Criminal Appeal No. 1993-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 1993-SB of 2002 Date of decision : November 07, 2011 Jagsir Singh alias Sira and others ....Petitioners versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kushaldeep S. Sandhu, Advocate for Mr. BS Kathuria, Advocate, for the appellants Mr. RS Rawat, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Jagsir Singh alias Sira, Kamaljit Singh alias Kamal, Jagdev Singh alias Devi, Avtar Singh alias Kala and Nahar Singh alias Nahr have filed the instant criminal appeal impugning their conviction and sentence recorded by learned Additional Sessions Judge, Barnala vide judgment dated 21.11.2002 and order dated 25.11.2002 thereby convicting all the five accused-appellants under section 402 IPC and also convicting appellants Jagsir Singh alias Sira, Jagdev Singh alias Devi and Avtar Singh Criminal Appeal No. 1993-SB of 2002 -2- alias Kala under section 25 of the Arms Act and sentencing each of the five appellants to undergo rigorous imprisonment for four years and to pay fine of Rs 500/- and in default thereof, to undergo further rigorous imprisonment for one month for offence under section 402 IPC and sentencing each of the three convicts Jagsir Singh, Jagdev Singh and Avtar Singh to undergo rigorous imprisonment for two years and to pay fine of Rs 300/- and in default thereof, to undergo further rigorous imprisonment for one month for offence under section 25 of the Arms Act but both their sentences have been ordered to run concurrently. All the five appellants stand acquitted of the offence under section 399 IPC. Prosecution case in brief may be stated as under:- FIR No. 9 dated 14.2.2001 under sections 399 and 402 IPC and section 25 of the Arms Act was got registered on the basis of secret information received by police party head by Inspector Surinder Pal Singh that all the five accused were present in forest area of Bihli Kharak Singh Wala and were making preparation for committing dacoity and three of them were armed with pistols and live cartridges. The aforesaid place was raided by forming four separate police parties. All the five accused were found present there talking with each other. Out of them, Kamaljit Singh and Nahar Singh were apprehended by police party headed by Inspector Surinder Pal Singh whereas the remaining three accused started running away, but each of them was apprehended by separate police parties. Accused Jagsir Singh was found in possession of a country made pistol Criminal Appeal No. 1993-SB of 2002 -3- 315 bore along with five live cartridges for which separate FIR No. 12 was got registered. Accused Jagdev Singh was found in possession of country made pistol of .12 bore with five live cartridges for which separate FIR No. 11 was got registered. Similarly accused Avtar Singh was found in possession of .12 bore country made pistol along with three live cartridges for which separate FIR No. 10 was got registered. The pistols and cartridges were sealed in separate parcels and were seized by the police. Accused Kamaljit Singh and Nahar Singh were not found in possession of any fire arm or other weapon. Investigation formalities were completed. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. On test by Head Constable Hari Bans, Head Armourer, the pistols were found to be in working condition and the cartridges as live ones. Sanctions for prosecution of Avtar Singh, Jagdev Singh and Jagsir Singh under section 25 of the Arms Act were also obtained. On completion of investigation, four separate reports under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) were presented i.e. one report for prosecution of all the five accused under sections 399 and 401 IPC and section 25 of the Arms Act and three reports separately for prosecution of each of the three accused Jagsir Singh, Avtar Singh and Jagdev Singh under section 25 of the Arms Act. Learned Additional Sessions Judge consolidated all the four cases and disposed of the same by impugned single judgment and order. Charge under sections 399 and 402 IPC against all the five Criminal Appeal No. 1993-SB of 2002 -4- accused and under section 25 of the Arms Act against Jagsir Singh, Avtar Singh and Jagdev Singh was framed. All the accused pleaded not guilty and claimed trial. The prosecution in support of its case examined 12 witnesses. Harbans Rai, Clerk, PW1 proved sanction orders for prosecution of accused Jagsir Singh, Avtar Singh and Jagdev Singh under section 25 of the Arms Act. ASI Gurbakhshish Singh, PW2, ASI Darshan Singh, PW3, ASI Randhir Singh, PW4, Head Constable Baljit Singh, PW5, ASI Hardev Singh, PW6, Head Constable Darshan Singh, PW8 and Inspector Surinder Pal Singh, PW12 broadly stated according to the prosecution version. ASI Gurbakhshish Singh, PW2 and HC Darshan Singh, PW8 stated about apprehension of accused Jagsir Singh and recovery of pistol and cartridges from him. ASI Darshan Singh, PW3 and ASI Randhir Singh, PW4 stated about apprehension of accused Avtar Singh and recovery of pistol and cartridges from him. ASI Hardev Singh, PW6 and HC Baljit Singh, PW5 stated about apprehension of accused Jagdev Singh and recovery of pistol and cartridges from him. Inspector Surinder Pal Singh stated about apprehension of accused Nahar Singh and Kamaljit Singh. HC Hari Bans, Head Armourer, PW7 stated that he tested the aforesaid pistols and cartridges and found the pistols to be in working condition and found the cartridges to be live ones. HC Nachhatar Singh, PW9, HC Gulzar Singh, PW10 and HC Criminal Appeal No. 1993-SB of 2002 -5- Gurpal Singh, PW11 tendered their affidavits in evidence being formal witnesses. The accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to have been falsely implicated in this case. Accused Jagsir, Jagdev Singh and Avtar Singh alleged that they had been detained for 14 days before being implicated in this case. Accused Kamaljit Singh and Nahar Singh alleged that they were picked up from their houses and were falsely implicated in this case. In defence, the accused examined five witnesses. MHC Balbir Singh, DW1 proved the entries in register no. 19 relating to deposit of case property and also proved reports of daily diary of the Police Station. Kaur Singh, DW2, Chamkaur Singh, DW3, Ajaib Singh, DW4 and Makhan Singh, DW5 broadly stated according to the defence version. Learned Additional Sessions Judge vide impugned judgment and order convicted and sentenced the appellants as already noticed hereinbefore. Feeling dissatisfied, the convicts have filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case files with their assistance. Counsel for the appellants vehemently contended that there is not even an iota of evidence on record to depict that the appellants had Criminal Appeal No. 1993-SB of 2002 -6- assembled at the place of occurrence for the purpose of committing dacoity and therefore, offence under section 402 IPC is not made out from the prosecution case. It was pointed out that there is also contradiction in the statements of prosecution witnesses inasmuch as ASI Darshan Singh, PW3 stated that the forest area was surrounded by barbed wire and they entered the area from one side whereas Inspector Surinder Pal Singh, PW12 stated that there was no barbed wire and they entered the forest area from all sides. Reference was also made to statements of defence witnesses to canvass for acquittal of the appellants. It was also submitted that pistols and cartridges were got tested on 24.3.2001 i.e. after delay of 38 days. On the other hand, learned State counsel contended that statements of prosecution witnesses are reliable and are sufficient to prove the guilt of the appellants beyond reasonable doubt. It was also contended that there is no reason why the police officials would implicate the appellants in false case and would depose falsely against them. I have carefully considered the rival contentions. There is considerable merit in the contention of counsel for the appellants that offence under section 402 IPC is not made out from the prosecution evidence taken at its face value. Prosecution witnesses have simply stated about apprehension of the five accused and recovery of a pistol each along with some live cartridges from three of the five appellants. However, there is not even an iota of evidence on record to infer that the appellants had assembled for the purpose of committing dacoity. No witness has stated Criminal Appeal No. 1993-SB of 2002 -7- about conversation of the appellants inter-se to depict that the purpose of their assembly at the spot was to commit dacoity. Main case bearing FIR No. 9 was registered under sections 399 and 401 IPC and section 25 of the Arms Act merely on the basis of secret information that the appellants had assembled and were making preparation to commit dacoity and three of them were armed with arms and ammunition. For obvious reasons, identity of the secret informer has not been disclosed nor the informer has been examined as witness by the prosecution. In this view of the matter, there is not even a shred of evidence to establish that the appellants had assembled for the purpose of committing dacoity. Consequently, offence under section 402 IPC is not made out from the prosecution evidence. Learned trial court observed that no plausible explanation was furnished by the accused regarding their assembly on the place of occurrence armed with arms and ammunition. However, if inference on the basis of this observation has to be drawn that the appellants had assembled for the purpose of committing dacoity, then similar inference could also be drawn that they were making preparation for committing dacoity within the purview of section 399 IPC. However, the trial court has acquitted the appellants of the offence under section 399 IPC but convicted them of the offence under section 402 IPC. No such distinction could, however, be drawn because the prosecution has neither led evidence to depict that the appellants were making preparation for committing dacoity constituting offence under section 399 IPC nor led evidence to depict that Criminal Appeal No. 1993-SB of 2002 -8- the appellants had assembled at the spot for the purpose of committing dacoity to constitute offence under section 402 IPC. It is correct that prosecution witnesses had no reason to implicate the appellants in a false case or to depose falsely against them. However, from the prosecution evidence, ingredients of offence under section 402 IPC are not proved because it is not established that the appellants had assembled at the spot for the purpose of committing dacoity which is the essential ingredient of the offence under section 402 IPC. Consequently, conviction of the appellants for the said offence is patently perverse and illegal and therefore, un- sustainable. As regards conviction of appellants Jagsir Singh, Jagdev Singh and Avtar Singh for offence under section 25 of the Arms Act, the said conviction is well founded. Prosecution witnesses have categorically deposed about recovery of a pistol along with some live cartridges from each of the said appellants. ASI Gurbakhshish Singh, PW2 and HC Darshan Singh, PW8 have stated about recovery of a pistol and five live cartridges from accused Jagsir Singh. Similarly ASI Darshan Singh, PW3 and ASI Randhir Singh, PW4 have stated about recovery of a pistol and three live cartridges from accused Avtar Singh. In the same manner, ASI Hardev Singh, PW6 and HC Baljit Singh, PW5 have stated about recovery of a pistol and five live cartridges from accused Jagdev Singh. Their statements could not be impeached in their cross-examination. They had no reason to depose falsely against the aforesaid accused. Even the said Criminal Appeal No. 1993-SB of 2002 -9- accused in their statements under section 313 Cr.P.C. have not alleged any ground for their false implication. Consequently, the defence version as stated by defence witnesses does not inspire confidence. Statements of the aforesaid prosecution witnesses, on the other hand, are credible and therefore, sufficient to prove guilt of these three appellants under section 25 of the Arms Act. Mere delay in getting the pistols and cartridges tested from the Head Armourer cannot be said to be fatal to the prosecution case in any manner. The said delay can have no adverse bearing on the prosecution case and did not cause any prejudice to the aforesaid appellants. On the other hand, sketches of the pistols had been prepared at the spot and the pistols and cartridges had been sealed into parcels. Consequently, the pistols could not have been tampered with or changed because identity of the pistols could be established by comparing it with the sketches. Thus, mere delay in getting the pistols and cartridges tested from Head Armourer is completely insignificant and immaterial. For the reasons aforesaid, I conclude that guilt of the five appellants under section 402 IPC is not proved. Accordingly, their conviction and sentence for the said offence is set aside and they are acquitted of the said offence. However, conviction of appellants Jagsir Singh, Jagdev Singh and Avtar Singh under section 25 of the Arms Act is well founded as their guilt for the said offence has been proved beyond reasonable doubt. Accordingly, their conviction for the said offence is Criminal Appeal No. 1993-SB of 2002 -10- affirmed. As regards quantum of sentence, the occurrence took place more than 10 years ago. The aforesaid appellants have faced the agony of trial including this appeal during this long period. Consequently, some reduction in sentence is warranted. In my considered opinion, ends of justice would be met if sentence of imprisonment awarded to these three appellants under section 25 of the Arms Act is reduced to rigorous imprisonment for one year each while maintaining the sentence of fine and the sentence of imprisonment in default thereof for the said offence as awarded by the trial court. It is ordered accordingly. Bail bonds of appellants Kamaljit Singh and Nahar Singh shall stand discharged as they stand acquitted in toto. However, remaining three appellants namely Jagsir Singh, Jagdev Singh and Avtar Singh who are on bail shall surrender to their bail bonds or shall be arrested to undergo the remaining sentence. The appeal stands disposed of accordingly. ( L.N. Mittal ) November 07, 2011 Judge 'dalbir'