IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 169 of 1997 Decided on : 22.07.2010. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Anil Kumar and another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal Dy. Advocate General. General. For the respondents : Mr. Malay Kaushal, Advocate, vice Mr. Ramakant Sharma, Advocate. _________________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 19.10.1994, passed by the learned Sessions Judge, Una, in Sessions Case No. 38 of 993, acquitting the accused Anil Kumar and Prem Pal for the offences punishable under Section 411 and Section 27 of the Indian Arms Act read with Sections 120-B, 302, 307 and 149 IPC. 2. According to the prosecution on 13.3.1992, at about 8.30 P.M. when Pritam Singh alongwith the members of his family, Piar Kaur (wife), Kashmir Singh and Narinder Singh (sons), Kashmir Kaur and Kulwant Kaur (daughters) and Surjit Singh 1 Whether reporters of the local papers may be allowed to see the judgment? 2 (son-in-law), were in his house in village Majara, the accused Maheshi alias Mahesh, Ghunghru alias Mdan Lal, Chandermohan alias Jaind and Sarvan, attacked them with revolver, drat and knives and caused death of Pritam Singh, Kashmir Singh and Kashmir Kaur and injured Piar Kaur and Kulwant Kaur. Accused Maheshi alias Mahesh was apprehended just after the occurrence, whereas, other accused Ghunghru alias Madan Lal, Chandermohan alias Jaind and Sarvan escaped. 3. After investigation all the accused above mentioned were charged under Sections 302, 307, 449 read with Section 149 and 120-B IPC and Section 27 of the Indian Arms Act, 1959 and the case was committed to the Sessions Court. In order to prove its case the prosecution examined as many as 29 witnesses. Whereas, the accused in their statement under Section 313 Cr.P.C, denied the prosecution case. 4. In Sessions Case No. 8 of 1992 under Sections 120-B, 302, 307, 149 I.P.C and Section 27 of the Indian Arms Act, Ghunghru alias Madan Lal, Maheshi alias Mahesh, Sarvan and Jaind alias Chandermohan were the accused. In another Sessions Case No. 38 of 1993, under Sections 120-B, 302, 307, 149 I.P.C. and Section 27 of the Indian Arms Act, 1959, Anil Kumar and Prem Pal were the accused. Both these Sessions cases were consolidated and joint trial was held by order dated 18.8.1993, passed by Sessions Judge, Una, District Una. Both the Sessions Cases were decided by common judgment dated 19.10.1994. 3 5. By the judgment dated 19.10.1994, accused Anil Kumar and Prem Pal were acquitted. Accused Maheshi alias Mahesh was convicted for the offences punishable under Sections 120-B, 449, 302, 307 I.P.C and Section 27 of the Indian Arms Act, 1959 and after hearing on the quantum of sentence on 21.10.1994, the accused Maheshi alias Mahesh was sentenced as under:- 1. sentenced to rigorous imprisonment for 3 years and fine of Rs. 1000/- for the offence punishable u/s 449 Indian Penal Code. In default of payment of fine he shall further undergo rigorous imprisonment for three months; 2. sentenced to death for the offence punishable u/s 302 Indian Penal Code; 3. sentenced to rigorous imprisonment for 5 years and fine of Rs. 2000/- for the offence punishable u/s 307 Indian Penal Code. In default of payment of fine he shall further undergo rigorous imprisonment for six months; 4. sentenced to rigorous imprisonment for 3 years for the offence punishable under Section 120-B Indian Penal Code; 5. sentenced to rigorous imprisonment for 3 years and fine of Rs. 1000/- in an offence punishable under Section 27 of Indian Arms Act, 1959. In default of payment of fine he shall further undergo rigorous imprisonment for three months. The other accused Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan were convicted for the offences punishable under Sections 120-B and 449 I.P.C and under Sections 4 302 and 307 I.P.C with the aid of Section 149 I.P.C. They were sentenced as under:- 1. Each of them was sentenced to undergo rigorous imprisonment for 3 years and fine of Rs. 1000/- each for the offence punishable u/s 449 Indian Penal Code. In default of payment of fine each shall further undergo rigorous imprisonment for three months. 2. Each of them was sentenced to rigorous imprisonment for three years for the offence punishable u/s 120-B Indian Penal Code; 3. Each of them was sentenced to rigorous imprisonment for life with fine of Rs. Rs. 2000/- for the offence punishable u/s 302 read with section 149 Indian Penal Code. In default of payment of fine each shall further undergo rigorous imprisonment for six months. 4. Each; of them was sentenced to rigorous imprisonment for 3 years and to a fine of Rs. 1000/- each for the offence punishable under Section 307 read with Section 149 Indian Penal Code. In default of payment of fine each of them shall further undergo rigorous imprisonment for three months. 6. Since the Sessions Judge had awarded sentence of death to accused Maheshi alias Mahesh, the proceedings were submitted to this Court for confirmation, as provided under sub-section (1) of Section 366 Cr.P.C, which was registered as Murder Reference No. 1 of 1994. The State of Himachal Pradesh had also filed Criminal Appeal No. 275 of 1994 against all the four accused Ghunghru alias Madan Lal, Maheshi alias Mahesh, Sarvan and Jaind alias Chandermohan under Section 377 Cr.P.C. on the 5 ground that the sentence awarded to them was inadequate. These four accused had also filed separate Criminal Appeals No. 153 of 1994, 151 of 1994, 154 of 1994 and 152 of 1994, respectively, challenging their conviction and sentence. Since the Murder Reference as well as all five appeals arose out of the common judgment, those were connected, heard and were disposed of by a common judgment dated 7.8.1995 of this Court (DB). In the result Murder Reference No.1 of 1994 was rejected and the death sentence awarded to Maheshi alias Mahesh was not confirmed and modified to sentence of rigorous life imprisonment. The other appeals of accused persons above mentioned, Criminal Appeals No. 151 of 1994 to 154 of 1994 against their conviction and sentence and of State of Himachal Pradesh, Criminal Appeal No. 275 of 1994 for enhancement of sentence, were dismissed by a Division of this Court comprising of Hon’ble Ms Justice Kamlesh Sharma and Hon’ble Mr. Justice L.S. Panta, Judges. 7. However, the present Criminal Appeal has been preferred against the order dated 19.10.1994, passed in Sessions Case No. 38 of 1993, acquitting the accused-respondent Anil Kumar and Prem Pal. While disposing of the above referred cases this Court (Division Bench) has not dealt with the case of accused- respondents Anil Kumar and Prem Pal and had only indicated that the learned Sessions Judge has acquitted both the above named accused disbelieving that they had stolen the revolver 6 Ex.P-16 from Sub Inspector Om Parkash and further transferred it to Ghunghru alias Madan Lal or Maheshi alias Mahesh. 8. We have heard the learned Dy. Advocate General for the appellant-State and Mr. Malay Kaushal, learned vice counsel for the respondents. 9. On scrutiny of the prosecution witnesses and material on record, it appears that the service revolver Ex.P-16 of SI Om Parkash of Police Post Nangal, was stolen on 6.9.1989 and the said revolver was recovered at the instance of Ghunghru alias Madan Lal on 30.9.1992. According to the prosecution, the aforesaid revolver Ex.P-16 was stolen by the accused Anil Kumar and Prem Pal and thereafter they kept it in their shop and the room in village Ajoli and then transferred the same to Ghunghru alias Madan Lal or Maheshi alias Mahesh co-accused. As such both the accused were charged for the offences punishable under Section 411 IPC and Section 27 of the Indian Arms Act, 1959. However, on scrutiny of prosecution evidence, it is noticed that there was no iota of evidence on record emanating that both the above named accused have ever met Ghunghru alias Madan Lal and that they have transferred the revolver Ex.P-16 to them. The only prosecution evidence against accused Anil Kumar and Prem Pal was that accused Ghunghru alias Madan Lal had demarcated the shop of Anil Kumar on 1.4.1992 and that marks of bullets were found in the shop and two live and one empty cartridges were recovered 7 from the room of Prem Pal in village Ajoli. PW-11, Shiv Kumar, who had taken the photographs of the shop of Anil Kumar, had clearly admitted that he had not seen any bullet mark in the wall of the shop. Mr. Sheetal Singh, another witness had also admitted that the shop of Anil Kumar was opening daily. In such circumstances, it was improbable that bullet marks in the wall of shop of Anil Kumar could not come to the notice of any customer visiting the shop. 10. There is no iota of evidence indicating that the room from where alleged two live and one empty cartridges were recovered was owned or possessed by Prem Pal nor the said live cartridges were sent to the ballistic expert for report that those were fired from the revolver Ex.P-16. In our considered view the prosecution evidence in this regard is scanty and insufficient to conclude against the accused Anil Kumar and Prem Pal that they were in possession of those premises, much less the revolver Ex.P-16 and two live and one empty cartridges were recovered from the room of Prem Pal. Nothing is emanating from the prosecution evidence to show that the accused Anil Kuamr and Prem Pal have ever came in possession of revolver Ex.P-16 at any time or they transferred it to any other person much less to any of the accused. 11. In view of the above, in our considered view the prosecution has miserably failed to prove the charges under 8 Section 411 IPC and under Section 27 of the Indian Arms Act against both the accused Anil Kumar and Prem Pal. 12. On scrutiny of prosecution evidence and material on record, we find that the learned trial Court has rightly acquitted both the accused Anil Kumar and Prem Pal from the offences alleged against them. Resultantly the appeal is dismissed being devoid of any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. July 22, 2010. (lsp)