Criminal Appeal No. 1197-SB of 2003 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 1197-SB of 2003 Date of Decision: 2.12.2011 Dharambir ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.A. Sheoran, Advocate for the appellant. Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present appeal has been filed by Dharambir. He was tried along with other co-accused in case arising out of FIR No. 27 dated 22.1.1999, registered at Police Station Sadar, Bhiwani, under Sections 399 and 402 IPC. The Court of Additional Sessions Judge, Fast Track Court, Bhiwani, vide impugned judgment dated 5.6.2003, had acquitted the appellant for the offence under Sections 399 and 402 IPC, however, had convicted the appellant alone in case FIR No. 24 dated 22.1.1999, registered at Police Station Civil Lines, Bhiwani, under Section 25/54/59 of the Arms Act, 1959 (hereinafter referred to as “the Act”) and vide a separate order dated 6.6.2003, sentenced him to undergo rigorous Criminal Appeal No. 1197-SB of 2003 2 imprisonment for a period of one year and to pay a fine of ` 300, in default whereof to further undergo simple imprisonment for a period of two months. The case against the appellant emerged in the statement Ex.PF made by Nihal Singh, Sub Inspector. He stated that on 22.1.1999, he was posted as Assistant Sub Inspector in the Staff of Central Investigating Agency. On that day, he along with PW.6 Rattan Singh, Inspector, was present at Meham Road, Bhiwani. Rattan Singh, Inspector, had received a secret information to the effect that 4/5 persons were sitting near the well of Gaushala and planning to commit a dacoity. On the receipt of the said information, Rattan Singh, Inspector, had sent a ruqa to the Police Station for registration of the case. Ruqa has been proved on the record as Ex.PF, on the basis whereof FIR No. 24 dated 22.1.1999 was registered at Police Station Sadar, Bhiwani, under Section 25/54/59 of the Act. Rattan Singh, Inspector, had constituted three raiding parties and Nihal Singh, Sub Inspector, was heading one of them. When they reached at the abandoned well near Gaushala, the accused persons started running from the place of occurrence. Nihal Singh, Sub Inspector, had followed one of the accused and apprehended him by chasing at a distance of two furlongs. The accused, so apprehended, had disclosed his name as Dharambir and during his search, a country made .315 pistol was recovered from the right side of his trouser. The above said pistol was unloaded and thereafter its sketch Ex.PM was prepared. The pistol along with its one live cartridge was taken into possession vide recovery memo Ex.PO. The said memo was attested by Hawa Singh and Mewa Criminal Appeal No. 1197-SB of 2003 3 Singh, Constables. As stated earlier, the appellant was acquitted for the offence under Sections 399 and 402 IPC but was convicted for the offence under Section 25 of the Act for having in his possession a country made pistol without any licence. To prove recovery thereof, the prosecution has examined PW.7 Nihal Singh, Sub Inspector and PW.11 Hawa Singh, Head Constable. Mewa Singh, Constable, has not been examined. The trial Judge, for recording acquittal of the appellant for the offence under Sections 399 and 402 IPC, held that since no independent witness was examined, implicit reliance cannot be placed upon the police officials. It will be pertinent to reproduce here paragraph Nos. 33 and 35 of the impugned judgment:- “33. No independent witness has been examined by the prosecution. Though Jorawar Singh was cited as a independent witness, who had allegedly heard the conversation amongst the accused persons but he has not been examined by the prosecution, rather he has been examined by the defence. All the remaining witnesses are official witnesses, who are interested in the success of the case. This is also fatal to the prosecution. XXX XXX XXX XXX XXX XX 35. Since the alleged conversation was not heard by either official witness or the public witness and it was not narrated as to what was being Criminal Appeal No. 1197-SB of 2003 4 planned and looking into the contradictions in the statements of prosecution witnesses, the prosecution case seems to be doubtful and all the accused persons are entitled to be acquitted under Sections 399/402 of the Indian Penal Code. Hence, in FIR No. 27 dated 22.1.1999 all the accused persons namely Dharambir, Anil and Sanjay are ordered to be acquitted under Sections 399/402 of the Indian Penal Code.” It is strange that in the present case, the testimonies of police officials are not being relied upon so far as offence under Sections 399 and 402 IPC is concerned on the ground that the prosecution has not examined any independent/public witness, then how their testimonies can be trusted for convicting the appellant for the offence under Section 25 of the Act. The reasoning given, for recording acquittal of the appellant for the offence under Sections 399 and 402 IPC, has equally to be applied to the recovery memo Ex. PO which has not been witnessed by any independent/public witness. Furthermore, if the testimonies of police officials cannot be believed for the main offence, it would be ironical if the same are believed for the recovery of a weapon. Thus, this Court is of the view that recovery of pistol, which surfaced in the testimonies of PW.7 Nihal Singh, Sub Inspector and PW.11 Hawa Singh, Head Constable, are not sufficient to uphold conviction of the appellant for the offence under Section 25 of the Act. Hence, this Court extends benefit of doubt to the appellant. The present appeal is accepted. The impugned judgement of conviction Criminal Appeal No. 1197-SB of 2003 5 and order of sentence, are set aside. The appellant is acquitted of the charges. He shall be set at liberty, at once, if not required in any other case. (Kanwaljit Singh Ahluwalia) Judge December 2, 2011 “DK”