Crl.Appeal No.1132-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1132-SB of 2001 Date of decision:6.1.2011 Gursewak Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mrs. Baljit Kaur Mann, Advocate, for the appellant. Mr.R.S.Sidhu, AAG, Punjab. ... JORA SINGH, J. Gursewak Singh filed this appeal to challenge the judgment of conviction and order of sentence dated 18.9.2001 by Additional Sessions Judge, Ferozepur, in Sessions Case No.9 of 28.9.1994/12.6.2001, arising out of FIR No.14 dated 17.1.1994 under Section 25 of the Arms Act, Police Station Mallanwala. By the said judgment, he was convicted under Section 25 of the Arms Act and directed to undergo RI for 2 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 30 days. Prosecution story, in brief, is that on the intervening night of 16/17.1.1994, police party headed by SI/SHO Mal Singh was holding nakabandi near the Dhani of Village Ratto Ke in connection with the investigation of the case under Section 3 of the Official Secret Act, Section 135 of the Customs Act, Section 25 of the Arms Act and Section 18 of the NDPS Act. At about 2.00 AM, SSP, Ferozepur, along with escort party and Crl.Appeal No.1132-SB of 2001 2 other officials of Custom Department, reached at the spot. Balkar Singh, SP (HQ) along with officials of Custom Department was deputed to hold nakabandi in the area of Village Muthianwali near river Sutlej. At about 4.30 AM, some unknown persons were seen while coming from the side of Pakistan Border. They were signalled to stop but instead of stopping, they started firing at the police party with an intention to kill them. Police officials also fired in self defence and cross firing continued for about 5 minutes. After that, accused had surrendered before the police party by raising their hands. On enquiry, one of them disclosed his name as Gurcharan Singh and the other as Gursewak Singh. On personal search of Gurcharan Singh, one .38 bore revolver was recovered from him. After unloading the said revolver, six empty cartridges were recovered. 125 gold biscuits, each weighing 10 tolas, were also recovered from one cotton belt tied around the waist of Gurcharan Singh. Separate proceedings were initiated by the custom officials regarding recovery of gold biscuits. Recovered gold biscuits were taken into police possession vide separate memo attested by the witnesses. Regarding recovery of arms and ammunition, separate proceedings were initiated by SI Gurdeep Singh. 85 Pakistani currency notes were also recovered from Gurcharan Singh. Same were taken into police possession vide separate memo. On personal search of Gursewak Singh, one .303 bore pistol along with three empty and one live cartridges was recovered. Regarding arms and ammunition, separate proceedings were initiated by ASI Hans Raj. 120 gold biscuits, each weighing 10 tolas, were recovered from the cloth bag tied around the waist of Gurcharan Singh. Gold biscuits were taken into police possession vide separate memo attested by the witnesses. Crl.Appeal No.1132-SB of 2001 3 Regarding recovery gold biscuits, separate proceedings were initiated by the custom officials. Indian currency notes of Rs.105/- along with driving licence were also recovered from Gursewak Singh. Currency notes and driving licence were taken into police possession vide separate memo attested by the witnesses. Ruqa recorded by SI Mal Singh was sent to the concerned police station, on the basis of which, formal FIR was recorded. Rough site plan with correct marginal notes was prepared. 15/16 empty cartridges were also recovered from the spot, which were taken into police possession vide separate memo. After completion of investigation, challan was presented in the Court. Accused was charged under Section 25 of the Arms, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 3 witnesses. PW1 ASI Hans Raj is the Investigating Officer. PW2 Jagan Nath, Clerk, Office of District Magistrate, Ferozepur, proved the sanction order (Ex.P6) to prosecute the accused. PW3 HC Shamsher Singh is one of the recovery witnesses. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that he was brought from Amritsar 3/4 days prior to the alleged occurrence by the police of Ferozepur and later on, was falsely implicated in this case. After hearing learned PP for the State, learned counsel for the appellant and from the perusal of evidence on the file, appellant was Crl.Appeal No.1132-SB of 2001 4 convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant after arguing for some time when failed to point out any infirmity or illegality in the impugned judgment, then stated that impugned judgment is not challenged on the point of conviction and requested to take lenient view as the appellant has already undergone 1 year, 3 months and 17 days out of actual sentence. Learned State counsel argued that .303 bore pistol along with three empty and one live cartridges was recovered from the appellant without licence. No explanation why appellant was carrying weapon without licence. No doubt, learned defence counsel for the appellant has not challenged the impugned judgment on the point of conviction but even then, I want to scrutinize the evidence as to whether recovery was effected as per story or not. PW1 ASI Hans Raj is the IO, whereas PW3 HC Shamsher Singh is the recovery witness. Both have stated that police party was holding nakabandi on the intervening night of 16/17.1.1994 in the area of Village Muthianwala near river Sutlej. At about 4.30 AM, appellant was noticed while coming from the side of Pakistan along with his co-accused Gurcharan Singh. Appellant was directed to stop but instead of stopping, he started firing at the police party. Cross firing continued for about 5 minutes. Then appellant along with his co-accused had surrendered before the police party. One .303 bore pistol along with three empty and one live cartridges Crl.Appeal No.1132-SB of 2001 5 (without licence) was recovered from the appellant, whereas one .38 bore revolver with six empty cartridges (without licence) was recovered from co- accused Gurcharan Singh. Weapon along with cartridges was produced in Court. No question was put to the prosecution witnesses that weapon was not the same or was not in working condition. After recovery, sketch of weapon was prepared and tallied with the weapon recovered in Court. Defence version of the appellant was that he was brought from Amritsar 3/4 days prior to the alleged occurrence by the police of Ferozepur and later on, was falsely implicated in this case. But in support of this contention, no evidence either documentary or oral. Along with weapon, 120 gold biscuits, each weighing 10 tolas, were recovered. If appellant was to be falsely implicated, then there was no idea to plant 120 gold biscuits. In view of the statements of police officials, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. No reason to differ. Admittedly, occurrence was on the intervening night of 16/17.1.1994 at about 4.30 AM. At that time, appellant was 32 years' old. He is the first offender and has already undergone 1 year, 8 months and 1 day. Keeping in view the circumstances of this case, I am of the opinion that ends of justice would be fully met if lenient view is taken. Appellant is directed to undergo imprisonment already undergone ( 1 year, 8 months and 1 day). Fine maintained. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. All the sentences awarded in FIR No.13 dated 17.1.1994 under Crl.Appeal No.1132-SB of 2001 6 Sections 307/34 IPC and 25 of the Arms Act and FIR No.14 dated 17.1.1994 under Section 25 of the Arms Act, PS Mallanwala, are ordered to run concurrently. 6.1.2011 ( JORA SINGH ) pk JUDGE