IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.233 of 1995 Judgment reserved on: 7.7.2009 Date of decision: 22.7.2009. State of H.P. ... Appellant -Versus- Karam Chand and another … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No For the appellant: Mr.R.K. Bawa, Advocate General with Mr.Vikas Rathore, Dy.A.G. For the respondent: Mr.Ajay Sharma, Advocate ____________________________________________________________ Deepak Gupta, J This appeal is directed against the judgment dated 2.4.1994 passed by the learned Sessions Judge, Kangra at Dharamshala, H.P. in sessions case No.35 of 1993/Sessions Trial No.40 of 1993, whereby he acquitted the accused of having committed offences punishable under Section 304 IPC read with Sections 25 & 27 of the Arms Act. The prosecution story, in brief, is that five young boys Ran Singh, Sunil Kumar, Kashmir Singh, Vijay Kumar and 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Kuljeet who are all residents of village Samirpur, Tehsil & District Kangra had gone to graze their herds of goats in Dati-kud forest on 17.3.1992 at about 10 am. They reached the forest at about 12 noon. After the goats were left in the jungle they went to the ‘Dera’ of the accused Angat Ram for having water. They were carrying their meals with them. Accused Karam Chand alone was present in the ‘Dera’. He is an employee of Angat Ram. Angat Ram was not present in the ‘Dera’. All the five boys partook their meals in the ‘Dera’ and thereafter left for the jungle where they had left the goats. The aforesaid facts are not denied by any body. According to the prosecution, thereafter accused Karam Chand followed the boys. He had gun in his hand. This gun belonged to his master Angat Ram. One of the boys Ran Singh told him that he should not aim the gun at any person since the same was loaded and may go off. Thereafter accused Karam Chand aimed the gun towards Kuljeet alias Munnu who was standing two meters away from Ran Singh and fired the gun. The gunshot hit the middle of the stomach of Kuljeet. Resultantly, Kuljeet fell down. He was carried to the ‘Dera’ where he died. Thereafter, accused Karam Chand left 3 the gun in the ‘Dera’ and went away. The other four boys returned to their home and reached there at 2.30 pm. Ran Singh gave information about the occurrence to the mother of deceased Kuljeet. Thereafter, the police was called and reached the village at about 11.30 pm. The statement of Ran Singh was recorded and case under Section 302 IPC read with Sections 25 & 27 of the Arms Act registered against the accused. Post mortem was carried out on the body of Kuljeet. PW-1 Dr.Mrs.Prem Lata who carried out the post mortem found a gunshot wound on the lower part of the chest. Death was stated to have occurred due to this wound. The accused Karam Chand was charged to stand trial for offence under Section 304 IPC and Section 25 of the Arms Act and accused Angat Ram was charged under Section 27 of the Arms Act. They pleaded not guilty and claimed trial. Ran Singh was examined as PW-2 and Vijay Kumar as PW-3. They are the alleged eye witnesses. Both of them have supported the prosecution version. PW-4 Ramesh Kumar is the Pradhan of Gram Panchayat Chakban Samirpur. He states that when he came to know about the death of Kuljeet he deputed the Up- 4 Pardhan to go to the spot and he himself informed the police. PW-5 Mehar Singh is the Up-Pardhan. PW-6 Karam Singh is the MHC who recorded the FIR Ext.PJ on the basis of the statement of Ran Singh Ext.PC. The case property was also deposited with this witness and he had sent the same to the Forensic Science Laboratory through PW-7 Madan Lal. PW-8 Pritam Chand is the Investigating Officer. The accused pleaded not guilty and accused Karam Chand took the plea that his master Angat Ram had gone to Ghaniara on the night before the incident took place to look after his ailing child. The accused was alone in the ‘Dera’. He had kept the gun loaded since there was a scare that leopards were roaming around in the said area. On the fateful day all the five boys Ran Singh, Sunil Kumar, Kashmir Singh, Vijay Kumar and Kuljeet came to the ‘Dera’. They were his friends. He provided goats’ milk to them with their meal. The boys had their meals which they had carried from their homes and started playing. The accused started driving the herds of goats/sheep towards the jungle. When he returned to the ‘Dera’ he found them playing with the gun and snatching the same from each other. He asked them not to play 5 with the gun and leave it alone. Suddenly, in the meanwhile, in the process of the gun being snatched the same went off and the gunshot hit the deceased. The accused thereafter immediately went to inform his master Angat Ram who has been arrayed as a co-accused. Angat Ram in his statement under Section 313 also admits the fact that he had kept the gun at the ‘Dera’ to scare away leopards. He was not in the ‘Dera’ when the incident happened. Accused Karam Chand informed him about the incident at about 5 p.m. and then he also returned to the ‘Dera’. The learned trial court acquitted the accused. Hence this appeal by the State. As far as the offence under Section 25 of the Arms Act is concerned, admittedly no sanction as required under Section 39 of the Arms Act has been proved on record and therefore the prosecution against the accused Karam Chand for having committed the offence under Section 25 of the Arms Act is totally illegal. In the absence of any sanction, the trial could not have been proceeded against him under the Arms Act and the same is vitiated on this short ground. Angat Ram has been charged only under Section 27 which prohibits the 6 use of a weapon for illegal purposes. The prosecution has failed to prove any violation of Section 27 whatsoever. As far as the case on merits is concerned, even as per the two alleged eye-witnesses accused Karam Chand had provided goats’ milk to them along with their meals. This clearly shows that the accused Karam Chand was not inimical to the deceased or the other boys accompanied him. Their version is that when they came out from the ‘Dera’ the accused Karam Chand followed them with a gun in his hand and pointed the gun at Ran Singh who objected to the same. Thereafter he aimed the gun at the deceased and fired the same. This version does not appear to be correct. The accused had no motive to shoot Kuljeet, the deceased. They were all on friendly terms and it cannot be believed that he would have purposely taken the gun and fired it so as to kill the deceased. The version given by the accused is more plausible. The boys were all young and it does appear that they started playing with the gun. Even if the version of the accused that he tried to stop the boys from playing with the gun is not accepted to be true then also the fact remains that in all probability all the boys, and may be the 7 accused also, started playing with the gun and during this process the same got accidentally fired. This view is a very plausible view and has been accepted by the learned trial Court. Since this view is a plausible and acceptable view, we see no reason to differ from the judgment of the learned trial Court. Another reason which casts a shadow of doubt on the prosecution version is that Karam Chand immediately after the incident left the ‘Dera’ and went to inform his master. If he had been the guilty party the other boys would have apprehended him and would not have let him go. There was no reason for Karam Chand to have gone to inform his master about the gun having gone off if actually he had committed the offence. There is also un-explained delay in lodging the FIR. According to the prosecution version the boys came home at 2.30 pm and immediately telephonic information was given to the police. This information would have been received by the police at the same time. However, according to the prosecution the information was received in the Police Station only at 5.05 p.m. when an entry in this regard was made in the daily diary. PW-8 Investigating Officer admits that immediately on receipt 8 of the information he left for the spot by a police vehicle. The distance between the two places is only 29 kms and could easily be covered in one hour. The body admittedly was lying in the ‘Dera’ of the accused and the statement of PW Ran Singh was recorded at about 11.15 p.m. There is no explanation as to why the police took more than 8 hours to record the statement of PW-2. Therefore, the only inference which can be drawn is that the statement Ext.PC has been recorded after due deliberations. Keeping in view all aspects of the matter, we are of the considered view that the judgment has been passed by the learned trial Court after proper appreciation of facts and it calls for no interference in this appeal. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. July 22, 2009 ( Surinder Singh ), J. PV