IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1371 of 2001 (Old No.305/1998) Zabbad … Appellant Versus The State … Respondent Mr. Rajendra Singh, Advocate for the appellant Mr. H.O. Bhakuni, Brief Holder for the State Dated: September 16, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred against the judgment and order dated 31.1.1998/2.2.1998 passed by the Sessions Judge, Haridwar while adjudicating the Sessions Trial Nos.279 of 1994 and 280 of 1994 collectively. Both the trials proceeded against the same accused Zabbad (appellant). Sessions Trial No.280 of 1994 was for the offence of Section 307 IPC while the other session trial was for the offence of Section 25 of the Arms Act, 1959 (hereinafter will be referred as the Act). The facts are that on 27.6.1993, when the police party was patrolling, then the accused Zabbad opened the fire upon the policemen. He was nabbed at the spot and a country- made pistol was allegedly recovered from his possession. After the conclusion of the trial, the learned Sessions Judge did not find the guilt proved for the offence of Section 307 IPC, but he convicted the accused u/s 25 of the Act for the reason that his counsel in the lower court threw a suggestion to the PW1 S.I. Ramveer Singh Solanki. The suggestion was “there was another country-made pistol recovered from the accused other than the one which was used for opening the fire upon the police”. This suggestion was denied by the witness. On the basis of the above suggestion, the learned Sessions Judge discerned that the accused himself has admitted the recovery 2 of a country-made pistol from his possession other than the one, which was used for opening the fire upon the policemen. This was the solo basis made for recording the conviction of the accused u/s 25 of the Act and he was directed to go one month’s R.I. nay the amount of Rs.1,000/- fine. Learned counsel for the appellant has relied upon the following precedent of the Hon’ble Allahabad High Court: - 1. Bhupal Singh and others Vs. State of U.P. reported in 1986 A.Cr.R. Page 412, wherein it was held that the purpose for which a counsel cross-examines a witness in a criminal trial is not only to test his veracity but also to elicit facts which help his defence. His further aim is to demolish the very story of the prosecution, if he can successfully do so. A question obviously put to a witness with the sole object of the demolition of the prosecution story, cannot amount to a statement by an accused suggesting the inference that he committed the offence merely because the question put to the witness was in the nature of a roving question. Therefore a finding of guilt based on such a question put to any witness of the prosecution by a counsel of an accused cannot be held based on evidence. Such a question is not an evidence in the case. It does not even constitute a confession of guilt by the accused because it does not amount to a direct acknowledgment of the guilt by the accused on whose behalf the question is put to the witness. It was further held in the above precedent that no finding of guilt can be based against the appellants on the basis of a question put by the counsel for the appellants to the eyewitnesses during cross-examination suggesting that, was it not possible that in a quarrel between them and the deceased during playing of cards, one of them had given a fatal axe blow to the deceased. The learned court below in that case convicted the appellant on the basis of the suggestion as 3 above. In that eventuality, the Hon’ble Allahabad High Court was of the view that the conviction could not be recorded against the appellants on the basis of such a suggestion. Learned counsel for the appellant relied upon another precedent of the Hon’ble Allahabad High Court in the case of “Prem Shanker and another Vs. State of U.P. reported in 2000 (2) A.Cr.R. 1553” wherein it was held that “it is always open for the accused to take several pleas or to put as many suggestions as his counsel may choose and merely because some inconsistent suggestions were thrown to the witness, no advantage of the same can be availed of by the prosecution while discharging the burden of proving the guilt of the accused.” It has further been pleaded on behalf of the appellant that he was not rendered opportunity while recording his statement u/s 313 Cr.P.C. putting that suggestion in the form of question to him. On a perusal of the statement recorded u/s 313 Cr.P.C. before the trial court on 5.6.1997, it reveals that no such suggestion, in the form of question, was asked from him. As such, he could not avail any opportunity to explain and qualify the incriminating suggestion made by his counsel to the PW1. In such a situation, the Hon’ble Apex Court in the case of “Punjab Singh Vs. State of Haryana reported in 1984 Supreme Court Cases (Criminal) Page 484” has opined that the circumstances, which were not put to the appellant in his examination u/s 313 Cr.P.C., have to be completely excluded from consideration. So, in view of the above, this Court also opines that such sole suggestion, which is likely to incriminate the accused and which has been made the sole basis for conviction u/s 25 of the Act, is not acceptable. Such a suggestion could not and should not have been made a basis while recording the conviction of the accused u/s 25 of the Act. 4 This way, the appeal deserves to be allowed. The appeal is, therefore, allowed. Conviction and sentence recorded by the Sessions Judge, Haridwar for the offence of Section 25 of the Act vide judgment and order dated 31.1.1998/2.2.1998 against the appellant Zabbad for one month’s R.I. with fine of Rs.1,000/-, is hereby set aside. He is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Servesh Kumar Gupta, J.) September 16, 2011 Rajeev Dang