IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 171 of 2005. Date of decision: 4th April, 2011. ___________________________________________________ Sanjeev Kumar …. Appellant. Versus State of H.P. …. Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellant : Mr. Ramakant Sharma, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (Oral) Appellant hereinafter referred to as the “accused” was chargesheeted and tried for the offences punishable under Section 307 Indian Penal Code and Sections 25 and 27 of the Indian Arms Act. At the end of the trial, he was acquitted for attempted murder and also under Section 27 of the Indian Arms Act but convicted for the offence punishable under Section 25 Indian Arms Act 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - and sentenced by the learned trial Court to undergo an imprisonment for a period of one year and to pay a fine of `2000/-. Hence the present appeal by the accused. (i) In nutshell, prosecution case can be stated thus. On 7.3.2004, a truck bearing registration No. HP24- A-1367 was going to Hoshiarpur from Barmana. It was being driven by PW2 Mohinder Singh. Around 4 p.m., the said truck reached near Barsar, District Hamirpur (HP). It got stuck-up in a traffic jam. In the meantime, accused driving his Indica Car PB-02-AE-7090 came there and he blew the horn. Four ladies two children were its occupants besides the accused. It is alleged that PW2 Mohinder asked reason as to why accused was blowing the horn of his car so loudly and requested him to reverse his car back, so that, he could give him pass and put the truck in motion. After having obtained pass, accused overtook the truck and got down with his pistol in hand. Thereafter he opened the window of the driver side of the truck. Finding a five liters mobile cane, gave 2-3 blows with it to the complainant. Complainant asked the reason for his illegal act. Then accused fired - 3 - a shot from his pistol. Bullet hit the side of the shoulder of the complainant (PW2) and embedded in the roof of the cabin of the truck. (ii) PW2 Mohinder Singh aforesaid sustained bleeding bullet injury. His shirt Ext. PW2 and vest Ext. P3 got smeared with blood. He was saved by PW3 Manohar Lal, owner of the truck traveling with him. The accused fled- away in his car. Mohinder Singh aforesaid lodged a report in Police Station Barsar, which culminated into FIR Ext. PW2/A. He was got medically examined in Community Health Centre, Barsar from PW1 Dr. H.R. Kalia. (iii) Immediately after the recording of the FIR, police flashed message to the various police Stations to apprehend the accused. This message was also received and jotted down in the Police Station Una vide rapat Ext. PW5/A. Thereafter PW5 Head Constable Subhash Chand along with HC Ramesh Chand and constable Gurmail Singh went to ‘Lalbati Chowk’, Una and raised an obstruction on the road to check traffic. Around 5.15 p.m. Indica Car aforesaid came there from the side of Barsar. It was intercepted and detained. Accused was on the driving wheel. Besides the accused, there were four women and - 4 - two children. In the meantime, PW12 A.S.I. Rajesh Kumar, Incharge of Police Station Barsar also reached chasing the car. He conducted the search of the accused. On the personal search of the accused, pistol Ext. P6 was recovered loaded with three live cartridges and a spent cartridge. Twelve live cartridges were also recovered from one of his pockets. Police prepared the sketch map Ext. PW12/D of the pistol. Its photographs were also taken. Thereafter it was sealed with seal impression ‘H’. Empty as well as live cartridges were separately sealed with the same seal and were taken into possession vide memo Ext. PW3/B. On the search of the car, police also recovered a driving license Ext. P15 and pistol license Ext. PW8/B which were taken into possession vide memo Ext. PW3/C. (iv) Next day, i.e., on 8.3.2004 truck in question was also taken into possession vide memo Ext. PW3/D along with its documents. Thereafter a carpenter was arranged and ply-board of a portion of the cabin which bore the hole of the bullet (Ext. P19) was also taken out and sealed with seal impression ‘H’ and seized vide memo Ext. PW3/E and sent to the forensic examination. During the investigation of the case, besides taking into possession the wearing apparels of - 5 - the injured, police also took into possession jerrycan used by the accused to beat the complainant. 2. After recording statements of the witnesses, and completing investigation, the challan was presented in the court for the trial of the accused and on receipt of the report of the forensic science examination, supplementary challan was filed. 3. Accused was put on trial for the offences aforesaid to which he denied. 4. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He had taken the stand that when he crossed ‘Pandoga barrier’ in the territory of Himachal Pradesh, on police ‘Naka’ he was demanded documents of his vehicle which were handed over to them, but the bag containing the documents also contained the pistol licence. On enquiry he informed police that it belonged to him. Consequently, police brought the pistol from his house. Since the gun licence pertained to the ‘Punjab State only’ whereas he was shown in possession of pistol in the area of H.P. for which the license was not valid. 5. During the investigation, police also verified about the authenticity of the license from the office of - 6 - District Magistrate, Amritsar, the issuing authority and recorded the statement of PW8 Vikas Sharma, Clerk of the Office of District Magistrate. According to him, licence in question was issued by their office only for ‘Punjab State’ with respect to one 12 bore DBBL gun and .32 bore pistol in favour of the accused. He also placed on record photocopy of the licence Ext. PW8/A. Since the weapon in question was recovered from the accused within the territory of District Hamirpur (H.P) as such police obtained prosecution sanction Ext.PW9/A from PW9 Divesh Kumar, District Magistrate. 6. Significantly, during the trial, injured complainant Mohinder Singh as well as truck owner Manohar Lal both did not support the case of the prosecution at all for attempted murder as also the recovery of pistol as such accused was acquitted for the offences as stated above but the defence of the accused was disbelieved by the learned trial Court that the pistol was brought by the police from his house Amritsar and it was not found in his possession, as such he was convicted and sentenced under Section 25 of the Indian Arms Act as aforesaid. 7. Shri Ramakant Sharma, learned counsel for the accused vehemently argued that when the learned trial - 7 - Court has disbelieved the other part of the story, i.e., for attempted murder and under Section 27 of the Arms Act, on the same set of evidence recovery witness was also to be disbelieved for the offence for which he was convicted. He further ventilated that recovery witnesses did not support the prosecution case and the statement of the Investigating Officer is not worth inspiring confidence therefore, cannot be acted upon. 8. Contra Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and forcefully argued that though the injured as well as truck owner Manohar Lal turned hostile to the prosecution for obvious reasons even with respect to the recovery of the pistol but statement of Investigating Officer could not be shattered qua recovery as alleged, therefore, there is no force in appeal. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully re- appraised the evidence on record. 10. Although, PW3 the eye witness and Manohar Lal the recovery witness did not support the case of the prosecution, but his testimony cannot be thrown over-board straight-away, more particularly when he has admitted his - 8 - signatures on the recovery memos Ext. PW3/B and Ext. PW3/C with respect to the pistol and live cartridges. He did not say any where that his signatures were obtained at a later date. The perusal of these documents shows that these were executed on 7.3.2004 at ‘Lalbati Chowk’, Una on the day of alleged incident. So the fact remains that on 7.3.2004 Manohar Lal aforesaid was with the police when accused was apprehended along with car at ‘Lalbati Chowk’, Una. Further there is nothing to disbelieve the Investigating Officer who support the case with respect to recovery of pistol and live cartridges. He categorically stated that on the search of the person of the accused, he was found in possession of .32 bore pistol Ext. P6 which has a fired round in its magazine with three live cartridges. On further search, 12 live cartridges were also found in his pocket and these articles were taken into possession vide aforesaid memos in the presence of Manohar Lal to which he had signed with which he was confronted. The Investigating Officer further testified that on the search of the car, driving license and gun licence were found on the dash board of the car which were taken into possession vide memo Ext. PW8/B and this license was issued from the - 9 - office of District Magistrate, Amritsar, which is proved by PW8 Vikas Sharma and was valid for ‘Punjab State’ only. 11. As already stated above the recovery of the said pistol was made in the territory of H.P. State for which the license was not valid. 12. Section 25 (1-B) (a) of the Indian Arms Act provides that if a person is found in possession of any firearm or ammunition in contravention of Section 4 or transporting in contravention of Section 12 any such arms or ammunition in contravention of Section 3, or transporting in contravention of Section 12 any such arms or ammunition, would be guilty of the offence punishable under Section 25 of the Arms Act. Whereas Section 3-(1) of the Act provides that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder. 13. At the cost of repetition it proved on record that accused was having a pistol, license of which was not valid for the State of H.P. The recovery of pistol Ext. P6 stands proved from the accused at ‘Lalbati Chowk’, Una (H.P). The statement of the Investigating Officer making recovery on this score is found to be truthful and free from any - 10 - embellishment. The stand taken that the pistol was brought from the house of accused from Amritsar is not probablised. As such I do not find any fault in the conviction recorded by the learned trial Court for the offence aforesaid. 14. In so far as the sentence is concerned, the minimum sentence under the Act is one year and the Court is also empowered to impose the lesser sentence, if special reasons exist. 15. According to Shri Ramakant Sharma, accused was aged about 33 years at the time of the alleged incident, which took place about 7 years ago. He also remained in custody w.e.f. 7.4.2004 till 30.7.2004, i.e., nearly for about 5 months. He also suffered the torture of trial and uncertainty in appeal for about 6 years. It is also argued that the appellant is a repentant soul and has settled down in his life, his association with hardened criminals would further shake his psyche. Therefore a lenient view may be taken. 16. I have considered the above submissions. This is a case of road-rage and cannot be too lightly dealt with. The record reveals that from the date of the alleged incident till 30.7.2004 accused remained in judicial custody. Once his bail was rejected by the Court of Sessions and then by the - 11 - High Court but subsequently succeeded in getting bail on 30.7.2004 from the High Court. Thereafter he had been facing trial. There is no allegation that he misused his liberty or that he has any criminal record. It is also evident from the charge that on the day of the alleged incident, he was aged about 32/33 years. Taking over all view of the entire facts and circumstances of this case, in my opinion, the interest of justice would be met if the substantive sentence is reduced to already undergone without disturbing the fine in view of the judgment rendered by the apex court in Surjit Singh versus State of Punjab 1995 Cri. L.J. 3636. Thus, ordered accordingly. 17. Fine, if not deposited, be deposited within three weeks. 18. While maintaining the conviction of the appellant under Section 25 of the Indian Arms Act, subject to the above modification in the sentence, the appeal is partly allowed and stands disposed of. April 4, 2011 (Surinder Singh), (cm) Judge