Crl.A. No.729-SB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.729-SB of 1999 DATE OF DECISION: July 5, 2011 RAJIV KUMAR @ BABBI ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: NONE FOR THE APPELLANT. MR. V.P.S. SIDHU AAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. Accused Rajiv Kumar @ Babbi was convicted for the offence under Section 307 IPC and was sentenced to undergo R.I. For 5½ years and to pay a fine of `1000/- and in default to undergo a further period of 6 months. He was also convicted for the offence under Section 25 of the Arms Act and was sentenced to undergo R.I. for 2 years and to pay a fine of `500/- and in default to undergo a further period of 2 years R.I. Aggrieved by the aforesaid judgement of the trial Court the present appeal has been preferred by him. 2. It is the case of the prosecution that on 26.9.1994, at about 2.00 A.M. the accused was seen coming from the side of the village Jaula Khurd having wrapped a blanket on his person when PW1 Hari Chand ASI and PW7 Balwinder Pal S.I. alongwith other officials had engaged a naka near Jaula chowk. The accused started firing on the police personnel from his Crl.A. No.729-SB of 1999 -2- gun. PW7 Balwinder Pal S.I. directed the police party to fire in self-defence and catch hold of the accused alive. A Constable Amrik Singh fired one shot from his SLR and PW7 SI Balwinder Pal fired 2 shots from his service revolver. The accused then threw his weapon and surrendered before the police. PW7 inquired about the name and whereabouts of the accused. .12 bore SBBL gun was recovered by PW7. The accused also possessed four live cartridges of .12 bore. Two empty cartridges were also found strewn around the scene of occurrence. Those articles were also recovered by PW7 under relevant memos. A sum of `42/- found in possession of the accused also was recovered by PW7. PW7 sent ruqqa for registration of a case. He having examined the witness in this case laid final report as against the accused. 3. The trial Court having placed reliance upon the evidence of PW1 and PW7 returned a verdict of conviction as against the accused. 4. There was no one to represent the appellant before this Court. I heard the submission made by Sh.V.P.S. Sidhu, AAG, Punjab. It is his submission that PW1 Hari Chand ASI and PW7 Balwinder Pal SI have cogently spoken to the fact that the accused came armed with a gun and fired at the police party with an intention to kill the police personnel and surrendered after the police party, as per the instruction of PW7, opened fire. Therefore, he would submit that the prosecution has established through PW1 and PW7 that the accused made an attempt to commit the murder of the police personnel with the unlicenced weapon he possessed. 5. The entire evidence on record in the light of the submission made by the AAG, Punjab was thoroughly scanned by me. It is found that Crl.A. No.729-SB of 1999 -3- the evidence of PW1 Hari Chand ASI and PW7 Balwinder Pal S.I. are the most important testimonies available on record. To say the least, the prosecution has come out with a totally artificial and unbelievable story that the accused came down to the place where the picketing was there by the police personnel numbering about 8 and started opening fire from his unlicenced gun and nobody sustained injury in the occurrence. The police party also returned fire in order to apprehend the accused, but the accused did not sustain any injury. The vehicle parked over there also did not receive any pellet marks. 6. PW1 and PW7, the star witnesses in this case are found to be interested witnesses. No independent police officer has chosen to investigate the heinous crime of attempting to murder the police personnel by the accused. It was PW7 Balwinder Pal S.I. who headed the police party at the scene of picketing and ordered his subordinate police officials to open fire on the accused and sent ruqqa to register a case. Unfortunately, PW7 took up the investigation and filed challan also as against the accused. Such a practice embarked upon by PW7 is deprecated by this Court. PW7 being the complainant who did participate in the occurrence and ordered to open fire against the accused should not have taken up the case for investigation at all. In my considered opinion, great injustice has been committed in this case on account of the fact that the complainant who was an aggrieved party himself was the investigating officer. The Investigating Officer PW7 cannot, in normal circumstances, come to a different opinion from that of his interested version. The whole investigation has been done by him with a coloured glass he had worn. In all fairness, PW7 should have recused Crl.A. No.729-SB of 1999 -4- himself from the process of investigation. 7. Of course, the accused who took up the plea that he was virtually in the police custody at the time when the alleged occurrence took place did not choose to lead evidence. In a criminal trial, the prosecution shall establish its case beyond reasonable doubt. Of course, the defence set up by the accused will have to be proved to show that all was not well with the case projected by the prosecution. Inasmuch as, the prosecution has failed to establish its case beyond reasonable doubt and the artificial version projected by the prosecution leaves doubt in the mind of the Court, the non- examination of any witness on the side of the accused to establish his plea of alibi matters not. 8. I find that the prosecution has failed to establish the charges framed against the accused. The trial Court without properly evaluating the materials on record has wrongly convicted the accused. 9. In view of the above, the judgement of conviction and the order of sentence recorded by the trial Court is set aside and the accused-appellant is acquitted of all the charges levelled against him. Consequently, the appeal is allowed. The bails bond executed by the accused stands discharged. July 5, 2011 (M.JEYAPAUL) Gulati JUDGE