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2000 DIGILAW 132 (HP)

STATE OF H. P. v. SHAHBAZ KHAN

2000-06-02

C.K.THAKKER

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JUDGMENT C.K. Thakker, C.J. (Oral) :- 1. This appeal is filed by the state against an order of acquittal recorded by Additional Chief Judicial Magistrate, Sirmaur District at Paonta Sahib in Criminal Challan No. 147/3 of 1994 dated June 4, 1996. 2. The case of the prosecution was that PW - 5 Station House Officer Hardesh Bisht, was investigating a Criminal case being FIR No. 20 of 1993 instituted under the provisions of Section 3 and 4 of Terrorist and Disruptive Activities (prevention) Act, 1987 read with under Section 25 of the Arms Act and Section 307 of the Indian Penal Code against Bhpinder Singh and Tejinder Singh. During interrogation, it was revealed that the accused were supplied arms and ammunitions by Shahbaz Khan (respondent -accused in the present appeal). Said Shahbaz Khan belonged to Village Kailashpur, District Saharanpur, (U.P.) and was helping terrorists and their associates. He was tenant of one Akbar Ahmed of Village Matralion, Tehsil Paonta Sahib. The Investigating Officer was also informed that if a search would be carried out immediately, lot of arms and ammunitions could be recovered from the house of Shahbaz Khan. On apprehension of arms and ammunitions being removed from the house by the accused, immediate raid was carried out by SHO Hardesh Bisht, in which PW-2 Harbhajan Singh, PW-1 Karnail Singh and PW-3 Head Constable Sohan Singh accompanied. During the raid, arms and ammunitions were found from a potli (Cloth parcel), which contained 30 live cartridges of AK-47 rifle. 17 cartridges of 9 mm pistal and 3 live cartridges of 12 bore gun. Possession of the said arms and ammunitions was taken sealed. A Ruka was prepared on the spot and it was sent to Police Station. Paonta Sahib. FIR was registered, investigation was completed and charge was framed against the accused. 3. The case of the accused was of denial. In further statement under Section 313 of the Code of Criminal Procedure, 1973, the accused stated that he was innocent. That on 5th January, 1993, he was illegally arrested by police authorities against which he had filed a petition against the police authorities in the High Court. He was, therefore, falsely implicated by the authorities in the instant case. 4. In support of such defence, the accused examined three defence witnesses; DW-1 Akbar Ahmed, DW-2 Tajinder Singh and DW-3 Sultan Khan. He was, therefore, falsely implicated by the authorities in the instant case. 4. In support of such defence, the accused examined three defence witnesses; DW-1 Akbar Ahmed, DW-2 Tajinder Singh and DW-3 Sultan Khan. So far as DW-2, an employee of this Court is concerned, he merely proved the factum of filling of Habeas Corpus petition in this Court. DW-1 Akbar Ahmed and DW-3 Sultan Khan, however, supported the case of the accused and stated that the accused was innocent and he was falsely implicated in the above incident. 5. At the trial, the prosecution examined six witnesses, including PW-1 Karnail Singh and PW-2 Harbhajan Singh, independent witnesses, but neither of them supported the prosecution and both were declared hostile by the learned Public Prosecutor. PW-3 Head Constable Sohan Singh and PW-5 Investigating Officer Hardesh Bisht, no doubt, supported the prosecution, but considering the facts and surrounding circumstances, including the evidence of PW-1 Karnail Singh and PW-2 Harbhajan Singh, who were declared hostile and also evidence of DW-1 Akbar Ahmed and DW-3 Sultan Khan, the learned Magistrate was of the view that it was not safe to rely on testimony of police witnesses alone and that it was a case of grant of benefit of doubt. Accordingly benefit was granted to the accused and he was acquitted. The said order is challenged in the present appeal by the state. 6. Mr. Chauhan, learned Deputy Advocate General contended that even from the evidence of PW-1 Karnail Singh and PW-2 Harbhajan Singh, it was established that both of them accompanied the raiding party. No doubt, they had deposed that the arms land ammunitions were not recovered from the house of the accused, but then there was evidence of PW-3 Head Constable Sohan Lal and PW-5 Investigating Officer Hardesh Bisht. In the. submission of the learned Deputy Advocate General, the law is well settled that if the Court finds truth in the evidence of police witnesses, such evidence is admissible and can be made basis for recording conviction against the accused. 7. In that connection reliance was placed on a decision of the Honble Supreme Court in Kalpnath Rai Vs. State (Through CBI). (1997) 8 SCC 732, and in particular paragraphs 86 and 88 of the reported judgment. It was submitted that there was no reason for the police witnesses to depose against the accused falsely as there was no enmity. 7. In that connection reliance was placed on a decision of the Honble Supreme Court in Kalpnath Rai Vs. State (Through CBI). (1997) 8 SCC 732, and in particular paragraphs 86 and 88 of the reported judgment. It was submitted that there was no reason for the police witnesses to depose against the accused falsely as there was no enmity. He, therefore, submitted that the learned Magistrate was wrong in acquitting the accused and the said order deserves to be quashed and set aside. 8. Mr. Gupta, learned counsel for the respondent-accused, on the other hand, supported the conclusions arrived at and reasons recorded by the learned Magistrate. He submitted that two independent witnesses did not support the case of the prosecution. Though they were cross-examined by the learned Public Prosecutor at length, nothing incriminating could come out from such cross-examination as to why they did not support the prosecution. According to him, both the witnesses stated whole truth before the court in their sworn testimony and there was no reason to ignore their evidence. The matter, however, did not end there. According to the learned counsel, even if it is assumed that both the police witnesses fully supported the allegations of the prosecution, their evidence was also not reliable and did not inspire confidence. Both of them did not state anything regarding arrest or detention of the accused7 on January 5,1993 or thereafter nor regarding filing of a writ petition in this Court. Again, there was no reason for DW-1 Akbar Ahmed and DW-3 Sultan Khan to oblige the accused by falsely supporting him. DW-1 Akbar Ahmed was landlord of the accused but that ground alone would not be sufficient to infer that he would support the respondent. Finally, when acquittal was recorded by the trial Court, ordinarily, this Court would not set aside that order on the ground that the other view was possible. For that, reliance was placed on two decisions of the Honble Supreme Court in Jai Pal and another Vs. State of U.T. Chandigarh. (1999) 1 SCC 213 and Preiti Dass Vs. Income Tax Officer. (1999) 5 SCC 241. 9. Having heard the learned counsel for the parties, in my opinion, an order of acquittal recorded by the trial Court cannot be termed as illegal, unlawful or otherwise unreasonable, which requires to be set aside by this Court. State of U.T. Chandigarh. (1999) 1 SCC 213 and Preiti Dass Vs. Income Tax Officer. (1999) 5 SCC 241. 9. Having heard the learned counsel for the parties, in my opinion, an order of acquittal recorded by the trial Court cannot be termed as illegal, unlawful or otherwise unreasonable, which requires to be set aside by this Court. So far as PW-1 Karnail Singh and PW-2 Harbhajan Singh are; concerned, obviously, they were independent witnesses. They, however, did not support the case of the prosecution and were declared hostile at the request by the learned Public Prosecutor. From lengthy cross-examination of those witnesses, nothing could be extracted to show why they supported the accused and deposed against prosecution. Similarly, the police witnesses, did not state anything about the arrest or detention of the accused on or after 5th January, 1993 and filing of a petition for Habeas Corpus in this Court. The fact of filing of Habeas Corpus petition, however, has come on record by examining a clerk of this court and by placing a copy of such Criminal Writ Petition No. 3 of 1993 on record. It is also pertinent to note that the present FIR (FIR No. 21 of 1993) was filed against the accused on 13th January, 1993, that is, the day on which the Habeas Corpus petition was filed in this Court. It is on record that raid was carried out at about 10.30 p.m. on January 13,1993. Obviously, a Habeas Corpus petition must have been instituted at day time, that is, during office hours. It, therefore, cannot be said that as FIR No. 21 of 1993 was filed against the accused by the police authorities, as a counter-blast, the accused had filed a Habeas Corpus petition in this Court. 10. If it is so, it can be said that the accused had some grievance, right or wrong, against the police authorities, even before filing of FIR No. 21 of J 1993. In that case, the defence of the accused cannot be said to be totally ill founded or misconceived. If, in the light of these facts, the learned Magistrate granted benefit of doubt to the accused and did not think it fit to convict him, it cannot be said that such a view could not have been taken or the reasons recorded can be said to be unlawful or illegal. 11. If, in the light of these facts, the learned Magistrate granted benefit of doubt to the accused and did not think it fit to convict him, it cannot be said that such a view could not have been taken or the reasons recorded can be said to be unlawful or illegal. 11. For the foregoing reasons, in my opinion, there is no substance in the appeal filed by the State and the order of acquittal deserves to be confirmed. It is true that the allegations against the accused are of a serious nature but considering the evidence on record and the grounds weighed with the trial Court in acquitting him, this Court has no option but to uphold the said order and accordingly the order of acquittal hereby confirmed. The appeal filed by the State is, hereby dismissed. Bailable warrant issued against the respondent-accused shall stand discharged.