Present:- Mr. Paras Talwar Advocate Vs. State of Punjab - Court Judgment

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Appeal No.S-2240-SB of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Appeal No.S-2240-SB of 2013 Date of Decision: 24.07.2014 Jaspreet Singh ....Appellant Versus State of Punjab ....Respondent Crl.

Appeal No.S-1452-SB of 2012 Manpreet Singh ....Appellant Versus State of Punjab ....Respondent BEFORE :- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.Paras Talwar, Advocate for the appellant.

Mr.D.S.Virk, A.A.G., Punjab for the respondent-State.

***** DAYA CHAUDHARY, J.

By this common judgment, both the appeals i.e CRA-S No.2240-SB of 2013 filed by Jaspreet Singh and CRA-S No.1452-SB of 2012 filed by Manpreet Singh shall be disposed of as the same have arisen out of the same judgment of the trial Court.

However, for the sake of convenience, the facts are being derived from CRA-S No.2240-SB of 2013.

Accused-appellants, namely, Jaspreet Singh and Manpreet Singh faced trial in case FIR No.247 dated 19.11.2006 registered under Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 2 Sections 399/402 IPC and Sections 25/54/59 of the Arms Act at Police Station Sadar Nawanshahr and convicted by the trial Court vide judgment dated 17.04.2012 and were sentenced to undergo rigorous imprisonment for a period of five years with fine of ` 5,000/- with default clause under Section 399 IPC ; further rigorous imprisonment for a period of three years with fine of ` 5,000/- with default clause under Section 402 IPC and rigorous imprisonment for a period of two years with fine of ` 1,000/- with default clause under Section 25 of the Arms Act.

Briefly, the facts of the prosecution case are that on 19.11.2006, Sub Inspector Rakesh Kumar along with other police officials was on patrol duty.

While reaching near Nijjar Farm, Banga Road, Nawanshahr, he received a secret information that Manjit Singh alias Kala , Jaspreet Singh alias Jassa, Manpreet Singh, Paramjit Singh and Vicky are planning to commit dacoity and they are armed with pistol and other deadly weapons and are present near railway crossing situated at Nawanshahr- Kariha road along side the fields.

The police party reached at the spot, where, five persons were found talking with each other and were apprehended.

Said persons disclosed their names as Manjit Singh, Jaspreet Singh, Manpreet Singh, Paramjit Singh and Bikramjit Singh and on their personal search, one revolver 32 bore along with two cartridges were recovered from accused Manjit Singh ; one live cartridge of 315 bore and three empty shells of 32 bore were recovered from Bikramjit Singh ; one cartridge of 315 bore were recovered from Paramjit Singh ; one scooter bearing registration No.PB-32-9938 and another scooter bearing No.PAV-1191 without registration documents were taken into possession vide separate recovery memo.

Upon secret information, a ruqa was sent to Police Station, on the basis of which, a formal FIR was registered.

Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 3 Rough sketc.of revolvers was prepared and after preparation of the parcels, the revolvers were sealed with seal bearing impression `RK’.

Rough site plan of the place of occurrence was also prepared.

Statements of the witnesses were recorded and the accused were arrested on completion of necessary formalities.

The challan against the accused was presented in the Court and thereafter, the case was committed to the Court of Sessions for trial.

The accused were charge sheeted for offence under Sections 399/402 IPC and subsequently charge under Section 25 of the Arms Act was also added to which they pleaded not guilty and claimed trial.

The accused, namely, Manjit Singh, Paramjit Singh and Bikramjit Singh were declared proclaimed offender and the remaining accused, namely, Manpreet Singh and Jaspreet Singh faced trial.

In order to prove its case, the prosecution examined PW1- Inspector Rakesh Kumar, PW2-SI Gurmukh Singh, PW3-Jasbir Singh, PW4-Inspector Prem Kumar, PW5-HC Mukhtiar Singh, PW6-Bimla Devi and PW7-Surinder Mohan.

The statements of accused under Section 313 Cr.P.C were recorded, wherein, they claimed false implication.

No evidence in defence was led by the appellant.

On appreciation of evidence and after hearing counsel for the accused as well as public prosecutor, both the accused were found guilty and they were convicted by the trial Court for offence under Sections 399/402 IPC and under Section 25 of the Arms Act vide judgment dated 17.04.2012 and were sentenced as mentioned herein above.

Aggrieved by the said judgment of the trial Court, the accused, Jaspreet Singh and Manpreet Singh have filed Criminal Appeal No.S- 2240-SB of 2013 and Criminal Appeal No.S-1452-SB of 2012.

Learned counsel for the appellants has challenged the Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 4 judgment of conviction and order of sentence on the ground that the appellants have falsely been implicated in the case, whereas, they were not involved in the said offences.

Initially, the charges were famed under Sections 399/402 IPC but later on, the offence under Section 25 of the Arms Act was added.

Learned counsel further submits that the alleged place of occurrence was a busy place and nothing was heard by the police as has come in the statement of the prosecution witnesses.

He also submits that the police officials were in uniform and the place of occurrence was closer to railway line, where, there were so many persons.

It was not practically possible to hear anything at such a busy and crowded place.

Nothing has come in the evidence as to whether any efforts were made by the accused to run after seeing the police party.

Even no weapon was used when the accused were apprehended.

It is also the argument of learned counsel for the appellants that no independent witness was joined by the police party whereas it has been stated in the statement of PW1-Inspector Rakesh Kumar that the place of occurrence was a thoroughfare.

Even as per rough site plan (mark-A).the appellants were apprehended and recovery was effected from them while standing at Point-A, which was visible from all sides like railway line, Nawanshahr and there was one kacha rasta near Point-A and also it was a religious place.

Section 25 of the Arms Act has been added later on, whereas, the recovery of .32 bore revolver along with two cartridges was made from Dub of co-accused Manjit Singh alias Kala, who was declared as proclaimed offender and nothing was recovered from the present appellants.

Learned counsel also submits that a false case was planted upon the appellants by the police and the appellants are having no criminal background.

Learned counsel for the appellants has relied upon the judgment of Hon’ble the Apex Court in Chaturi Yadav and others vs Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 5 State of Bihar 1979(3) SCC430 judgments of this Court in cases State of Haryana vs Randhir Singh @ Dheera and others passed in Criminal Revision No.674 of 1999, decided on 19.02.2009, Kuldeep Singh vs State of Punjab 2011 Criminal Law Journal 0488 as well as Rajesh and others vs State of Haryana 2010(4) RCR (Criminal) 928 in support of his contentions.

Learned counsel appearing on behalf of respondent-State submits that the judgment of the trial Court is well reasoned and the same is based on proper appreciation of evidence.

Hence, no interference is required.

Heard the arguments of learned counsel for the parties and have also perused the original record of the trial Court available in the Court.

Admittedly, the accused-appellants were apprehended on the basis of secret information and the place of occurrence was closer to railway line and also a religious place was close by.

As per allegations, the accused-appellants along with other co-accused were planning to committ robbery and they were over heard by the members of the raiding party.

On perusal of statements of witnesses, it is clear that the place of occurrence was a busy place, where, number of persons were seen passing by.

It has also been proved on record from the statement of PWs that the police persons were in uniform on that day and the place of occurrence was only 01 km.

from the Village and still no independent witness was joined at the time of interception of the accused.

PW-3 Head Constable Jasbir Singh has stated in the cross- examination that the religious place shown in the site plan was frequently visited by the people at large.

It is also mentioned that the place of occurrence was a busy place and the accused were visible from other Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 6 sides as well.

He has also stated in his statement that no independent witness or un-official witness was tried to join by the police.

It was also stated by him that he cannot tell the time of arrival and departure from the place of occurrence.

He has also admitted that no seal impressions were prepared in his presence.

Similarly, PW-1 Inspector Rakesh Kumar has stated that he has not recorded the statement of owner of the licensee revolver to verify the fact if he has registered any case of theft.

Even the ownership of the scooter was not verified and no statement of owner of the scooter was recorded by the Investigating Officer.

PW-4 Inspector Prem Kumar has stated in the cross- examination that neither he contacted the owner of the weapon nor received any record of the said weapon during investigation either from the Office of Deputy Commissioner or any other concerned department.

It has also been admitted that there was no specific mark or chit affixed on the weapon.

PW-6 Smt.

Bimla Devi, who brought the record regarding prosecution sanction, being Reader to Deputy Commissioner, SBS Nagar, has stated in the cross-examination that the name of Jasbir Singh @ Jassa was mentioned with hand but there were no signatures verifying the same after writing his name.

It has also been mentioned that in the sanction letter dated 16.03.2007, the year 2007 was mentioned after cutting of year 2000.

PW-7 Surinder Mohan, who was working as Junior Assistant in DTO Office, Nawanshahr, brought the record of registration of scooter and verified that the Scooter bearing registration No.PB-32-9938, registered in the name of one Nirmal Singh.

In cross-examination, he has stated that no entry of the register was made under his hand and he had no personal knowledge regarding ownership of the vehicle.

It has also been admitted that he had Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 7 not seen the registration certificate of the vehicle and even he denied his statement recorded before the police under Section 161 Cr.P.C The trial Court has held the accused-appellants guilty for offence under Sections 399/402 IPC.

There is nothing on record to show that the appellants were assembled for the purpose of committing dacoity or they made any preparation for committing the same.

On perusal of evidence of the prosecution only, it has been held by the trial Court that the accused persons were found sitting nearby railway line which was closer to religious place and some of them were armed with weapons while some of them were having cartridges.

It has not been proved from the evidence available on record that they were sitting there for committing dacoity or making preparation to accomplish the same.

It is difficult to believe that the appellants would assemble at such a place of thoroughfare with an intention to commit dacoity even when the police officials were also present there in uniform.

It has also not been proved from the statements of PWs that any efforts were made to join any independent person at the time of conducting raid.

Mere presence of some persons with some weapons at a public place does not, by itself, is sufficient to establish that they had assembled there for making preparation to commit dacoity.

This view has been taken by this Court in the appeal filed by State of Haryana in Randhir Singh’s case (supra).wherein, the judgments of Hon’ble the Apex Court in Chaturi Yadav’s case: Gholtu Modi etc.Vs State of Bihar 1986 Crl.

LJ1031and Brijlal Mandal and others vs State of Bihar 1978 CLJ877have been relied upon.

In Chaturi Yadav’s case (supra).the Hon’ble Apex Court has held that merely showing that eight persons were found in the school premises, which was closer to market during day time and some of them Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 8 were armed with guns and cartridges cannot be presumed that they were assembled for the purpose of committing dacoity or making preparation to accomplish the same.

The observation made in the said judgment is reproduced as under :- “4.

The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m.and could give no explanation for their presence at that odd hour of the night.

Mr.MiSr.appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same.

We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail.

The evidence led by the prosecution merely shows that eight persons were found in the school premises.

Some of them were armed with guns,some had cartridges and others ran away.

The mere fact that these persons were found at 1 a.m.does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object.

The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk.

It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being dearly inadmissible has to be excluded from consideration.

In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants.

The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated.

In these circumstances, therefore, we are Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 9 unable to sustain the judgment of the High Court.”

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Similarly, in another judgment of Hon’ble the Apex Court in Suleman vs State of Delhi through Secretary 1999(2) RCR (Crl.) 377, it has been held as under :- "4.

To prove why the five accused had assembled at Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of P.W.2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused.

He was accompanied at that time by ASI - Bhagat Ram but the prosecution did not examine ASI -Bhagat Ram as a witness.

P.W.2-Head Constable Chand Singh in his examination- in- chief did not depose anything about the conversation, he was declared hostile and permitted to be cross-examined by the learned public prosecutor.

In cross examination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump.

According to this witness, he had remained near this Dharamshala for about 15 minutes.

His further cross-examination on behalf of the accused discloses that when he had gone near the Dharmashala, it was dark as there was no light either inside or nearby.

Dharamshala consisted of only one room and it had only one door and no window.

He had stood outside that room and a little away from the door.

He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night.

He had not narrated what they had spoken or discussed.

It is also doubtful that they were speaking so loudly that their conversation could be heard outside.

It is also surprising as to how he could have reported to S.I.- Om Prakash that two of them had pistols and remaining three had knives.

As the evidence discloses, the weapons were kept concealed on heir persons and there was complete darkness inside this room.

P.W.2 had not even gone near the door.

This would clearly indicate that P.W.2 was not telling the truth when he stated that he had heard the accused talking Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 10 about looting a petrol pump.

It is, therefore, not possible to sustain the conviction of the appellants under Sections 399 and 402 IPC.

Their conviction under Sections 399 and 402 IPC will have to be set aside.”

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5.

But as regards possession of arMs.the evidence of all the three witnesses is consistent.

A revolver was found from Sadhu Ram, a pistol from Suleman and knives from the remaining three.

The revolver carried by Sadhu Ram was found loaded with five live cartridges and the pistol of Suleman was found loaded with one live carteidge.

The report of the Central Forensic Science Laboratory shows that the revolver was in working condition and all the five cartridges were live cartridges.

The pistol was not in working order in the sense that firing mechanism was found defective.The cartridge found from it was a live cartridge.

Live cartridge is an explosive within the meaning of Section 5 of the TADA Act.

Therefore, even if evidence regarding possession of pistol by Suleman is ignored, his conviction under Section 5 can be sustained.

We see no reason to doubt the evidence of PWs.

2, 3 and 6 regarding their having apprehended the appellants and seized from them the fire arms."

In the present case also, the appellants have been shown to be armed with weapons, cartridges and making preparation for committing dacoity.

Although, the requirement of independent witness may not be based upon rule of law but it is based upon rule of prudence.

The raiding party was having sufficient opportunity to join an independent witness but the same was not done.

The statements of prosecution witnesses are full of material contradictions which clearly shows that the prosecution has failed to prove its case beyond reasonable doubt and the benefit of doubt goes in favour of appellants.

For the reasons mentioned above, both the appeal bearing Criminal Appeal No.S-2240-SB of 2013 filed by Jaspreet Singh and Criminal Appeal No.S-1452-SB of 2012 filed by Manpreet Singh are Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document Crl.

Appeal No.S-2240-SB of 2013 11 allowed and the judgment of conviction and order of sentence dated 17.04.2012 passed by Additional Sessions Judge, Shaheed Bhagat Singh Nagar are set aside and accused-appellants, namely, Jaspreet Singh and Manpreet Singh are acquitted of the charges framed against them.

The appellants are in custody and be released forthwith, if not required in any other case.

(DAYA CHAUDHARY) 24.07.2014 JUDGE gurpreet Kaur Gurpreet 2014.08.01 16:51 I attest to the accuracy and integrity of this document