Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1972 of 2001 Old No. 2189 of 1996 Dated of Decision: 09.04.2010 Swaroop Singh and another …Appellants Versus State of Uttarakhand …Respondent Present: Mr. J.S. Virk, learned counsel for the appellants. Mr. Nandan Arya, learned A.G.A. for the respondent. Hon’ble Nirmal Yadav, J. Present appeal is directed against the judgment and order dated 05.12.1996 passed by IInd Additional Sessions Judge, Nainital in Sessions Trial No.21 of 1992 whereby the accused appellants were tried for the offences punishable under section 307 read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for five years and appellant no.1 (in Sessions Trial No.22/1992) & appellant no.2 (in sessions trial no.23/1992) were convicted under section 25 Arms Act and were sentenced for two years of rigorous imprisonment. All the sentences have been ordered to run concurrently. Brief facts as per the prosecution case are that on 18.03.1991 constable Chanchal Singh, S.I. Om Prakash, Incharge Inspector Randhir Singh, S.I. Surendra Singh and constable Shivram Singh proceeded from Police Station in Truck No.2143 driven by constable Kripal Singh for patrol duty. While patrolling, Police party reached village Dohari, they received a secret information about two Sikh Gentlemen having firearms and posing to be terrorist, are likely to reach that area. 2 Accordingly, Public witnesses, Balendra Prasad, Ramnath, Saudhagar and Sudarshan were joined in the police party. The Police party concealed themselves in the Arhar field of Ishukha. At about 12.30 P.M. two young Sikh gentlemen came from the side of village Bidaura. When they reached near the field of Ishukhan, the secret informer indicated towards them. When police asked them to stop, both of them took out countrymade pistol and fired at the police party. The police party encircled and apprehended both of them. On enquiry, they disclosed their names as Swaroop Singh S/o Preetam Singh resident of village Pindari, police station Sitarganj and Gurdayal Singh S/o Deewan Singh resident of Naganna police station Nanakmatta. On search, Swaroop Singh was found having one countrymade pistol, one empty cartridge and two live cartridges, while Gurdayal Singh was found having one country made pistol, one empty cartridge and two live cartridges. The countrymade pistols and cartridges were sealed and made into the parcel separately. The recovered articles were taken into possession vide memo Ex.Ka-1. From Swaroop Singh, countrymade pistol Ex-1, Empty cartridge Ex-2 and live cartridges Ex-3 & 4 were recovered while from Gurdayal Singh, countrymade pistol Ex-5, empty cartridge Ex-6 and live cartridges Ex. 7 & 8 were recovered. The accused were arrested and recovered articles were deposited in the police station. On completion of investigation, challan was presented and accused were charge sheeted under section 307 read with 34 I.P.C. and under section 25 of the Arms Act. The prosecution in order to prove its case, produced constable Chanchal Singh (PW1) and S.I. Om Prakash (PW2). The accused were examined under section 313 Cr.P.C. and they denied all the allegations of prosecution and claimed innocence 3 and false implication. According to them, they were arrested from their houses on 17.03.1991. Heard Sri J.S. Virk, learned counsel for the appellants and learned A.G.A. for the State/respondent and perused the material available on record. The main thrust of argument by learned counsel for the appellant is that according to the investigation officer he had joined Balendra Prasad, Ramnath, Saudhagar and Sudarshan, Public witnesses in the raiding party after receipt of secret information, but none of these witnesses have been produced in the witness box. It is argued that no independent person from the public appears to have been joined in the raiding party, their names were merely mentioned by the investigating officer. It is argued that even if they were joined, they have not come forward to support the prosecution, which makes the case of the prosecution rightly doubtful. He further argued that Trial Court should not have relied upon the testimony of police officers only to base the conviction of the accused. He also pointed out that testimonies of two police officers are discrepant and contradictory each other. PW 2 Om Prakash, Investigating Officer stated that neither he nor Chanchal Singh had recovered the weapons from the accused persons, whereas Constable Chanchal Singh stated that search of Gurdayal Singh accused was conducted by S.H.O. himself and he had taken the countrymade pistol from his possession, whereas search of Swaroop Singh was conducted by Om Prakash (PW2) and he had taken into the possession weapon recovered from him. Learned counsel for the appellant argued that admittedly, no injury was caused to any member of the police 4 party, nor there is any independent evidence to prove that accused persons had attempted to murder the members of the police party. It is also pointed out that no member of police party received any injury by the alleged firing. The next submission of the learned counsel for the appellants is that there is no evidence to support the prosecution case that countrymade pistols which were recovered from the appellants were in working condition and cartridges which are allegedly found from the appellants were live cartridges. Neither Constable Chanchal Singh nor S.I. Om Prakash has stated so. The prosecution himself has not placed any report from Ballistic Expert to establish that the countrymade firearms were in working condition. Therefore, it can not be presumed that cartridges were live and weapons allegedly recovered from possession of the accused appellants were in working condition. In the absence of such evidence, the conviction of the appellants can not be sustained. In his support, learned counsel for the appellants referred to the judgments of the Hon’ble Apex Court in case of Jaspal Singh Vs. State of Punjab reported in [1999 Judicial Criminal Cases (SC) 137] and in the case of State of Punjab Vs. Jagga Singh reported in [1999 (Judicial Criminal Cases (SC) 128]. On the other hand, learned A.G.A. argued contrary to the learned counsel for the appellants and submitted that there is nothing on record to prove that both the police officers were having any enmity with the accused or they had any reason to falsely implicate them. He further argued that Public witnesses were joined in the raiding party but they did not appear in the witness box. Therefore, non-appearance would not be fatal to the prosecution case. The conviction can be based 5 on the testimony of the police officers if their statements are consistent and reliable. It is true that conviction can be based on the testimony of police officers, if they are reliable and worthy of credence. Some times, it can be possible that persons of public witness can not be secured and police have conducted raid without public witnesses. In this case, according to the investigating officer he had joined four persons in raiding party. None of them have supported the prosecution case. The four witnesses were cited by the prosecution, however, none of them came forward to the support to the prosecution case. Sufficient opportunities were given to the prosecution but the prosecution failed to produce them. Testimonies of two witnesses, who are police officers, are not corroborated by any independent evidence. It is well known that during the year 1991 it was period of terrorism and police officers were interested in apprehending the persons belonging to a particular community. Both the accused have categorically pleaded that they were arrested from their houses. Moreover, there is no evidence of any expert that the firearms allegedly recovered from the possession of the accused appellants, were tested in a laboratory or they were sent to Ballistic Expert. Thus there is no evidence that firearms were in working condition and found fit for use. There is no report from Forensic Science Laboratory with regard to the firearms being in working conditions and the cartridges allegedly recovered from the possession of the accused were live cartridges. Thus, in the absence of any such evidence, it is not proved that appellants were found in possession of firearms which could be used in firing and the four cartridges were the live cartridges. 6 In the absence of any cogent and independent evidence, the conviction of the appellants under section 307 read with section 34 I.P.C. and under section 25 Arms Act can not be upheld. I therefore, allow this appeal, set aside the judgment and order dated 05.12.1996 passed by Additional Sessions Judge, Nainital and acquit the appellants. Appeal is allowed and both accused appellants are acquitted. The accused appellants are on bail, their bail bonds are cancelled and their sureties are discharged. As the appellants have not claimed the weapons allegedly recovered from their possessions, the same will be disposed of after expiry of the period of appeal. (Nirmal Yadav, J.) JKJ 09.04.2010