1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT BHAIRON SINGH & ANR. VS. STATE OF RAJASTHAN. S.B.Cr. Appeal No. 683 of 2006 under Section 374 Cr.P.C. against the judgment and order dated June 26, 2006 passed in Sessions Case No. 16/2006 (5/2006) of Addl. Sessions Judge (Fast Track) Hindauncity (Distt. Karauli (Raj.) convicted and sentneced the accused appellants for the offence under section 307 IPC to undergo 7 years RI and fine of Rs. 2,000 each and in default of payment of fine further imprisonment of six months. Under section 353 IPC one year RI and fine of Rs. 500 in default of payment of fine further imprisonment of one month each. Date of Order : August 20, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Reportable Mr. Jitendra Pandey, for the appellants Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The accused appellants have filed this appeal against the judgment and order dated June 26, 2006 passed in Sessions Case No. 16/2006 (5/2006) of Addl. Sessions Judge (Fast Track) Hindauncity (Distt. Karauli (Raj.) convicted and sentneced the accused appellants for the offence under section 307 IPC to undergo 2 7 years RI and fine of Rs. 2,000 each and in default of payment of fine further imprisonment of six months. 2. Brief facts of the case are that on October 21, 2005 on receiving an information from informant CI Ramchandra Singh along with other police officials went towards village Sarup ka Beda, and on seeing the police officials in uniform two miscreants having deadly weapon on a motor cycle without number plate took turn on Kachha Road Bhopar Ki Kothi. The police officials with Ramchandra CI, told that Motor Cycle is driven by Dacoit Bhairon Singh and pillion driver is Ramraj. They went towards the motor cycle and it was found that Dacoit Bhairon Singh was having a Pistol and live cartridges with him. On giving alarm, Ramraj who was seating on pillion seat of the motor cycle fired at Police party in order to kill them. Ramchandra CI also fired at the miscreants but the bullet did not hit them. On seeing the other police party surrounded by them from opposite direction, they tried to ran away from the place but the police officials caught them. On arresting the miscreants disclosed their names to be Bhairon Singh and Ramraj. From their 3 possession one 315 Bore Rifle and 25 live cartridges and one Country made pistol of 315 Bore and one empty cartridge were recovered. The accused appellants were not having any licence to keep the fire arms. On this the police registered a case under section 307, 353, 34 IPC and 3/25 of the Arms Act. After investigation the police filed challan against the accused appellants and the case was committed to the court of sessions where from it was transferred to the court of Addl. Sessions Judge (Fast Track ) Hindaun City Distt. Karauli. The trial court framed charge under sections 307, 353 and 3/25 Arms Act. The accused appellants denied the charge and claimed to be tried. The prosecution in support of its case produced 10 witnesses and exhibited 8 documents. The statements of the accused under section 313 Cr.P.C. were recorded and in their statements they stated that they surrendered before the Police Station Nadoti but have been falsely implicated in the case. After hearing arguments the trial court convicted and sentenced the accused appellants as mentioned above vide judgment dated June 26, 2006. 4 3. The learned counsel for the accused appellants argued that the judgment of conviction and sentence passed by the trial court is legally not sustainable being contrary to the provisions of law as also the material obtaining on the record. The trial court has not properly considered the fact that all the prosecution witnesses are police persons and not a single independent witness was produced by the prosecution. All the prosecution witnesses categorically stated that not a single person has sustaiend injuries either on his person or on their jeep, even then the trial court passed the order of conviction and sentence. The trial court had not properly considered the fact that no person has sustaiend injuries on his person then how the appellants can be convicted for the offence under section 307 IPC. The judgment of sentence passed by the trial court is highly excessive and unreasonable which deserves to be modified. 4. The learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the appellants and stated that the court below after considering all the evidence, documents and record passed the order 5 of conviction, and rightly sentenced the accused appellants. This impugned judgment of the trial court is just and proper and no interference is required to be called for in the impugned judgment. 5. I have heard the learned counsel for the parties and gone through the entire record and judgment of the trial court. 6. At this stage, the prosecution evidence produced by the prosecution is necessary to be looked into before proceeding further. PW.1 Jai Narain Meena, Dy. S.P. Todabheem stated that on October 21, 2005 at 1. proceeded with full force to Sarup Ka Beda where two miscreants Bhairon Singh and Ramraj were there. At Sarup Ka Beda SHO Todabhim was also there and all surrounded to arrest miscreants who were on Motorcycle. r. On seeing police personnel they drove towards Kachha Road. After three four kilometers, these miscreants on giving alarms they fired at SHO and Police Party. Both the miscreants being surrounded by two police parties from opposite directions they tried to ran and they were caught. On interrogation they disclosed their names to be Bhairon Singh and Ramraj 6 Gurjar. From their possession 315 Bore Rifle and 315 Bore Katta along with 25 live cartridges and one empty cartridge were recovered. PW.2 Girdhari Lal, ASI Todabheem, PW.3 Gajanand ASI Hindaucity, PW.4 Ballot Ram, SI, Todabhim, PW.5 Lakiram HC Todabheem, PW.6 Ramchandra Singh, SHO Todabheem stated in their statements what has been stated by PW.1 in his statement. PW.7 Ramniwas Constable stated about the Naksa Moka prepared in his presence which is Ex. P.8 on which he signed C to D. PW.8 Rameshwar Singh Incharge Balghat Chowki also given the similar statement as was given by PW.9 Mohan Singh, Constable of Police Station Todabheem and PW.10 Dharamveer Singh, SHO Nadoti stated about the investigation done by him and memos prepared by him. Both the accused appellants in their statements under section 313 Cr.P.C. Stated that they surrendered before the PS Nadoti on their own accord and they have been falsely implicated in the instant case. The extract of the statements of witnesses PW.1 Jai Narain Meena, Dy. S.P. Todabheem PW.2 Girdhari Lal, ASI Todabheem, PW.3 Gajanand ASI Hindaucity, PW.4 Ballo Ram, SI, Todabhim, PW.5 Lakiram HC Todabheem, PW.6 7 Ramchandra Singh, SHO Todabheem, PW.8 Rameshwar Singh Incharge Balghat Chowki also given the similar statement as was given by PW.9 Mohan Singh, Constable of Police Station Todabheem increminating accused appellants firing at police party read as under: पी.ड.1 जयनारायण मीणा करȣब तीन-चार Ǒकलोमीटर पीछा करने पर एसएचओ ने बदमाशɉ को रोकने के िलये ललकारा तो पीछे बैठे बदमाश ने एस.एच.ओ. से व पुिलस पाटȹ पर बÛ दक से फायर Ǒकया जब ू मɇ जाÞ ता से आगे से जीप से बदमाशɉ के सामने आया तो आगे बैठे बदमाश ने मुझ पर व पुिलस पर जान से मारने कȧ नीयत से कटटे से फायर Ǒकया इतने मɅ दोनɉ बदमाश पुिलस पाǑट[यɉ से िघर जाने के कारण मोटरसाईǑकल को पटककर भागने लगे तो तुरÛ त पुिलस ने दोनɉ बदमाश को दबोच िलया ǔजनसे नाम पता पूछा तो एक बदमाश ने अपना नाम भैǽिसंह तथा दसरे बदमाश ने अपना नाम रामराज ू गूजर होना बताया था। पी.ड.2 िगरधारȣलाल सी.आई.साहब ने बदमाशɉ जो मोटरसाईǑकल पर सवार थे उÛ हɅ रोकने के िलये ललकारा तो पीछे बैठे बदमाश रामराज ने जान से मारने कȧ गज[ से 315 बोर कȧ बÛ दक से गोली ू चलाई जो सी आई साहब कȧ जीप पर चलाई थी। Ǒफर सी.आई. साहब ने हवाई फायर Ǒकया। हम सामने से नजदȣक आये करȣब 20-30 कदम दर थे Ǒक भैǽिसंह ने मोटरसाईǑकल ू पटक कर भैǽिसंह ने कटटे से फायर Ǒकया। पी.ड.3 गजानंद पीछे बैठे रामराज ने बÛ दक से जान से मारने कȧ नीयत से ू फायर Ǒकया जो एस.एच.ओ. साहब कȧ तरफ Ǒकया गया ǔजसमɅ पाटȹ मɅ हम बैठे थे। करȣब 20-25 गज आगे चलने के बाद सामने से आ रहे ौी ǑडÜ टȣ साहब जयनारायण के उपर मोटरसाईǑकल चला रहे भैǽिसंह ने फायर Ǒकया। पी.ड.4 बã लोराम पीछे वाले रामराज ने हमारȣ पुिलस पाटȹ पर जान से मारने को एक फायर Ǒकया ǔजसके बचाव मɅ थाना अिधकारȣ ने भी अपनी ǒपः टल से बचाव मɅ एक फायर Ǒकया तथा आगे से सी ओ साहब वाली पाटȹ ने जैसे बदमाशान का दबाव बनाया तो भैǽिसंह नाम के बदमाश ने सी.ओ. साहब कȧ पाटȹ पर कटटे से जान से मारने के िलये फायर Ǒकया। 8 पी.ड.5 लÈ खीराम हमने दबाव बढाया तो पीछे से मोटरसाईǑकल पर बैठे रामराज ने पुिलस पाटȹ को जान से मारने कȧ िनयत से एस.एच.ओ. साहब कȧ पाटȹ पर फायर Ǒकया जो बÛ दक से ू Ǒकया था। उसके बाद मɅ एस.एच.ओ. साहब अपनी जान मान कȧ सुर¢ा के िलये एक ǒपः टल से हवाई फायर Ǒकया था। जैसे हȣ हमारȣ सी.ओ.साहब वाली गाड़ȣ ने आगे से दबाव बढाया तो सी.ओ. साहब वाली गाड़ȣ मɅ भैǽिसंह कटटे से फायर Ǒकया जो मान से मारने कȧ िनयत से Ǒकया था। पी.ड.6 रामचÛ ििसंह बदमाशɉ को ǽकने के िलये ललकारा तो जवाब मɅ पीछे बैठे बदमाश रामराज ने पुिलस पाटȹ पर एक फायर Ǒकया जो जान से मारने के उददेँ य से Ǒकया था जवाब मे मैनɅ आ× मर¢ा के िलये ǒपः टल से हवाई फायर Ǒकया। जो आ× मर¢ा के िलये फायर Ǒकया था उसका खोखा वहȣं राः ते मɅ िगर गया जो तलाश करने पर वह नहȣं िमला। इसके बाद मɅ भैǽिसंह ने सामने से आ रहȣ सहाब कȧ गाडȣ कȧ तरफ कटटे से फायर Ǒकया। पी.ड.8 रामेँ वरिसंह मɇ एस.एच.ओ. साहब वाली पाटȹ मɅ था सी.ओ.साहब दसरȣ ू तरफ से आ रहे थे जैसे हȣ हमारȣ पाटȹ ने पीछे से दबाव बनाया तो रामराज ने बÛ दक से फायर जान से मारने कȧ ू नीयत से Ǒकया था इसके बाद पुिलस पाटȹ मɅ से एस.एच.ओ. साहब रामचÛ ििसंह ने अपनी ǒपः टल से अपनी आ× मर¢ा के िलये फायर Ǒकया इतने मɅ ौीमान सी.ओ. साहब सामने से आ रहे थे दबाव देखकर भैǽिसंह ने कटटे से फायर Ǒकया। पी.ड.9 मोहनिसंह मोटरसाईǑकल पर पीछे बैठे रामराज ने जान से मारने कȧ नीयत से फायर Ǒकया। बदमाशान अपने को िघरा समझकर सामने से आ रहे ौीमान सी.ओ. साहब के उपर भैǽिसंह ने फायर Ǒकया पुिलस पाटȹ पर भी भैǽिसंह ने फायर Ǒकया। बदले मɅ ौीमान एस.एच.ओ. साहब ने अपनी ǒपः टल से हवाई फायर Ǒकया। Thus, it is clear that all the prosecution witnesses whose statements have been extracted above, who are police personnel in equivocal language stated that first Ramraj fired at Police Party/ SHO and then SHO fired at the miscreants and thereafter Bhairon Singh 9 fired at police party. The prosecution has not been able to collect a single independent witness to support their version. Even documentary evidence in support of their version of firing from Rifle or Country made gun was not produced. The Rifle or Country made gun or the empty cartidges recovered from the accused appellant, were fired from both these arms or not have not been disclosed. A look at the documents exhibited by the prosecution in support of the prosecution case is also necessary. Ex. P.1 is arrest memo of Bhairon Singh, accused appellant prepared at 4 p.m. at Bholu Ki Kothi. Ex.P.2 Arrest Memo of Ramraj, prepared at Bholu Ki Kothi at 4.15 p.m. Ex.P.3 is search and seizure form of recovery of fire arm from accused appellant Bhairon Singh. Ex.P.4 is search and seizure form of recovery of fire arm from accused appellant Ramraj. Ex.P.5 is search and seizure from of recovery of Motor Cycle from accused appellant Bhairon Singh. Ex. P.6 is Rapat of Rojnamcha of Police Station Todabheem. Ex.P.7 FIR lodged at Police Station Todabheem under section 307, 353 and 34 IPC at 2.30 p.m. on October 21, 2005. Ex. P.8 is crime details form. No other documents were produced 10 by the prosecution. The witnesses produced by the prosecution in the instant matter are only the police personnel and no independent witness was produced by the prosecution to support its case. From the perusal of the documents of the prosecution it appears that even the fire arms recovered from the possession of the accused appellants were not sent to FSL, for examining whether the fire arm used by the accused appellants were serviceable or not and the empty cartridge recovered by them was fired from the fire arms recovered from the accused appellants. 7 The Apex Court in Sukhpal vs. State of Haryana (1995) 1 SCC 10, in para No.4 held as under : 4.After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties it appears to usthat in the instant case, the prosecution has examined the witnesses to establish that the accused had been apprehended with a rifle of 315 bore and 109 live cartridges of such rifle. It is an admitted position that the accused had no licence or permit to possess the said rifle and cartridges at the relevant time. It is also an admitted position that the TADA Act was applicable in the area where the accused was apprehended. Accordingly, all the three ingredients 11 as indicated in the said Constitution Bench decision, have been fulfilled in the instant case. Normally, the presence of PW 5 and PW 6 in the police chowki was not expected at that hour but PW 5 and PW 6 have given a reasonable explanation as to why they had come to the police chowki on that day and why they had waited there. We do not find any valid reason to discard the evidences adduced in the case by PW 5 and PW 6. Apart from that, the police personnel have also deposed and such depositions stand fully corroborated by the evidences of PW 5 and PW 6 and by the recovery of the rifle and cartridges. It may be indicated here that as a rule of prudence, corroboration preferably by a reliable witness is desirable. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness. In our view, the learned counsel for the State is justified in her contention that in the instant case, firing capability of the said rifle has been found by an expert, namely, an armourer who has a special training in the subject. It is not absolutely necessary to make a test- firing for the purpose of ascertaining whether or not a rifle is capable of firing. We are, therefore, not inclined to hold that the firing capability of the said rifle has not been established in the instant case. It also appears to us that the accused was charged under Section 5 of the TADA Act but he has not given any explanation as to why and for what purpose he had possessed the said rifle and the said cartridges. Even when opportunity under Section 313 CrPC was given to the accused, no statement has been made as to why the said arms and ammunition had been kept by him at the time of his apprehension. In our view, in the facts and circumstances of the case, the accused had sufficient opportunity to explain the purpose of possession of the said arms and ammunition and to 12 rebut the statutory presumption under Section 5 of the TADA Act but he has failed and neglected to give any explanation or evidence which may be even remotely construed as an evidence by way of rebuttal. In the above case the Apex Court held that as a rule of prudence it is desirable that the evidence of police personnel should be corroborated preferably by a reliable witness. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness. The Apex Court in Brijpal vs. State (Delhi Administration) (1996) 2 SCC 676 in para 4 held as under : 4. We have looked into the depositions given in this case and the judgment given by the learned Designated Judge. It appears that the prosecution case has been established by cogent evidences given by the witnesses which are not inconsistent or contradictory. In our view, learned Designated Court has rightly held that since only the police personnel had been examined in this case, their depositions are not liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get which independent witnesses. In the instant case, it has been established 13 from the evidence that the pistol and cartridges were seized from the person of the appellant and after getting them properly sealed they were deposited in the Police Mal Khana, in sealed condition. The Incharge of the Mal Khana has deposed that such weapons remained intact and in sealed condition until the same were sent for being tested by the expert. So far as the question of examining of the said pistol by the expert is concerned, it appears from the depositions of the said expert that he had obtained certificate of technical competency and armour technical course from Bhopal and he had also long experience of inspection, examination and testing of the fire arms and ammunition. In our view, the said police personnel should be held to be expert in arms. The decision relied upon by Mr. Singh in Abdula Pochamma Vs. State of A.P. (1989 Supp. (2) SCC 152) in this connection is clearly distinguishable in the facts of this case. In the case of Abdula it was alleged by the prosecution that a grenade was recovered from the accused but whether the substance recovered was a grenade or not had not been examined by a proper expert and the court gave benefit of doubt by not placing implicity reliance on the testimony of an ASI that the object was a grenade. In the instant case, we have already indicated that the armorer as a matter of fact, had also fired one of the cartridges from the seized pistol which was recovered from the possession of the accused . In Abdula Pochamma vs. State of Andhra Pradesh (1990) SCC (Cr.) 36 (1989 (2) SCC 152, their Lordships of the Supreme Court in paras 3 and 4 held as under : 14 “3. Learned counsel for the appellant argued before us that except the ipse dixit of PW.3 there is no evidence to show that the object found in the appellant's hand bag was indeed a hand grenade or other explosive substance. Admittedly the alleged hand grenade had not been sent to any expert to find out whether it was, in fact, a hand grenade or an explosive substance. Even so, the Designated Judge has proceeded on the basis it was a hanbd grenade and convicted the appellant solely relying on the statement of PW.3 that as a police officer he was in a position to say that the object recovered from the appellant was indeed a hand grenade. No evidence had been let in to show that PW.3 had the requisite knowledge of explosive substances and the competence to certify that the object found in the appellant's bag was a grenade. The fact remains that the services of an expert were sought for to examine the alleged hand grenade but when the expert faield to respond the call, the prosecution had simply chosen to make PW.3 certify that what was recovered was indeed a hand grenade. 4. In the circumstances, we are of the opinion that the prosecution has not proved in an acceptable manner that what had been seized from the appellant was a hand grenade or any other explosive substance so as to attract the operation of section 3(3) of the Act. The appellant is, therefore entitled to the benefit of doubt. Consequently the appeal is allowed and the conviction and sentence awarded to the appellant are set aside and she is ordered to be released from custody.” 8. It is true that the prosecution should not be insisted upon independent witness while convicting the accused on the basis of the police 15 personnel evidence, but the police personnel evidence should be corroborated by other evidence. I have looked into the findings arrived at by the trial court on the charges under sections 3/25 of the Arms Act. The trial court acquitted the accused appellants as the prosecution failed to produce the sanction from the District Collector for prosecution of the accused appellants under the provisions of the Arms Act. I am in agreement with the findings arrived at by the trial court in acquitting the accused appellants for the offence under sections 3/25 Arms Act. I may further add that the prosecution has not been able to produce a single witness pointing towards the fact that the arms used by the appellants were serviceable or not. Even for recoveries of arms from the accused appellants has also not been proved by independent witness. Thus the findings arrived at by the trial court is not perverse so far as acquittal of the accused appellants for the offence under sections 3/25 Arms Act. For the charge under section 307 IPC, the trial court's findings is solely based on the evidence of police personnel. But in the absence of any other independent witness or any other documentary evidence corroborating the version of 16 the prosecution witnesses particularly when they are police personal, no reliance can be placed on their ocular evidence. The charge framed by the trial court was that in order to kill the SHO/CI the fire arm was fired by both the accused appellants. Not a single evidence was produced independently to show that whether such a fire arm was used by the accused appellants. It may be possible that in order to avoid their arrest they must not have cooperated the police personnel or hindrance was created by them in the discharge of duties by the police personnel for that the trial court rightly convicted the accused appellants under section 353 IPC, but so far as guilt of the accused appellants for section 307 IPC, in absence of independent evidence or any corroborative evidence such like FSL report, benefit of doubt can be given to the accused appellants. The charge of section 307 IPC framed by the trial court is not proved and the accused appellants are entitled to be given the benefit of doubt in absence of any other independent evidence or corroborative evidence. 9. In the result the appeal is partly allowed as indicated below : 17 (i) The accused appellants Bhairon Singh and Ramraj are acquitted of the charge for the offence under section 307 IPC. (ii) The conviction of the accused appellants for section 353 IPC, is maintained, but the accused appellant Ramraj's sentence is reduced to the period already undergone by him. The accused appellant Bhairon Singh remained in custody for more than 4 years and two monhs and 10 days, he may be released forthwith if not required to be detained in any other case. (iii) The accused appellant Ramraj is on bail he need not to surrender. (iv) The judgment dated June 26, 2006 passed in Sessions Case No. 16/2006 (5/2006) of Addl. Sessions Judge (Fast Track)