1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 308/1997 Decided on: August 27 , 2010 State of H.P. …Appellant. VERSUS Shankar Lal .Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting?1 For the Appellant: Mr.Rajinder Dogra, Addl. AG with Mr.Anil Jaswal, Dy.AG. For the respondent: Mr. Rajesh Verma, Legal-Aid counsel. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 15.2.1997 passed by learned Sessions Judge, Solan, HP in Sessions Trial No. 1-A/7 of 1996 thereby acquitting the respondent / accused for the offence under Section 5 of Indian Explosives Act, 1908 in reference to FIR No. 104/3 dated 22.8.1993. 2. Mr. Rajesh Verma, Advocate is requested to assist the Court as Legal-Aid counsel. He has agreed to assist the Court. Whether the reporters of the local papers maybe allowed to see the judgment? 2 3. The prosecution case is that on 22.8.1993 the then SHO Police Station, Arki, while on patrol duty, along with Sh. Lal Singh, Assistant Sub Inspector of Police, Bhag Singh, Head Constable, Prem Dass Constable and Smt. Renu, a lady constable at village Tanseta, received an information that the accused is in possession of illicit liquor. On receiving such information, raiding party constituted, as above, associated Joginder Singh and Sant Ram, the two independent witnesses, raided the house of the accused and on search, 32 Gelatine, 9.07 meters of fuse wire, 10 detonators and leadwire 7.100 K.Grams was recovered from the kitchen of the house of the accused. The same were taken into possession vide a recovery memo and were sealed there with a seal bearing mark ‘V’. FIR No. 104/1993 was lodged on 22.8.1993. After investigation, the accused/respondent was charged for the aforesaid offence. 4. In order to prove its case, prosecution has examined as many as 9 prosecution witnesses, whereas, to his statement under Section 313 Cr.PC, accused denied the prosecution case. 5. Rattan Singh (PW-6), Sub Inspector of Police, who is author of the case has stated that Galatine etc, referred above, was taken into possession vide recovery memo Ex PA. Copy of the recovery memo was handed over to the accused. He simply stated that after the articles were taken into possession vide recovery memo, he sent a note to Police Station, Arki for registration of the case. 6. PW-1, Joginder Singh, an independent witness, has stated that he was President of Gram Panchayat, Barog and 3 when he reached at the house of accused Shankar Lal, on being summoned by the police party, he saw some Detonators were lying in the lawn of the house of the accused Shankar Lal. At that time, police officials were also standing there. PW-1 further stated that that accused is farmer and in the past he worked as Beldar (Labourer) in Public Works Department on daily wages. In the cross examination, PW-1 has stated that family of the accused consists of his three sons and two daughters-in-law besides his wife, living jointly and the village of PW-1 is at a distance of 2 ½ Km from the house of the accused. As per the testimony of PW-1 that when he reached in the house of accused, Sant Ram was was already there. Accused Shankar Lal was not present in his house at that time. PW-1 was declared hostile. 7. PW-2 Hem Raj has stated that he was working as Home Guard and was deployed on additional duty at Police Station, Arki during the year 1994. However, his testimony is not very material to the prosecution case. PW-3 Sant Ram, other independent witness, was associated by the police party had gone to the house of accused. PW-2, in his endeavour to support the prosecution case, has stated that the above material was recovered and was seized vide seizure memo Ex PA. PW-3 in his cross examination has stated that his house is at a distance of half Kilometer from the house of the accused and he was on visiting terms with the accused and there are 8 or 10 houses at the village of accused. A constable had come to his house, who asked him to come to the house of the accused. When PW-2 reached the house of accused in between 1.30 to 2 and many 4 persons of the village of the accused had gathered there including PW-1, Joginder Singh. 8. As per the testimony of PW-3, when he and Joginder had reached the house of the accused simultaneously, he noticed about 6 or 7 rooms in the house of accused. PW-3 has further stated that three sons and two daughters-in-law and wife of the accused residing in that house and the investigation and recovery at the house of the accused on that day had been concluded 4-3 PM. Prosecution case is also not supported by the testimony of PW-3 in its entirety. PW-3 has stated that PW-1, the other independent witness has reached simultaneously, whereas PW-1 has stated that PW-3 was already present when he reached to the house of accused. In the testimony of PW-3, there are 8-10 houses in the village of accused and many persons of the village of the accused had already gathered there including PW-1 at the spot. Such aspect is missing from the testimony of PW-1. The house of PW-1, as per his statement, is at a distance of 2 ½ Km away from the house of the accused and house of PW-3 is half Kilometer away from the house of the accused. It is very surprisingly how two persons of remote places, were brought for the reasons best known to the prosecution, to be associated with the raiding party when many persons of the same village were already gathered at the time of incident. Though both the independent witnesses, PW-1 and PW-3 have not supported the prosecution case and their versions were self contradictory, yet they were declared hostile. From the testimony of PW-1, it appears, that no search was made in his presence 5 and no recovery of above incriminating articles were seized before him. PW-3 has also supported the prosecution case to the extent that incriminating articles were recovered but he has not supported the seizure. 9. PW-4, HC Ram Dass and PW-5 Constable Sat Pal, PW-6 Sub Inspector Rattan Singh, PW-7 Retired ASI Som Dutt, PW-8, Sub Inspector, Lal Singh have made endeaovur to support the prosecution case to the extent the role assigned to them. 10. PW-4, H.C. Ram Dass has stated that he took samples from the packets containing led, caps of detonators and fuse wire. Half meter fuse wire was taken for the purpose of sample besides two detonator caps and a piece of led. A memo was prepared Ex PB. Thereafter, the packets were resealed with stamp bearing mark ‘A’. He dispatched four packets, sample of Jallatine, sample of fuse wire and samples of led and caps of detonator to CFSL, Chandigarh through constable Sat Pal . The sample of led was returned on the ground that the same was to be tested at FSL, Bharari. 11. PW-5 carried four packets to CFSL, Chandigarh which were handed over to him by Ram Nath. PW-6 Rattan Singh, the author of the case and leader of the raiding party, supported the prosecution case and has stated that with the above mentioned police officials along with Joginder Singh and Sant Ram, PW-5 searched the house of the accused and the above incriminating articles were recovered. PW-6, in his cross examination, has stated that there is only one house at village 6 Ranog besides the house of the accused and he was not aware that how many members of the family of the accused reside with him in that house. Testimony of PW-6, however, is contradictory regarding the number of houses in the village of accused and is also contradictory to the extent that PW-1 and PW-3, independent witnesses, were associated with the raiding party, whereas PW-1 though was declared hostile, but has very categorically indicated that when he reached the spot, Sant Ram, PW-3 was already present at the house of accused and he observed incriminating articles in the lawn of accused. 12. PW-7 Som Dutt has simply presented the accused in the Court. PW-8 Lal Singh, Sub Inspector, who partly investigated the case and took three samples from the case property and prepared memo Ex PB, stated in his cross examination that there are no residential houses situated nearby police station, Arki, but there are residential houses in Arki Bazar and the police station is situated at a distance of about 50 yards. 13. PW-8, has, however supported the prosecution case to the extent it should be. Rather, it is contradicting the testimony of PW-6. PW-9 S.K. Baldi, had given prosecution sanction in the present case in reference to the request of Dy.S.P. Solan dated 25.5.1995. 14. From the scrutiny of the prosecution witnesses and material on record, we notice that the two independent witnesses i.e. PW-1, belongs from a village of 2 ½ KM away from the village of accused and PW-3 belongs to a village half Km away from the village of accused, were associated and were said to be 7 witnesses of raid and recovery and taking possession of incriminating articles. However, they have belied the prosecution case and have contradicted in their own version and also with the version of PW-6. The raid in question was made in the absence of accused/respondent in house. 15. On analysis of the prosecution witnesses and material on record, learned Sessions Judge has rightly arrived at the conclusion that the production has failed to prove its case beyond reasonable doubt and also failed to bring home to the guilt. In our considered view, we find no scope for interference in the impugned judgment taking different view other than the view taken by learned Sessions Judge vide judgment dated 15.2.1997. Therefore, the criminal appeal, being devoid of merit, is accordingly dismissed. 16. We appreciate the assistance rendered by Mr. Rajesh Verma, Advocate, as Legal aid counsel. He is entitled to be paid Rs. 2,000/- as legal fee. 17. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), J. 27th August, 2010 ( V.K.Ahuja ), J. (sl) 8