Crl.Appeal No.883-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.883-SB of 1998 Date of Decision:08.03.2010 Udham Singh .....Appellant Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. Argued by: Mr.A.K.Khunger, Advocate, for the appellant. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent-State. **** MEHINDER SINGH SULLAR, J. The matrix of the facts culminating in the commencement and relevant for disposal of the instant appeal filed by appellant-Udham Singh- convict (hereinafter to be referred as “the appellant”) is that a separate criminal case was registered against him and his other four co-accused vide FIR No.66 dated 22.11.1996, on accusation of having committed the offence punishable under Sections 399, 148 and 149 IPC by the police of Police Station Gidderbaha, District Faridkot. The case of the prosecution further proceeds that on 22.11.1996, a police party headed by PW1-SI Shavinder Singh, consisted of PW2-Head Constable Mukhtiar Singh and other police officials was present near the bridge Kassi, Main Road, Gidderbaha-Bathinda, in connection with the investigation and to arrest all the five accused in the main case. During the course of investigation of the main case, police party apprehended all the five accused. PW1 was stated to have apprehended appellant-Udham Singh and his companion Puran Singh, Crl.Appeal No.883-SB of 1998 2 while the other police officials apprehended other accused. It was claimed by the prosecution that in the wake of search, .12 bore pistol(Ex.P1) along with four cartridges(Exs.P2 to P5) were recovered from the right dub of trouser(pajama) of the appellant and taken into possession vide recovery memo(Ex.PB). The sketch of pistol(Ex.PA) was prepared. The recovery memo and the sketch were attested by PW2 and Constable Gurdip Singh. The appellant did not produce any licence for keeping the weapon and the cartridges in his possession. 2. Levelling a variety of allegations in all, according to the prosecution that on 22.11.1996, in pursuance of the personal search, .12 bore pistol(Ex.P1) and cartridges(Ex.P2 to P5) were recovered from the possession of the appellant without any licence or permit, thereby contravening the provisions of the Arms Act. On the basis of aforesaid recovery, the present case was registered against the appellant vide FIR No.67 dated 22.11.1996, on accusation of having committed the offence punishable under Section 25 of the Arms Act(for brevity “the Act”) by the police of Police Station, Gidderbaha, District Faridkot, in the manner indicated here-in-above. 3. After completion of the investigation, final police report/challan was submitted against the appellant to face trial for the aforesaid offence. 4. As the main case registered against the appellant and others vide FIR No.66 dated 22.11.1996 under Sections 399, 148 and 149 IPC, was committed for trial to the Court of Sessions, therefore, the present connected case was also committed to it by the Sub-Divisional Judicial Magistrate, Gidderbaha, vide his commitment order dated 29.03.1997. 5. Having completed all the codal formalities, the appellant was charge-sheeted for the commission of offence punishable under Section 25 of the Act vide order dated 16.05.1997. Since, the appellant did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 6. The prosecution in order to substantiate the charge framed against the appellant examined PW1-SI Shavinder Singh, main recovery witness and the Investigating Officer, who has stated in the following terms:- Crl.Appeal No.883-SB of 1998 3 “On 22.11.1996, I was posted as S.H.O., P.S.Gidderbaha. On that day I along with HC Mukhtiar Singh, LC Gurdip Singh, ASI Baldev Singh, HC Bagga Singh etc. was present in Bharu Chowk, Gidderbaha in connection with the investigation of case FIR No.66 dated 22.11.1996 under Sections 399/148/149 IPC against the accused and during the investigation of that case, I arrested Udham Singh accused and from his possession, I recovered .12 bore pistol along with four cartridges. Sketch of the pistol Ex.PA was prepared and thereafter, the pistol Ex.P1 along with four cartridges Ex.P2 to Ex.P5 were taken into possession vide memo Ex.PB. Exhibit PA and Ex.PB were attested by HC Mukhtiar Singh and Constable Gurdip Singh. The accused had no licence for keeping the pistol and the cartridges. On supplementary search of the accused, Rs.40/- were recovered and taken into possession vide memo Ex.PC signed by the accused and attested by the above said witnesses. I also took into possession scooter No.PB-60-0252 vide memo Ex.PD attested by HC Mukhtiar Singh and Constable Gurdip Singh. The pistol and the cartridges recovered from the accused were in working order. I sent ruqa Ex.PE to the police station through Constable Bishamberdass on the basis of which formal FIR Ex.PE/1 was recorded by MHC Karaj Singh whose signatures, I identify. I prepared rough site plan Ex.PF with correct marginal notes. I recorded the statements of the witnesses. The accused was arrested and on return to the police station, I deposited the case property with MHC Karaj Singh. After the completion of investigation and on receipt of sanction from the District Magistrate, Muktsar, Ex.PH (objected to) the accused was challaned by me”. 7. Sequelly, PW2-Head Constable Mukhtiar Singh maintained that on 22.11.1996, a police party was present in Bharu Chowk in Crl.Appeal No.883-SB of 1998 4 connection with the investigation of the case FIR No.66 dated 22.11.1996 under Section 399 IPC etc. and during the course of investigation of that case, .12 bore pistol(Ex.P1) along four cartridges(Exs.P2 to P5) were recovered from the appellant and taken into possession vide recovery memo (Ex.PB) in his presence by PW1, for which the appellant had no licence. The sketch of pistol(Ex.PA) was prepared. The recovery memo and the sketch were attested by him and Constable Gurdip Singh. The scooter of the appellant was also taken into possession vide recovery memo(Ex.PD). According to PW2, from personal search of the appellant, Rs.40/- were recovered vide recovery memo(Ex.PC). 8. Likewise, PW3-HC Bagga Singh produced the pistol before Armour Police Lines, Faridkot on 12.12.1996. After examining the pistol, he gave his test report and returned the same to him, which he has handed over to MHC. 9. PW4-Om Parkash, Ahlmad, proved the sanction order(Ex.PH) to prosecute and identified the signatures of District Magistrate on it. 10. PW5-Constable Gurnam Singh identified the signatures of Swarn Singh(since deceased) as Head Armour, Police Lines, Faridkot, on his report(Ex.PJ). 11. After the close of the evidence of the prosecution, statement of the appellant was recorded as contemplated under Section 313 Cr.P.C. He denied the evidence of the prosecution in its entirety and pleaded false implication. However, he set up the following defence plea:- “I am innocent. I was falsely implicated in this case due to party faction. I along with Puran Singh, Binder Singh and Ranjit Singh of Kotbhai and Pinder Singh of village Rauran Wali have been falsely implicated by DSP Kashmir Singh at the instance of Balkar Singh and Raghbir Singh of Gidderbaha. We were arrested on 17.11.1996 when we were coming from the office of Shri Ashok Dhir, Advocate, in Dhir Market Gidderbaha in the presence of Surjit Singh and Falel Singh. All of us at that time were empty handed and nothing was recovered at the time of arrest. Puran Singh and Binder Singh were called from my fields. I was illegally detained for Crl.Appeal No.883-SB of 1998 5 two/three days by the police. My scooter and other valuable articles were taken by the police. Our parents met with DSP Kashmir Singh along with Ashok Dhir, Advocate, and Manpreet Singh M.L.A. of Gidderbaha and they also sent telegram”. 12. The appellant in order to substantiate his defence examined DW1-Dhanna Singh, who prepared site plan of the place of recovery and stated that there was neither any bush nor any grove (jhund of trees) around the point 'E' depicted in the site plan(Ex.D3). He has proved his covering letter(Ex.D1) and report(Ex.D2). 13. According to DW2-Surjit Singh and DW4-Falel Singh, on 17.11.1996, they were present in the office of Ashok Dhir, Advocate, along with Falel Singh. Appellant-Udham Singh and his co-accused-Ranjit Singh came there and enquired about Mr.Ashok Dhir, Advocate, who was not available in the office at that time. As soon as, they came out of the office of the Advocate, a police gypsy came there in which DSP Kashmir Singh and other police officials were present. The police intercepted Udham Singh and Ranjit Singh and took them to the police station in the said gypsy. On enquiry, they told that they were being taken to the police station for investigation. Nothing was recovered from them but after five/six days, they came to know that the accused were falsely implicated in a false case by the police. 14. DW3-Kartar Singh, Ex-Sarpanch of the village deposed that on 17.11.1996, father of Ranjit Singh came to him and told that his son, who had gone to Gidderbaha Mandi, was arrested and detained by the police. They went to the police station and on enquiry, the police told that Ranjit Singh was brought by DSP Kashmir Singh. Then they enquired, and DSP Kashmir Singh told that Ranjit Singh would be left off after two/three days after interrogation. Appellant-Udham Singh was also detained with Ranjit Singh on that day. They approached the higher officers a number of times, but later on the accused were falsely implicated in this case. 15. DW5-Gurdip Singh, father of accused Ranjit Singh also toed and adopted the same lines of defence as projected by DW4. 16. DW6 Labh Singh stated that on 18.11.1996, the police came to their village and took accused Binder Singh, Puran Singh and Udham Singh Crl.Appeal No.883-SB of 1998 6 from the fields of appellant-Udham Singh and later on they were falsely implicated in this case. 17. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced the appellant to undergo rigorous imprisonment for a period of nine months, to pay a fine of Rs.200/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of fifteen days vide impugned judgment of conviction and order of sentence dated 09.10.1998. 18. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 19. Assailing the impugned judgment, at the very outset, learned counsel for the appellant has contended with some amount of vehemence that since the appellant and his co-accused have already been acquitted in the main case under Sections 399, 148 and 149 IPC, so, he deserves the acquittal on the same set of evidence as well. The argument is that though it was a case of secret information, but the police did not join any independent witness at the time of alleged recovery and it would not be safe to convict the appellant on the statements of police officials, PW1 and PW2. Raising a variety of arguments in all, according to the learned counsel that as the evidence brought on record by the prosecution against the appellant is discrepant and untrustworthy, therefore, he is entitled to acquittal in this respect. 20. Hailing the impugned judgment, on the contrary, learned State Counsel has fairly acknowledged that although the appellant has already been acquitted in the main case under Section 399 IPC etc., but still as there is sufficient evidence on record in the shape of PW1 and PW2 with regard to recovery of pistol from the appellant, therefore, no interference is warranted in this connection. 21. Having heard the learned counsel for the parties and having gone through the evidence on record with their valuable help and after considering the matter deeply, to my mind, the impugned judgment of conviction cannot legally be sustained. Therefore, the appeal deserves to be accepted for the reasons mentioned here-in-below. 22. As is evident from the record, the prosecution claimed that Crl.Appeal No.883-SB of 1998 7 during the course of investigation of the main case registered against the appellant and his other co-accused vide FIR No.67 dated 22.11.1996 under Sections 399, 148 and 149 IPC, appellant was arrested by PW1. In pursuance of search, .12 bore pistol along with cartridges was recovered from his possession and the present separate case was registered against him. In the main case, the prosecution examined Head Constable Mukhtiar Singh(PW2) and SI Shavinder Singh(PW1) as PW3 and PW4 respectively. It means, the same set of witnesses as in the present case were also examined by the prosecution in the main case. 23. It is not a matter of dispute that having discarded the evidence of same set of witnesses and disbelieving the prosecution story, all the accused including appellant-Udham Singh have already been acquitted by the learned Additional Sessions Judge, in Sessions Case No.30 dated 19.04.1997 vide judgment of acquittal dated 09.10.1998, which had already attained the finality. Therefore, to me, the appellant cannot be convicted in the present case based on the same set of evidence. 24. An identical question arose for consideration before the Hon'ble Apex Court in case Manipur Administration, Manipur Versus Thokchom Bira Singh, AIR 1965 Supreme Court 87. Having interpreted the provisions of Section 403 Cr.P.C.(new Section 300), it was ruled as under:- “The rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of S.403(2). The rule is not the same as the plea of double jeopardy or autrefois acquit. The rule does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It Crl.Appeal No.883-SB of 1998 8 also does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. The rule thus relates only to the admissibility of evidence, which is designed to upset a finding of fact recorded by a competent court at a previous trial. Further, S.403, Cr.P.C. does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority find there being a decision of Supreme Court which has accepted it as a proper one to be adopted, there is no reason for discarding it”. 25. Sequelly, in case Lalta and others Versus The State of U.P., AIR 1970 Supreme Court 1381, the Hon'ble Apex Court has held that where an issue of fact has been tried by a competent Court on a former occasion and a finding of fact has been reached in favour of accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) Cr.P.C. 26. Likewise, Hon'ble the Apex Court in case Pritam Singh and another Versus The State of Punjab, AIR 1956 Supreme Court 415, has observed that the effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. 27. Similarly, this Court in case Mehar Singh Versus The State of Punjab, AIR 1971 Punjab and Haryana 175, following the dictum of Hon'ble the Apex Court in Lalta's case(supra), has held that under such circumstances, the accused cannot be convicted subsequently. The law laid Crl.Appeal No.883-SB of 1998 9 down in the aforesaid judgments mutatis-mutandis is applicable to the facts of the present case. 28. Therefore, once the same set of evidence has already been disbelieved in the main case pertaining and relatable to the same incident/occurrence, then to me, it would not be prudent and safe to base the conviction of the appellant on the same set of evidence on the principles of estoppel and non-admissibility of evidence. The aforesaid judgments are the complete answer to the problem in hand. 29. There is another aspect of the matter which can be viewed from a different angle. According to the prosecution, the police party received a secret information and was present near the bridge Kassi, Main Road, Gidderbaha-Bathinda, which is a busy road. A number of persons were available. PW1 admitted that even the place of recovery is a thoroughfare. It is also so depicted in rough site plan(Ex.PF). So, there is ample evidence and material on record to show that independent witnesses were available but were not joined by the police at the time of recovery, for the reasons best known to it. This ground was specifically raised and even the trial court has noticed that in this case, no sincere attempt was made by the Investigating Officer to join independent witness but it ignored the same without assigning any cogent reasons. 30. Proceeding on these premises, the argument of learned counsel for the appellant that non-joining of independent witness, though available, casts a shadow of doubt on the veracity of the case of the prosecution, has considerable force. As indicated earlier, the policy party did not join the independent witness though available at the time of recovery. A routine explanation in this context put-forward by PW1 in his cross-examination that he had tried to join independent persons but nobody was willing to join, cannot possibly be accepted, particularly when PW1 admitted that he cannot tell the name and address of the person whom he asked to join as a witness. Not only that the statement of PW1 is contradictory to the statement of PW2 where in cross-examination, he admitted that no independent person was available at the spot, no person was sent to call for the independent person. Although, the place of recovery is an open place and the road is frequented one. Therefore, no cogent explanation is forthcoming on record as to when, how, in what manner and to whom PW1 asked to join the investigation at Crl.Appeal No.883-SB of 1998 10 the time of recovery. In the absence of the same, it cannot possibly be believed that as none wanted to be a witness of the police, so, no person was joined as a witness by the police. It was obligatory on the part of the police to join the independent witness at the time of recovery. 31. Meaning thereby, no efforts were made to join an independent witness by the Investigating Officer. Since, the recovery was effected from main frequented road, where a number of persons are always available. PW1 did not join any of the independent witness intentionally and deliberately. In that eventuality, it was imperative on the part of the Investigating Officer to join an independent witness, at the time of search and seizure or at least to make a genuine, sincere and real effort, to join such a witness. The search and seizure, before an independent witness would have imparted much more authenticity and creditworthiness, to the proceedings, so conducted by PW1. It would have also cogently strengthened the prosecution case. The said safeguard to join an independent witness was also intended to avoid criticism of arbitrary and high-handed action of the police officer. Above being the position, it was mandatory duty of PW1 to join independent source and to follow the reasonable, fair and just procedure and to lend credibility to the procedure relating to search and seizure in the present set of circumstances. 32. Possibly, no one can dispute that in the absence of corroboration through an independent source, the evidence of official witnesses cannot be disbelieved or ignored only on the ground of their official status, as urged by learned State Counsel. But, when the evidence of official witnesses is found to be not cogent, convincing, reliable, trustworthy and discrepant, then on account of non-corroboration thereof through an independent source, certainly a doubt is casts on the prosecution version. In the instant case, no implicit reliance can be placed on the evidence of only police officers, PW1 and PW2 on account of contradictions in their statements. According to initial version contained in original ruqa(Ex.PE), the police party was present near the bridge Kassi, Main Road, Gidderbaha-Bathinda, while according to PW1 and PW2, the police party was present in Bharu Chowk, Gidderbaha. PW1 in his cross- examination claimed that he had tried to join the independent persons but nobody was willing to join. The place of recovery is a thoroughfare. No Crl.Appeal No.883-SB of 1998 11 notice under Section 175 Cr.P.C. was given to the persons, who did not agree to join with us. He cannot tell the name and address of the person whom he asked to join as a witness. While according to PW2, no independent person was available at the spot. No person was sent to call for an independent person. The place of recovery is an open place and the road is frequented one, which is also clear from rough site plan(Ex.PF). According to PW1, the pistol and the cartridges were taken into possession vide recovery memos(Exs.PA and PB). 33. Not only that there are discrepancies in the evidence of prosecution witness, even PW1 and PW2 did not state that the pistol and cartridges were sealed into sealed parcels. On the contrary, PW1 and PW2 have categorically admitted in their cross-examination that the pistol and cartridges were not sealed at the spot. In other words, neither the pistol and cartridges were sealed by PW1 at the spot, nor any cogent explanation in this connection is forthcoming on record. In that eventuality, the possibility of subsequent planting of weapon, as urged on behalf of the appellant, cannot possibly be ruled out. Moreover, there are always chances of tempering with the weapon and cartridges by any person. That means, the prosecution has even failed to connect the recovery of pistol with the appellant. Therefore, no conviction can be based on such type of discrepant evidence of the police officials. 34. Thus, seen from any angle, if the fact of acquittal of all the accused including the appellant in the main case, non-joining of independent witness at the time of recovery, though available, contradiction in the statements of police officials, PW1 and PW2 and the totality of other facts and circumstances emanating from the evidence on record, as described here-in-above, are put together, then to my mind, conclusion is inescapable and irresistible that the prosecution has miserably failed to connect the appellant with the indicated crime and, therefore, he deserves the benefit of reasonable doubt in this respect. The trial Court fell in legal error in convicting and sentencing him in the obtaining circumstances of the case. 35. No other point worth consideration has been urged or pressed by the learned counsel for the parties. 36. In the light and for the reasons recorded here-in-above, the Crl.Appeal No.883-SB of 1998 12 appeal is hereby accepted. The impugned judgment of conviction and order of sentence are set aside. Having extended the benefit of reasonable doubt, the appellant is acquitted of the charge framed against him. Needless to say that the compliance and procedural consequences would follow accordingly. March 08, 2010 ( MEHINDER SINGH SULLAR) seema JUDGE