IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 325 of 1993 Reserved on : 16.04.2009 Date of decision: 21.04.2009 State of Himachal Pradesh .....Appellant Versus Amrik Singh ..… Respondent Coram : The Hon’ble Mr. Justice : Deepak Gupta, Judge. The Hon’ble Mr. Justice : V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Suneet Goel, Advocate. V.K. Ahuja , J.: This is an appeal filed by the State of Himachal Pradesh against the Judgment of the Court of learned Additional Sessions Judge, Solan, camp at Nalagarh dated 14.06.1993, vide which the respondent was acquitted of the charges framed against him under Sections 411 and 307 of 1Whether reporters of Local Papers may be allowed to see the judgment? 2 the Indian Penal Code and Sections 25 and 27 of the Indian Arms Act. 2. The prosecution story, in brief, is that on the intervening night of 1st and 2nd June, 1990 at around 11.30 P.M., PW-5 Sub Inspector Ashwathama, was posted as Incharge of Dherowal barrier. He was on duty at the said barrier when a creamed coloured car came from Nalagarh side at a fast speed. He signalled for stopping the car but the driver did not stop the car. Thereafter, he asked Constable Om Parkash to give signal for stopping that car but the car was not stopped and one of the occupants of the car occupying the seat by the side of the driver had fired two shots towards left side. He informed Constable Om Parkash to puncture the tyre of the car by firing a shot through his service rifle. The said Constable Om Parkash fired a short through his 303 Service Rifle but the bullet hit the car near dickey. Then the car with occupants fled away towards Punjab. Thereafter, a Police patrolling party came at the spot in a Gypsy near Village Manjhauli and S.I. Ashwathama, Incharge of the Police Check post told about the incident and they went towards side to which the car had gone and returned after 15-20 minutes alongwith Fiat Car which was brought by tow-chaining it with the Gypsy. A bullet hole was noticed in dickey. The Tin Can kept inside the dickey and 3 car had been brought from Ghanauli which was standing in front of one workshop with no number plate on it. On the rear seat, a handkerchief was found lying having blood stain marks. The occupants of the car were found missing. The Police Party headed by Dy. SP, SHO and others found one man sitting behind the shops of the mechanics, with a bleeding wound on his hip and on asking that man disclosed his name to be Banti alias John and informed the police that he alongwith the present accused and one Pradeep Kumar an absconding accused was travelling in the car, in question, and that car was being driven by the present accused Amrik Singh. The said Banti was brought to Rural Hospital Nalagarh where he died subsequently. On the basis of information given by said Banti, Pardeep Kumar was apprehended. During investigation of the case, the respondent made a disclosure statement leading to the recovery of two empty cartridges from near railway line. The absconding accused Pardeep Kumar had made disclosure statement leading to the recovery of a country made pistol and after obtaining the opinion of the Blastic Expert who opined that the empty cartridges had been fired through the country made pistol and on completion of the investigation and after obtaining sanction from the District Magistrate to prosecute the accused. The case was filed in the Court of learned SDJM Nalagarh, who 4 committed the case to the learned Sessions Judge who assigned the case to learned trial court for disposal, who tried the respondent leading to his acquittal. 3. We have heard the learned Deputy Advocate General Mr. Rajesh Mandhotra and learned counsel for the respondent and have also gone through the record of the case. 4. From appraisal of the evidence led by the prosecution, it is clear that there is no direct evidence to the occurrence since the car had proceeded in a fast speed and was not stopped at the spot and was subsequently recovered lying in front of a shop of a mechanic at a quite distance. The occupants of the car including the respondent who was allegedly driving the vehicle was also not apprehended near the said car. However, as per the assertion made by one person lying injured found at some distance from the car behind the shops, who subsequently died was allegedly one of the occupants in the alleged car that the respondent was driving at the relevant time. The respondent was arrested and on the basis of his disclosure statement two empty cartridges were recovered which were allegedly fired by a country made pistol and was allegedly recovered at the instance of the other co-accused. In regard to the question as to whether the accused was driving the car knowing it to be a 5 stolen one the statement of PW-25 the then SHO, Police Station Nalagarh is that he had received a telephonic message at 12.45 AM that one white coloured Fiat Car was going towards Ghanauli which did not stop on signal and two shots had been fired through it by some fire arm. He stated that H.C. Prem Chand and some other constables went to Ghanauli in search of the occupants of the car and recovered the same and brought it from Ghanauli. He himself went to Dherowal barrier and searched for the occupants of the car and found one person having bullet injury on his hip lying behind the shop of some mechanic. He further stated about the names of respondent, driver and another occupant and stated that the said person died around 3.55 P.M. He further stated that he earlier had given an application to Doctor who opined that he was unfit to make his statement. 5. The learned trial Court has disbelieved the statement of PW-24 Sub Inspector Khub Ram by holding that there is no corroboration to his testimony. He did not disclose in regard to alleged disclosure made by deceased Banti. The another ground taken was that the injured Banti cannot be said to be in a position to make any statement because the Doctor who attended to him at Rural Hospital, Nalagarh immediately after having brought him to the said Hospital, certified him to be unfit to make any statement. This fact is 6 proved from the testimony of the Medical Officer. The said opinion had been given by the Medical Officer on an application Ext. PN submitted by the Investigating Officer/SHO at 2.15 A.M. 6. The learned trial Court while referring to the deposition of PW-24 Sub Inspector Khub Ram had observed that it looks unbelievable that PW-24 has made his statement prior to this time when at 2.15 A.M. he was not in a position to make any statement. The car had crossed in between 11.30 A.M. to 11.45 A.M. and thereafter as per the testimony of PW-24 Sub Inspector Khub Ram, Dy. Inspector of Police and others left for Dherowal Police Post at 12.55 A.M. They had covered the distance of 10 kilometers and when they started from Ghanauli and came Dherowal Police barrier at 1.15 A.M. which may have taken atleast 15-20 minutes to reach Ghanauli, as observed by the learned trial Court. Thus, according to the conclusion drawn by the learned trial Court, the deceased was stopped at 1.50 to 1.55 A.M. and the deceased was not found in a position to give statement within 10 minutes. He cannot be said to have disclosed the names of the driver of the vehicle or any particulars regarding the occupants of the car which statement of PW-24 Sub Inspector Khub Ram was not relied upon by the learned trial Court. 7 7. The another ground that weighed with the learned trial Court in disbelieving the alleged disclosure statement was that the Investigating Officer PW-24 Sub Inspector Khub Ram had not prepared any record of the alleged statement made by the injured Banti. 8. Apart from the above, the learned trial Court has referred for the disclosure statement and the recoveries effected subsequently. The said disclosure statement has been proved in evidence as made by the respondent as Ext. PF from the statement of PW-24, Sub Inspector Khub Ram. Out of the two witnesses namely Jiwan Kumar and Hukam Chand, one Jiwan Kumar has been examined as PW-6. In his statement as PW-6, he stated that he does not know the designation of the police official who has recorded the statement, if he was a constable or a person of above rank. It was observed by the learned trial Court that he can be reasonably believed to be having the knowledge of the designation of Police Officer being a driver. His going to the police station for lodging a report in regard to missing of driving licence also does not look to be probable since he goes to lodge a report and comes back and again states that after 2 days the driving licence was recovered and therefore, he did not lodge any report. His statement was found unreliable as PW-23 ASI Amarjit Singh stated that his 8 statement has been recorded at 9.00 in the morning while this witness has stated that it was recorded in the noon. In view of material contradictions, his statement was not relied upon. Moreover, the occurrence had taken place on the night intervening 1st and 2nd June, 1990 and the recoveries were made on 3.2.1991 after more than 7 months and it looks improbable that these empty cartridge were kept hidden in the bushes by the respondent which can still be recovered after more than 7 months of occurrence. It can also be observed that it has come in evidence of prosecution that the report Ex. PL was sent to SHO, Police Station, Nalagarh by ASI Amarjit Singh on 02.06.1990 at 12.30 A.M., in which the allegations were made that the pistol had been found by a person sitting by the side of the driver, meaning thereby that the pistol was not fired by respondent, though, the recoveries are being made at the instance of the respondent. There is no other material evidence available on record as against the respondent and the learned trial Court had discussed whatever evidence was as against the respondent and had rightly disbelieved the prosecution story and had held that the recovery of the alleged cartridge only at the instance of respondent cannot be said to be sufficient to prove guilt of the respondent. No such evidence was pointed out during the 9 course of arguments which can lead to the guilt of the respondent. 9. In view of the above discussion, we have no reason to differ with the findings recorded by the learned trial Court holding that the prosecution had failed to prove its case beyond reasonable doubt. Thus, there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. Bail bonds furnished by the respondent are discharged. ( Deepak Gupta ) Judge ( V.K. Ahuja ) Judge April 21,2009 *BRB* 10 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 325 of 1993 Judgment for consideration please ( V.K. Ahuja ) Judge Hon’ble Mr. Justice Deepak Gupta, J: I agree/do not agree ( Deepak Gupta ) Judge Hon’ble Mr. Justice V.K. Ahuja, J. List for pronouncement of Judgment on April ,2009 ( V.K. Ahuja ) Judge Court Secretary