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2001 DIGILAW 4 (HP)

JAI RAM ALIAS JAIMAL SINGH v. STATE OF H. P.

2001-01-04

R.L.KHURANA

body2001
JUDGMENT M.R. Verma, J:- This revision petition is directed against the order dated 30.10.1999 passed by the learned Sub Judge (4), Shimla in an application under Order 22 Rule 2 of the Code of Civil Procedure (here-after referred to as the Code") in Civil Suit No:222/1 of 99/98 whereby the said application has been allowed. 2. Brief facts leading to the present controversy are that respondents No.l to 4 and one Parwati Devi, since deceased, (here-after referred to as the plaintiffs") have instituted a suit for declaration with consequential relief of injunction against the petitioner and proforma respondent (here-after referred to as the defendants) which is pending disposal. During the pendency of the-suit, plaintiff smt. Parwati Devi died and an application dated 21.7.1999 was moved by the surviving plaintiffs for bringing on record her legal representatives. It is averred in the application, that the right to sue survives in favour of the surviving plaintiffs who are her legal heirs and are already on record. The application was contested by the defendants. In their reply they raised preliminary objections that the application is not maintainable as the suit has abated, that the requisite particulars have not been furnished and the application is not supported even by an affidavit and that the application is hopelessly time barred. On merits, the status of surviving plaintiffs as the legal representatives of the deceased plaintiff has been denied and it is claimed that the surviving plaintiffs are fully aware of the names of the legal heirs of the deceased plaintiff and they have deliberately omitted to bring them on record. The learned trial Judge, after hearing the parties but without framing any issue or recording any evidence, concluded that the surviving plaintiffs are the legal representatives/heirs of the deceased plaintiff; therefore, right to sue survives in their favour and accordingly allowed the application. 3. Feeling aggrieved, one of the defendants, namely, Rohit Madan has preferred the present petition wherein the other defendant has been arrayed as proforma respondent. 4. I have heard the learned counsel for the parties and have gone through the material on record. 5. It is admitted case of the plaintiffs that consequent upon the death of plaintiff No.l the cause to sue survives to them because they are her legal representatives and are alreay on record as plaintiffs. 4. I have heard the learned counsel for the parties and have gone through the material on record. 5. It is admitted case of the plaintiffs that consequent upon the death of plaintiff No.l the cause to sue survives to them because they are her legal representatives and are alreay on record as plaintiffs. The status of the survivpresent at the spot at the relevant time and that he has been falsely implicated. In answer to question No. 17, the accused has stated in the following terms:-"I am innocent. I have falsely been implicated in this case. I am an ex-serviceman and served in army for 24 years. I do not possess any gun. I did not make any statement before the police or witnesses regarding hiding of the gun at any point of time. The police forced me to sign the blank papers by using third degree method. The recovery is planted against me. The people of the area are so scared from Lucky alias Sanjiv to depose against him even the true facts. Lucky is involved in many criminal cases as he is very strong headed person. I have no enmity with lucky. After my arrest in the instant false case, my son has left the house due to the fear of Lucky. I retired from army about 15 years back and during this period no quarrel ever took place with me, with anybody in the village. I am poor agriculturist and on that day I was busy in sowing paddy crop and I am not at all involved in this crime" 7. One witness was examined by the accused in his defence to show that at the relevant time he was busy sowing his land in village Tatwani. 8. The learned Sessions Judge on consideration of the evidence led before him though convicted and sentenced the accused for the offence under Section 307, Indian Penal Code, acquitted him of the offence under Section 25, Arms Act, 1959, as aforesaid. 9. Be it stated that the acquittal of the accused of the offence under Section 25, Arms Act, 1959, as recorded by the learned Sessions Judge, has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal of the accused has, thus, become final. 10. 9. Be it stated that the acquittal of the accused of the offence under Section 25, Arms Act, 1959, as recorded by the learned Sessions Judge, has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal of the accused has, thus, become final. 10. The accused was charged by the learned Sessions Judge for the offences under Section 307, Indian Penal Code, and under Section 25, Arms Act, 1959 on 20.12.1998 as under:- "I, Aruna Kapoor, Sessions Judge, Kangra at Dharamsala, do hereby charge accused Jai Ram alias Jaimal s/o Sh. Rehlu Ram, r/o Salbana, PS Shahpur, District Kangra, as under:- Firstly - That on 21.07.1998 at about 6 A.M. at Kholi Khad (Jheer-balla) you did an act, to wit, fired a gun shot with gun S.J3-M.L. with such intention and under such circumstances that, if, by that act, you had caused the death of Sanjeev Kumar alias Lucky s/o Sh. Uttam Singh, you would have been guilty of murder and that you thereby caused hurt to said Sanjeev Kumar and thereby committed an offence punishable under Section 307IPC and within the cognizance of this court. Lastly - That on the aforesaid date, time and place you have used the gun No.263-05-1968 unlawfully and you were also found in possession of the aforesaid gun without valid licence and thereby committed an offence punishable under Section 25 of the Indian Arms Act and within the cognizance of this court. And I hereby direct that you be tried by this court on the said charges." 11. The learned counsel for the accused at the very out set has contended that as per the prosecution case the accused is said to have attempted to commit murder of PW 3 Sanjeev Kumar by firing a shot from SBML Gun No.263-05-1968 (Ex.P3). Possession of the said gun was, therefore, a fact in issue which the prosecution was required to prove in order to establish the charge for the offence under Section 307, Indian Penal Code. It was contended that since such issue as to possession of the gun has already been decided when the accused was acquitted of the offence under Section 25, Arms Act, 1959, such acquittal necessarily implies that the accused did not possess the gun. Such findings have become final and binding on the prosecution. It was contended that since such issue as to possession of the gun has already been decided when the accused was acquitted of the offence under Section 25, Arms Act, 1959, such acquittal necessarily implies that the accused did not possess the gun. Such findings have become final and binding on the prosecution. Once the accused is held to be not in possession of the gun Ex.P3, he cannot be held guilty for the offence under Section 307, Indian Penal Code, for having attempted to murder PW 3 Sanjeev Kumar by firing a shot at him with the help of gun Ex.P3. In support of his contention, the learned counsel for the accused has placed reliance on a decision of a Division Bench of Calcutta High Court in Bhamar Singh v. The State AIR 1968 Calcutta 327. 12. In the case relied upon by the learned counsel, the accused was prosecuted for the offence under Section 302, Indian Penal Code and under Section 25, Arms Act, 1959, for having caused the death of one Jaswant Singh by shooting him with a gun and for having in his possesson or carried a fire arm without any licence. The jury unanimously found the accused not guilty of the offence under Section 25, Arms Act, 1959. As regards the first charge of murder, the Jury found him not guilty by a majority of 6 to 2. The Jury also found the accused not guilty under Section 304(1), Indian Penal Code, by a majority of 7 to 1. By the same majority the accused was found not guilty of the offence under Section 326, Indian Penal Code, unanimously by the Jury. The learned Sessions Judge presiding over the trial acquitted the accused of the charges on which the Jury returned a unanimous verdict of not guilty, that is to say, under Section 25, Arms Act, 1959 and 304(11), Indian Penal Code. The learned Sessions Judge, however, did not accept the majority verdict of the Jury holding the accused not guilty under the other Sections. He, therefore/directed the retrial of the accused for the offence under Section 302, Indian Penal Code. The accused was accordingly tried for the offence under Section 302, Indian Penal Code. At such trial the Jury found the accused guilty for the offence under Section 302, Indian Penal Code. The accused was thus convicted and sentenced to life imprisonment. 13. He, therefore/directed the retrial of the accused for the offence under Section 302, Indian Penal Code. The accused was accordingly tried for the offence under Section 302, Indian Penal Code. At such trial the Jury found the accused guilty for the offence under Section 302, Indian Penal Code. The accused was thus convicted and sentenced to life imprisonment. 13. The High Court allowed the appeal, set aside the conviction and sentence, and acquitted the accused of the offence under Section 302, Indian Penal Code. It was held that the acquittal of the accused of the offence under Section 25, Arms Act, 1959 meant that he did not possess the gun in question. Therefore, it would be self contradictory to say that he committed the murder by using a gun which he had never possessed. Such an abound verdict cannot be allowed to stand. 14. In the present case as well, the specific case of the prosectuion is that the accused attempted to kill PW3 Sanjeev Kumar by firing a short with the gun Ex.P.3. The accused was thus, tried on two counts as under- (i) Having attempted to kill PW 3 Sanjeev Kumar by shooting at him with the gun Ex.P3 and thereby committing an offence punishable under Section 307, Indian Penal Code, and (ii) Having in his possession and used the gun Ex.P3 watchful a valid licence and thereby committing the offence punishable under Section 25, Arms Act, 1959. 15. The accused stands acquitted of the offence under Section 25, Arms Act, 1959, since the prosecution failed to prove that the accused was in possession of the gun Ex.P3 at the relevant time or that he had used the same. Therefore, once it is held that te accused was neither in possession nor had used the gun Ex.P3 at the relevant time, he cannot be convicted and sentenced for the offence under Section 307, Indian Penal Code, for having tried to commit the murder of PW 3 Sanjeev Kumar by shooting at him with the gun Ex.P3 (which gun he has been found not to have been possessed and used by him). Maintaining the conviction and sentence under Section 307, Indian Penal Code, would tantamount to self contradictory findings. Maintaining the conviction and sentence under Section 307, Indian Penal Code, would tantamount to self contradictory findings. The learned Sessions Judge has erred in observing that "failure of the police/prosecution to prove the guilt of the accused under Section 25 of the Arms Act, does not affect the findings under Section 307,1.P.C., in any manner". 16. The ratio laid down by the Division Bench of the Calcutta High Court in the above referred to case, with which I am in full agreement, applied to the facts of the present case on all fours. 17. Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge are set aside and the accused is acquitted of the offence under Section 307 Indian Penal Code. The accused, who is lodged in jail undergoing sentence, shall be released, forthwith if not required in any other case. The amount of fine, if already deposited, shall be refunded to the accused forthwith. 18. Let a copy of the judgment be sent to the accused, free of costs, through the Superintendent Model Central Jail for his information. 19. Before parting, this Court places on record the valuable assistance rendered to this Court by Shri Dushyant Dadwal, Advocate, who was appointed as legal and counsel for the accused.