials only. Though police party was constituted on receiving a secret information, but no public witness was joined in the police party. The plea taken by the police officials that none agreed to join on account of terror is not substantiated by any cogent and reliable evidence. He further argued that police officials did not take any action against any of the public witnesses for not joining the police party, nor the names of such persons who refused to join the police party have been mentioned in police record. Learned counsel for the appellants further argued that admittedly no injury was caused to any member of the police party, though witnesses stated that accused appellants had fired towards police party. The next submission of the learned counsel for the appellants is that no empty cartridges were recovered from the place of occurrence to show that accused had fired from their respective weapons. Learned counsel for the appellants further pointed out that weapons allegedly recovered were neither sent to Forensic Science Laboratory nor the opinion of Ballistic Expert was obtained if the weapon allegedly recovered from the accused appellants, were in working condition. He further argued that alleged weapons were not even produced before the court. Thus, the prosecution has failed to prove that recovery of any weapon was 5 made from the accused persons. Learned counsel for appellants argued that in the absence of any independent witness, it creates serious doubt in the prosecution case. On the other hand, leaned A.G.A. argued contrary to the learned counsel for the appellants and submitted that there is noting on record to prove that any police officials were having enmity with the accused persons or they had any motive or reason to falsely implicate them. He further argued that police officials had made sincere efforts to join public witnesses with the police party but none agreed on account of prevailing circumstances due to terror created by the accused persons. Learned A.G.A. argued that testimonies of the three official witnesses produced by the prosecution are reliable and consistent. Therefore, trial court has not committed any illegality and perversity in convicting the accused persons. As per the prosecution, there were four accused persons who were creating terror in the public, out of them case of Hasin Ahamad was separately tried, while accused Shakil convicted by the trial court has expired. Now present appeal is only on behalf of accused appellants Ajju and Mukhtiar. The prosecution case is mainly based on the testimonies of PW1 S.I. Pratap Singh, PW2 Head Constable Karan Singh and PW3 Constable Maurdhawaj Singh. Both S.I. Pratap Singh (PW1) and Constable Maurdhawaj Singh have reiterated the prosecution case. However, it has been admitted by PW1 S.I. Pratap Singh that case property was not produced before the court. He did not specifically say in the cross examination as to how many shots were fired towards the police party. He also stated that no live cartridges in the countrymade pistol was recovered from the accused persons. The statement 6 of this witness is totally contradictory to the First Information Report submitted by Constable Karan Singh (PW-2) who has also been produced by the prosecution. According to him, one live cartridge from the barrel of the countrymade pistol was recovered from Ajju accused. In the F.I.R., it has been stated that accused fired from their countrymade pistols and when they tried to reload their pistols, they were apprehended, which shows that only one shot was fired by the accused persons through their countrymade pistols. But if one live cartridge has been found entrapped in the pistol and no empty cartridge has been recovered from the place of occurrence, amply proves that no shot was fired from the pistol of Ajju accused. The statement of PW1 S.I. Pratap Singh is contradicted by the statement of PW2 Constable Karan Singh who stated that accused persons had fired two shots towards them, whereas PW1 Pratap Singh stated that accused had fired several shots towards them. PW2 Constable Karan Singh admitted that no empty cartridge was recovered from the place of occurrence. He also admitted that countrymade pistols allegedly recovered were not sent to the Ballistic Expert. PW3 Constable Maurdhwaj’s statement in the cross examination has totally demolished the prosecution case. According to him, he could not specify as to who had fired towards the police party though all the police officials were together at that time. He also could not disclose as to from which accused the country made pistol and empty cartridges were recovered. From the evidence on record, it is apparent that no independent witness was joined in the police party. The testimonies of the police officials is not corroborated by any independent evidence. The accused persons have categorically stated that they were arrested from their houses and nothing was recovered from them. Admittedly, countrymade pistol 7 allegedly recovered from appellant Ajju and knife recovered from appellant accused Mukhtiar were not sent to the Forensic Science Laboratory nor the opinion of the any Ballistic Expert was obtained that countrymade pistol allegedly recovered from the appellant Ajju was in working condition and found fit for use. There is nothing on record to prove that empty cartridges recovered from the possession of the accused were live cartridges. Thus, the prosecution has failed to prove that appellants were found in possession of the alleged countrymade pistols which could be used in firing and the cartridges allegedly recovered from the accused appellant Ajju were live cartridges. The case property was not produced in the court and thus the prosecution has miserably failed to prove that any article was recovered from the accused appellants. Admittedly, none of the members of the police party received any injury in this incident and no empty cartridge from the place of occurrence was recovered. Thus, in the absence of any cogent and independent evidence, this Court is of the view that the conviction of the appellants under section 307 read with section 34 I.P.C. and under section 25 of the Arms Act can not be upheld. Accordingly, appeal is allowed. Both accused appellants are acquitted. The accused appellants are on bail, their bail bonds are cancelled and their sureties are discharged. As the appellants have not claimed the weapons allegedly recovered from their possession, the same will be disposed of after expiry of the period of appeal. (Nirmal Yadav, J.) JKJ 18.06.2010