RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1729 OF 2001 (OLD NO.1020/1994) Gurmeet Singh & another .……….. Appellants Versus State of Uttarakhand ..…….. Respondent Dated: September 09, 2009 Mr. K.S. Bora, Advocate for the appellants Mr. Prabhakar Joshi, Brief Holder for the State. Hon’ble Dharam Veer, J. This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 6.7.1994 passed by IVth Additional Sessions Judge, Nainital in S.T. No.316/1989 State Vs. Gurmeet Singh & others, S.T. No.317/1989, State Vs. Kartar Singh and S.T. No.318/1989, State Vs. Gurmeet Singh, whereby the learned IVth Addl. Sessions Judge convicted the accused/appellants, namely, Gurmeet Singh and Kartar Singh u/s 147, 148, 307 r/w Sec.149 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and each of the accused/appellant were sentenced to six months’ R.I. u/s 147, one years’ R.I. u/s 148 and five years’ R.I. u/s 307 r/w Sec.149 IPC and a fine of Rs.500/-. In default of payment of fine, each of the accused/appellant were further sentenced to three months’ additional imprisonment. Accused/appellants Gurmeet Singh and Kartar Singh were further convicted u/s 25 of the Arms Act, 1959 (hereinafter to be referred as the Act) and were sentenced to one year’s R.I. each. All the sentences were 2 directed to run concurrently. However, the co-accused persons, namely, Mehanga Singh, Jageer Singh and Baldev Singh were acquitted of the charges levelled against them by the trial court. 2. I have heard Mr. K.S. Bora, Advocate for the accused/appellant as well as Mr. Prabhakar Joshi, Brief Holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that on 15.5.1987 Station Officer Kamal Singh accompanied by S.I. Sanjay Kumar Bhardwaj (PW3), S.I. Ramveer Singh and Constables Pramod Singh, Dheer Singh, Harendra Singh, Devraj Singh, Komal Singh, Devendra Singh, Chote Khan, to recover illegal weapons and in search of Jagdev Singh @ Jagga and Gurmeet Singh, reached in the house of Jagdev Singh at about 09:30 PM by Government Jeep No. URN 5953, driven by Const./Driver Ghananand Tiwari. In the light of Jeep, the police party saw Jagdev Singh, Baldev Singh, Kartar Singh, Gurmeet Singh, Mehanga Singh and Jageer Singh sitting in the courtyard of Jagdev Singh @ Jagga. As soon as the Police party stepped down from the Jeep, the accused/appellants along with the other accused persons fired on them with their weapons and started running in the North side towards the field. After chasing the accused persons, the police party caught hold the accused/appellants Kartar Singh and Gurmeet Singh at about 09:40 PM. Rest of the accused persons succeed in running away from the scene of occurrence. Search of the accused/appellants were being made. From the possession of accused/appellant Gurmeet Singh, one pistol of 303 Bore and two live cartridges of 303 Bore were recovered and from the possession of accused/appellant Kartar Singh, one 3 pistol of 12 bore, two live cartridges of 12 bore and one empty cartridge in the chamber of pistol were recovered for which the accused/appellants had no licence. In the said incident Sanjay Kumar Bhardwaj (PW1) received injuries of the pellets. The accused/appellants were arrested on the spot. Recovered pistols and cartridges were taken into possession and sealed on separate clothes and Namuna Mohor thereof was prepared. In the light of torch, Constable/Driver Ghananand prepared the FARD on the dictation of S.I. Kamal Singh (PW3) and the officials present there signed on the same. That FARD is Ext.Ka-1. PW1 Sanjay Bhardwaj was taken to Primary Health Centre, Sitarganj where PW2 Dr. K.P.S. Chauhan medically examined him at 09:45 PM and also prepared the injury report, which is Ext.Ka-2. On the basis of FARD Ext.Ka-1, PW3 S.O. Kamal Singh lodged the FIR at Police Station, Sitarganj on 15.5.1987 at 10:30 PM. Chik FIR of the case was prepared by Head Mohirror Sultan Singh, which is Ext.Ka-3. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector Gopal Singh Sindhu, who during the course of investigation recorded the statements of the witnesses, inspected the place of occurrence and thereafter prepared the site-plan, which is Ext.Ka-5. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellants Gurmeet Singh and Kartar Singh and the co-accused Jagdev Singh @ Jagga, Mehanga Singh and Jageer Singh (acquitted by the trial court) u/s 147/148/149/307 IPC, which is Ext.Ka-6. The I.O. also submitted the charge sheet against the co-accused Baldev Singh (acquitted by the trial court) u/s 147/148/149/307 IPC i.e. Ext.Ka-7. Against the accused/appellants Gurmeet Singh and Kartar Singh, charge sheets u/s 25 Arms Act, 1959 were also filed separately by the I.O., which are 4 Ext.Ka-8 and Ext.Ka-10, respectively. The then District Magistrate, Nainital accorded sanction to launch prosecution against the accused/appellants Gurmeet Singh and Kartar Singh vide order dated 4.8.1987. Sanction order for the prosecution of accused/appellant Gurmeet Singh is Ext.Ka-9 and that of Kartar Singh is Ext.Ka-11. 4. On receipt of the charge sheet, learned Chief Judicial Magistrate, Nainital, committed the case to the court of Sessions on 27.9.1989 after giving necessary copies to the accused/appellants and the co-accused as prescribed u/s 207 Cr.P.C. It appears from the record that the case was transferred to Additional Sessions Judge, Nainital for hearing and disposal according to law. 5. CJM, Nainital vide order dated 4.8.1989 abated the case against the co-accused Jagdev @ Jagga as he was reported to be died. 6. On 12.4.1990, learned IInd Addl. Sessions Judge, Nainital framed the charge of offence punishable u/s 147/148/149/307 IPC against the accused/appellants Gurmeet Singh and Kartar Singh and the other co-accused persons Mehanga Singh, Jageer Singh and Baldev Singh. The charge was read over and explained to each of the accused/appellants and the co-accused to which they pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution examined PW1 S.I. Sanjay Bhardwaj, injured eyewitness; PW2 Dr. K.P.S. Chauhan, Medical Officer, who medically examined PW1 S.I. Sanjay Bhardwaj and prepared the injury report Ext.Ka-2 and PW3 S.I. Kamal Singh. 5 8. Thereafter the statements of the accused/appellants and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused/appellants and the co-accused in question form, who denied the allegations made against them. In reply to question no.11, accused/appellants Gurmeet Singh and Kartar Singh both have stated that against the Sitarganj Police they had made a complaint before the DIG and due to this reason the Police have falsely implicated them in the said case. They did not produce any oral evidence in their defence, however, in documentary evidence, they have filed photocopy of the application given by the accused/appellants and the other persons to the DIG against the Sitarganj Police, which are Paper No.53Kha/1 to 53Kha/3. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned IVth Addl. Sessions Judge, Nainital vide his judgment and order dated 6.7.1994 convicted and sentenced the accused/appellants Gurmeet Singh and Kartar Singh as stated above. However, the co-accused persons, namely, Mehanga Singh, Jageer Singh and Baldev Singh were acquitted of the charges levelled against them by the trial court. Being aggrieved by the said judgment and order, the accused/appellants have preferred this appeal. 10. Before any further discussion, it would be pertinent to mention the injuries found on the person of S.I. Sri Sanjay Bhardwaj, who got medically examined by Dr. K.P.S. Chauhan (PW2) on 15.5.1987 at 10:45 PM and who also prepared the injury report Ext.Ka-2, which reads as under:- 6 (i) Small lacerated wound 0.2cm x 0.2m on dorsum of right thumb, having fresh oozing of blood, no sign of scorching, tattooing and blackening present. (ii) Small lacerated wound 0.2cm x 0.2cm on outer part of lower third of right forearm, having fresh oozing of blood, no sign of scorching, tattooing and blackening present. (iii) Small lacerated wound of 0.2 cm x 0.2 cm on right upper part of forehead having oval shape on palpation small hard object felt underneath the skin, object taken out it was the small round pellet size 0.1cm x 0.1 cm it was sealed in empty packet of match box, there is no sign of scorching, tattooing and blackening present. Small pellet was received to police in sealed match box. Inference:- Injury No.1, 2 and 3 all are caused by some fire arm object. Duration:- Fresh. 11. To prove the aforesaid injury report, the prosecution examined PW2 Dr. K.P.S. Chauhan, who has proved the injury report Ext.Ka-2. In the cross- examination, he stated that he could not state the distance by which the injuries were caused by fire arm and he also could not state by which fire arm the injuries were caused to the injured. He further stated that all the above-noted injuries were simple in nature. 12. To prove its case further, the prosecution examined PW1 Sanjay Bhardwaj, who has stated that on 15.5.1987 he was posted as Sub Inspector at P.S. Sitarganj. On that day, he along with the S.O. Kamal Singh (PW3) and other police personnel, in search of Jagdev Singh @ Jagga and Gurmeet Singh and for the recovery of weapons, 7 reached in the house of co-accused Jagdev Singh at about 09:30 PM by Govt. Jeep No.URN 4953 driven by Const./ Driver Ghananad Tiwari. In the light of jeep, the police party saw Jagdev Singh @ Jagga, Baldev Singh, Kartar Singh, Gurmeet Singh, Mehanga Singh and Jageer Singh sitting in cot in the courtyard of Jagdev Singh. As the police party came down from the jeep, the aforesaid accused persons fired on them and started running towards the fields in the north side. The police party chased the accused persons and at about 09:40 PM, they caught hold the accused/appellants Gurmeet Singh and Kartar Singh. On being search, one pistol of 303 Bore and two live cartridges of 303 Bore were recovered from the possession of the accused/appellant Gurmeet Singh. He identified the pistol Ext.1 and two cartridges Ext.2 and Ext.3. On the search of the accused/appellant Kartar Singh, one pistol of 12 Bore, an empty cartridge and two live cartridges of 12 Bore were recovered from his possession. He identified the said pistol Ext.4, empty cartridge Ext.5 and two live cartridges Ext.6 and Ext.7. The recovered articles were sealed on the spot in separate clothes and on the dictation of S.O. Kamal Singh (PW3), Const./Driver Ghananand Tiwari prepared the FARD (Ext.Ka-1) and on which he also made his sign. He further stated that in the said incident he received injuries of fire arm. He got medically examined at P.H.C., Sitarganj. He further deposed that the accused/appellants Gurmeet Singh and Kartar Singh are present in the court and all the accused persons were known to him by name prior to this incident. In the cross-examination, he stated that two accused persons, namely, Gurmeet Singh and Kartar Singh were arrested on the spot. After seeing the accused/appellants, he stated that the accused/appellant Gurmeet is not present in the court today. Accused Kartar Singh and co-accused Mehanga Singh are present in the 8 court. He further stated that three years have been passed of the said incident therefore he could not recognize the accused/appellants properly. He further stated that the Police party had seen the accused persons from a distance of 15 steps and from there the accused persons have fired 4 to 5 shots on them but the police party did not fire. 13. PW3 Sub Inspector Kamal Singh has corroborated the statements of PW1 Sanjay Bhardwaj. 14. Thereafter the statements of the accused/appellants and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused/appellants and the co-accused in question form, who denied the allegations made against them. In reply to question no.11, accused/appellants Gurmeet Singh and Kartar Singh both have stated that against the Sitarganj Police they had lodged a complaint before the DIG and due to this reason the Police have falsely implicated them in the said case. They have not produced any oral evidence in their defence, however, in documentary evidence, they have filed photocopy of the application given by the accused/appellants and the other persons to the DIG against the Sitarganj Police, which are Paper No.53Kha-1 to 53Kha-3. 15. Learned counsel for the accused/appellants submitted that the prosecution has failed to prove the case beyond reasonable doubt against the accused/appellants. I find substance in the submission of learned counsel for the accused/appellants, due to following reasons:- (i) That the raid was made in the house of the Jagdev @ Jagga on the prior information but no public witness was called by the police at the time of raid. Even the raid was made in the residential area 9 where houses of so many people were situated and public witnesses could be easily available, but by not making effort to collect public witnesses at the time of raid, creates reasonable doubt in the prosecution story. (ii) PW1 Sanjay Bhardwaj in his deposition had stated that all the accused persons were known to him before the said incident but he could not identify the accused/appellant Gurmeet Singh in the court below. He identified Gurmeet Singh as Mehanga Singh. Later on he stated that as three years time has been passed of the said incident therefore he could not identify the accused/appellants properly. This fact creates doubt about the presence of the accused/appellant Gurmeet Singh at the place of occurrence. (iii) As per the evidence of PW1 Sanjay Bhardwaj the police party had seen the accused persons from a distance of about 15 steps in the light of jeep and had identified all the accused persons by name. When the police party stepped down from the jeep then the accused/appellants and the co-accused fired on them, four to five shots were fired by the accused persons. It was also stated by him that in defence the police party had not fired. At about 09:30 PM in the night time and also in the light of jeep, identification of all the accused persons from a distance of about 15 steps does not seems to be reasonable. Apart from that, according to injury report (Ext.Ka-2), the injuries sustained to Sanjay Bhardwaj (PW1) were simple in nature but in such incident when the injuries were caused by means of fire arm, such simple injuries could not be possible. 10 This fact also creates doubt about the said incident and also on the statement of PW1 Sanjay Bhardwaj. (iv) As per the prosecution story, when the police party reached in the house of Jagdev Singh @ Jagga, they saw the accused/appellants and the co-accused persons sitting in the courtyard of Jagdev Singh. When the police party stepped down from the jeep, the accused/appellant fired on them. This fact also creates doubt in the prosecution story that when the light of jeep was falling directly on the accused/appellants and the co-accused then in that position it is not possible for the accused persons to identify the police party and to fire on them without any motive. (v) As per the statement of PW3 Kamal Singh, no pellet was recovered from the place of occurrence which also creates doubt about the place of occurrence and also on the manner of incident as narrated by the prosecution. (vi) That before the said incident, the accused/appellants along with other persons had lodged a complaint before the DIG, Kumaun Circle against the Sitarganj Police due to misconduct of the Police with the accused/appellants and the villagers of Sitarganj and also for the irregularities committed by the Sitarganj Police. On the said application, an enquiry was ordered against the police officials of Sitarganj and for this reason Sitarganj Police was having enmity with the accused/appellants. (vii) That in the FIR the Government Jeep by which the police party went at the place of incident was shown to be URN 5953, however, it has come in the statement of Sanjay Bhardwaj (PW1) that the police 11 party went to the house of Jagdev Singh by Govt. Jeep No.URN 4953. This fact also creates doubt in the prosecution story. (viii) That the weapons shown to be recovered from the possession of the accused/appellants were not sent for ballistic expert report and there is no evidence that the pistols recovered were in the working condition and that the cartridges which were found from the possession of the accused/appellants were the live cartridges. Reliance is placed on the judgment of “Jaspal Singh Vs. State of Punjab” reported in 1998 7 SCC 289. Para-2 of this judgment is reproduced hereunder:- “2. Admittedly, no evidence was led by the prosecution to prove that the gun was in working condition and that the cartridges which were found from the person of the appellant were live cartridges. Neither ASI Balbir Singh had stated so nor was any report from an expert obtained to establish that the gun was in working condition and that five cartridges were live. What was found in the gun were two empties and not live cartridges and, therefore, it was not proper to presume that it was in working condition. In the absence of any evidence to that effect, the conviction of the appellant under both these aforesaid sections cannot be upheld. We, therefore, allow this appeal, set aside the judgment and order passed by the Additional Judge, Designated Court, Sangrur, in Special Sessions Case No.55 of 1992 and acquit the appellant. He is ordered to be released forthwith if his presence is not 12 required in jail in connection with some other case.” 16. Learned counsel for the accused/appellants further argued that the co-accused persons Mehanga Singh, Jageer Singh and Baldev Singh have been acquitted by the trial court on the similar role and on the similar set of evidence and on this very ground the accused/appellants have been convicted by the trial court which is not sustainable in the eye of law. I found substance in the argument of the learned counsel for the appellants/accused that the co-accused persons Mehanga Singh, Jageer Singh and Baldev Singh have been acquitted by the trial court on the similar role and on the basis of same evidence. Thus, I am of the view that the appellant is also entitled for benefit of doubt and the benefit of acquittal should be extended to them also. I am fortified in my view with the verdict of Hon’ble Apex Court in the case of “Deepak Rajak Vs. State of West Bengal” reported in 2007 AIR SCW 5740. Paras-5 & 6 of this judgment are essential to mention here, which are reproduced hereunder:- “5. The position in law as to what happens in case of acquittal of similarly placed co- accused on the same set of facts and on similar accusations has been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the benefit of acquittal in the case of co-accused on similar accusations can be extended.” 13 17. Having given careful submissions made by learned counsel for the parties and in the light of the evidence and in the background of well-settled proposition of law and other circumstances, it is clear that the prosecution has not disclosed the true genesis of the occurrence and has thus not presented the true version. The prosecution has been failed to prove the case against the accused/appellants beyond reasonable doubt. As such, the trial court was in error in brushing aside serious infirmity in the prosecution case and the impugned judgment and order of the trial court, in view of the above narrated legal proposition, evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 18. For the reasons recorded above, the appeal is allowed. The judgment and order dated 6.7.1994 passed by IVth Additional Sessions Judge, Nainital in S.T. No.316/1989 State Vs. Gurmeet Singh & others, S.T. No.317/1989, State Vs. Kartar Singh and S.T. No.318/1989, State Vs. Gurmeet Singh, is hereby set aside and the conviction against the accused/appellants under Sections 147, 148, 307 r/w Sec.149 IPC and u/s 25 of the Arms Act, is quashed. Consequently, the sentence of six months’ R.I. u/s 147, one years’ R.I. u/s 148 and five years’ R.I. u/s 307 r/w Sec.149 IPC and a fine of Rs.500/- and also one year’s R.I. u/s 25 of the Arms Act, is also set aside. The accused/appellants are on bail. They need not surrender unless wanted in any other case. 19. Let the lower court record be sent back. (Dharam Veer, J.) 09.09.2009 RG