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2004 DIGILAW 324 (HP)

KAMALJEET SINGH v. STATE OF H. P.

2004-12-06

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: Kamaljeet Singh-appellant (hereinafter referred to as the accused) has filed this appeal against the judgment and order dated 24.4.2002 passed by learned Sessions Judge, Bilaspur in Sessions Trial No. 17 of 2001, convicting and sentencing the accused as under :- Offence for which convicted Sentences imposed 1. Section 307 IPC. Rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo imprisonment for one year. 2. Section 25(1-B)(a) of Arms Act Rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo imprisonment for 6 months. 3. Section 27(2) of Arms Act Rigorous imprisonment for seven years and to pay a fine of Rs. 7,000/- and in default of payment of fine to undergo imprisonment for 7 months. 2. Ail the sentences shall run concurrently. 3. Prosecution versions as unfolded during trial may briefly be stated thus: 4. On 5.1.2001, around 1.30 p.m. Shakti Chand, Branch Manager, State Bank of Patiala, Swahan, District Bilaspur informed the incharge of the police at Police Station Kot-Kehloor that two unknown persons after committing robbery of cash of the bank at the point of revolver had run away in car bearing registration No. HR-51-F-6749 towards Shree Naina Devi Ji Temple. The said information was recorded by Assistant Sub Inspector Gautam Chand (PW-11) is daily diary (Roznamcha Ext. PD) in the Police Station. PW-11 alongwith Head Constable Raghubir Singh (PW-4) Head Constable Babu Ram, Constables Shayam Lal, Daulat Ram, Anant Ram Ranjit Singh and Dev Raj (PW-5) immediately proceeded towards Shree Naina Devi Ji in a taxi bearing Registration No. HR-31-A-8563 being driven by Balwinder Singh (PW-2). After covering a distance of about two kilometers from a place known as Tobha, the police party stopped on a curve and started checking all vehicles coming from the opposite side. In the meantime, one Zen car of white colour bearing plate No. HR-51-F-6749 came from the opposite side. The police signalled to the driver of the car to stop but he did not and started to drive the vehicle in reverse gear. The accused was sitting on the front seat of the car. He immediately started firing bullet shots from the revolver aiming at the police personnel. The police signalled to the driver of the car to stop but he did not and started to drive the vehicle in reverse gear. The accused was sitting on the front seat of the car. He immediately started firing bullet shots from the revolver aiming at the police personnel. One bullet shot of the revolver went off closely to the left side of ASI PW-11 who escaped from the shot by jumping to the other side, lest he would have received the bullet injury. Similarly, Constable PW-5 also had a narrow escape from the bullet shot of the revolver being fired by the accused. PW-5 and Head Constable Shyam Lal started firing gun shots from their guns in self defence at the car being used by the accused and his companion. One bullet of their gun shot struck against the bonent, while the second bullet struck against the wind screen of the car of the accused causing dents thereupon. The accused and his companion immediately came out of the car and fled away in a nearby forest and while running the accused continued to fire revolver shots on the police party. PW-11 along with Head Constable PW-4 and constable PW-5 chased the accused upto a considerable distance. PW-11 with the help of constable Gulam Deen (not examined) nabbed the accused in the jungle who was armed with one revolver holding in his right hand and one bag was hanging around his neck. Revolver Ext. P-11 and the bag were taken into possession by PW-11. The revolver was of Smith and Wesson (U.S.A.) make. The accused at that time was wearing jacket of cream colour and black pant. On search of the bag currency notes of Rs. 54,504/-, six live cartridges of 12 bore and four empty cartridges of revolver were found therein. PW-11 prepared sketch plan Ext. PR or the revolver. Six live cartridges of .38 of revolver were recovered from the right pocket of the pant of the accused. Out of those six cartridges one cartridge was retained as sample whereas the other cartridges alongwith four empty cartridges Ext. P-7 to Ext. P-10, the revolver Ext. P-11 and currency notes were taken into possession vide recovery memos Ext. PB and Ext. PC. Four fictitious number plats bearing Nos. PB-10-AK-0530 and PB-26-A-1369 found inside the car of the accused alongwith Registration Certificate were also taken into possession. P-7 to Ext. P-10, the revolver Ext. P-11 and currency notes were taken into possession vide recovery memos Ext. PB and Ext. PC. Four fictitious number plats bearing Nos. PB-10-AK-0530 and PB-26-A-1369 found inside the car of the accused alongwith Registration Certificate were also taken into possession. One more bullet, three cassettes and one hockey stick were found inside the car which were also taken into possession vide seizure memo Ext. PE. PW-11. dispatched mkka Ext. PH to the Police Station for registration of the case against the accused. On the basis of rukka Head Constable Surinder Paul (PW-8) recorded the First Information Report Ext.PJ at Police Station Kot-Kehloor. PVNMV seated the packet of the seizured articles which were later-on sent to Forensic Science Laboratory, Chandigarh for examination. In the course of interrogation of the accused, he disclosed the name of his companion who was driving the vehicle at the time of the commission of the offence to be Jaswinder Singh son of Sh. Hem Raj, resident of Rod-Majara, Tehsil Garh Shankar (Punjab), but the Investigating Officer could not trace out Jaswinder Singh who was declared proclaimed offender lateron. 5. Raj Kumar (PW-6) is the owner of Car No. PB-10-AK-0530 which was purchased by him from M/s. Sharma Building Material Store, Ludhiana, in the year 1999. On 20.11.2000, PW-6 was driving the said vehicle from Ludhiana to Patta in Solan District but on the way at a place known as Sirsa-ghat at about 9.00 p.m. near Nalagarh, four persons committed robbery of his car at point of revolver. PW-6 lodged First Information Report Ext. PK at Police Station, Nalagarh on the same day for an offence under Section 392 read with Section 34 of the Indian Penal Code. In that case, the accused was convicted and sentenced by the trial Court. The appeal filed by the accused against his conviction and sentence has been dismissed by the learned Sessions Judge, Solan on 30.3.2002 and further Criminal Revision No. 95 of 2002 by this Court on 9.5.2003. On receipt of the report of the Ballistic Expert Ext. PA and on completion of investigation charge-sheet was prepared by Inspector/SHO Chamel Singh (PW-1). The accused was sent up for trial. He pleaded not guilty to the charge and claimed to be tried. 6. In order to bring home the acquisitions, eleven witnesses were examined by the prosecution. On receipt of the report of the Ballistic Expert Ext. PA and on completion of investigation charge-sheet was prepared by Inspector/SHO Chamel Singh (PW-1). The accused was sent up for trial. He pleaded not guilty to the charge and claimed to be tried. 6. In order to bring home the acquisitions, eleven witnesses were examined by the prosecution. The accused in his statement recorded under Section 313 Cr.P.C. pleaded false implication by the police officials. He pleaded that when he was going to pay obeisance at Shri Naina Devi Ji Temple on the day of occurrence, the police arrested him. The trial Court found the evidence of prosecution witnesses cogent and liable. Placing reliance on the evidence of PW-2 PW-3 PW-4, PW-5, PW-6 and PW-11, the trial Court found the accused guilty and accordingly convicted and sentenced him as aforesaid. 7. Feeling aggrieved by the conviction and sentence imposed upon the accused, he has preferred the present appeal. 8. In support of the appeal, learned Counsel for the accused submitted that the trial Court has not appreciated the evidence in proper perspective and the conviction of the accused is recorded on mere surmises and conjecture. The learned Counsel then contended that the prosecution has failed to prove that the accused fired bullet shots from the revolver with intention or knowledge to cause death or injury to the police officials, as such the ingredients of Section 307 IPC are not attracted in the present case. He next contended that the sentence. Imposed by the learned Sessions Judge upon the accused under Section 25(2) of the Arms act is legally not sustainable as the prosecution has not proved on record that the fevolver allegedly used by the accused is a Prohibited Arms as defined in Section 2(1 )(i) of Arms Act. . 9. In response, the learned Additional Advocate General for the State supported the judgment and further submitted that in view of the analysis of the evidence made by the trial Court, no interference is called for. 10. In order to appreciate the rival contentions of the learned Counsel, we propose to re-appraise and re-assess the evidence on record. 11. PW-2 Balwinder Singh is the driver of taxi bearing Registration No. HR-31-A-8563. 10. In order to appreciate the rival contentions of the learned Counsel, we propose to re-appraise and re-assess the evidence on record. 11. PW-2 Balwinder Singh is the driver of taxi bearing Registration No. HR-31-A-8563. His evidence is that on 5.1.2001, the police hired his taxi carrying the police officials of Police Station, Kot-Kehloor to append the persons who committed robbery in State Bank of Patiala, Swahan. When he along with police officials was going to a place known as Tobha, the police party checked vehicles coming from the opposite side. One Zen car of white colour also came which was signalled to be stopped by the police party, but the driver of the said car did not stop and started to drive the vehicle in reverse gear, but he could not reverse the car as in the meantime one tractor came behind the car of the accused. Two dacoits alighted from the car and fled away inside the nearby jungle on the lower side of the road. He identified the accused at village Tobha when the police brought him there on the same day and again the accused was identified by him in the Court to be the same person who started firing bullet shots from his revolver at the police officials. Saran Kumar (PW-3) is the independent witness of the occurrence. He deposed that on 5.1.2001. He heard noise of the people at Village Tobha that some dacoits had robed the bank at Swafran and the dacoits had fled away towards Neelagaon from Swahan. He alongwith one Harish Kumar and other village people rushed to Neela-gaon to nab" the dacoits. In the meantime, the police had apprehended one young boy from below the road side at Neela-gaon who has been identified to be the accused in this case. In his presence the police recovered one revolver Ext. P-11 loaded with one cartridge and five more cartridge from the pocket of the accused, besides one bag from his possession. On search of the bag currency notes about Rs. 54,000/- were recovered. Seizure memos Ext. PB and Ext. PC of the seized articles were prepared in his presence by PW-11 the Investigating Officer which bears his signature. Despite lengthy cross-examination of this witness by the defence, his testimony has not been impeached. On search of the bag currency notes about Rs. 54,000/- were recovered. Seizure memos Ext. PB and Ext. PC of the seized articles were prepared in his presence by PW-11 the Investigating Officer which bears his signature. Despite lengthy cross-examination of this witness by the defence, his testimony has not been impeached. Suggestion of the defence that while the accused was coming from Shree Naina Devi Ji temple, the police apprehended him in a false case has been categorically denied by him. The testimony of this witness corroborates ocular version of PVV-4, PW-5 and PW-11, the police officials who were at the spot when the accused and his companion had fled away from the scene of occurrence. 12. PW-4 Raghubir Singh was posted as Head Constable in Police Station, Kot-Kehloor during the relevant time. He deposed that on 5.1.2001 at about 1.30 noons, telephone information was received in the Police Station from Manager State Bank of Patiala, Swahan that Dacoits had robed the bank which was recorded in Rapat Roznamcha Ext. PD. He alongwith PW-5 Constable Dev Raj, PW-11 ASI Gautam Chand and some other police officials hired a taxi of PW-2 and proceeded on the main road in search of the Dacoits. On the way the they checked all the vehicles coming from the opposite direction. One Zen car of white colour bearing registration No. HR-51-F-6749 came from the opposite side which was not stopped by the driver inspite of the signal being given by the police and the driver started driving the vehicle in reverse gear. In that vehicle one more person sitting by the side of the driver on the front spat started firing bullet shots from a revolver aiming at the police party. Ofie bullet shot fired on the person of PW-11 ASI Gautam Chand accidently went of by his side as PW-11 had jumped to the other side and had he not done so, the bullet shot would have caused injury to him. On the direction of ASI Gautam Chand, PW-5 Constable Dev Raj and Constable Shyam Lal had also opened fire in their defence from A.K. 47 guns. One bullet shot fired from A.K. 47 gun struck against the bonnet and the second bullet shot struck against the wind-screen of the car of the accused. On the direction of ASI Gautam Chand, PW-5 Constable Dev Raj and Constable Shyam Lal had also opened fire in their defence from A.K. 47 guns. One bullet shot fired from A.K. 47 gun struck against the bonnet and the second bullet shot struck against the wind-screen of the car of the accused. The driver stopped the car and both occupants immediately tried to field away inside the jungle on the other side of the road and in the process the accused continued firing-bullet shots from his revolver which he was carrying with him. The accused was nabbed by the police at a distance of about 1 km. from road side in a jungle whereas the other accused could not be apprehended by the police. Revolver Ext. P-11 of Smith and Wesson (U.S.A.) make was seized from the bag of the accused, besides currency notes of Rs. 54,504/-, six live cartridges Ext. P-1 to Ext. P-6 of 12 bore and four empty cartridges Ext. P-7 to Ext. P-10 of revolver were also recovered. As per version of this witness six live cartridges (RDX) were recovered from the packet of the pent of the accused, one empty bullet Ext. P-13 of the revolver and one Hockey stick Ext. P-12 was also recovered from in side the car being used by the accused and his companion. Four factitious number plats bearing registration No. PB-26-A-1369 and PB-10-AK-0530 were also recovered from inside the car which were also taken into possession. A suggestion of the defence that the accused has been falsely implicated in this case whereas the real culprits were not apprehended by the police has emphatically been denied by him. 13. PW-5 Constable Dev Raj deposed that on the day of occurrence he was a member of the police party when the accused fired one bullet shot of revolver on the person of PW-11 ASI Gautaum Chand who saved his life by jumping towards his right side and had he not jumped the bullet shot would have hit his body. He too had a narrow escape from receiving bullet shot injury fired by the accused at his person. He along with Constable Shyam Lal fired gun shots at the vehicle of the accused from their A.K. 47 guns in self defence. He too had a narrow escape from receiving bullet shot injury fired by the accused at his person. He along with Constable Shyam Lal fired gun shots at the vehicle of the accused from their A.K. 47 guns in self defence. He stated that one bullet of the gun struck against the bonnet and second against the wind screen of the car of the accused. The accused and his companion came out of the car and jumped to the other side of the road when they were-running towards the jungle side, they continued to open bullet shots of revolver aiming at the police officials who were chasing them. His evidence also proved that the accused was nabbed by PW-11 with the help of constable Gulam Deen. Revolver Ext. P-11 of Smith and Wesson (U.S.A.) make, six live cartridges of revolver were recovered from the pocket of the pent of the accused. On the search of the bag of the accused, currency notes of Rs. 54,504/-, six live cartridges of 12 bore and four empty cartridges of the revolver were found inside the bag. One bullet and one hockey stick were recovered from inside the car, besides fictitious number plats of the vehicle. This witness has denied the suggestion of the defence that the accused has been implicated in a false case by the police officials. 14. PW-6 Raj Kumar, owner of the car bearing No. PB-10-AK-0530 which was purchased by him from M/s. Sharma Building Material Store, Ludhiana. It is his evidence that on 20.11.2000 when he was driving the said car from Ludhiana to Patta, District Solan (H.P.) at about 9 p.m. near a place known as Sirsa-ghat in Nalagarh, his car was robbed by four persons at revolver point. He lodged FIR Ext. PK at Police Station, Nalagarh. He got the car involved in the present case released from the court of Judicial Magistrate 1st Class, Bilaspur on 18.2.2001. 15. PW-11 Gautam Chand has corroborated the testimony of PW-4 and PW-5 in its entirety. He deposed that one bullet shot fired by the accused from revolver Ext. P-11 went off very close to his left side of the body and had he not jumped to other side to save himself, he would have received the bullet injury. Constable Dev Raj also had a narrow escape from the bullet shot fired by the accused. He deposed that one bullet shot fired by the accused from revolver Ext. P-11 went off very close to his left side of the body and had he not jumped to other side to save himself, he would have received the bullet injury. Constable Dev Raj also had a narrow escape from the bullet shot fired by the accused. He along with Constable Gulam Deen had succeeded in nabbing the accused in a jungle after covering a distance of about 1 k.m. from the road side where the accused left the car. The companion of the accused who was driving the car could not be apprehended. He has testified the recovery of the currency notes, live cartridges, fictitious number plats and other articles recovered from the personal search of the accused as well as from his bag and inside the car. It has come in the evidence of this witness that after verification of the antecedents of the accused, it was found that about 15 criminal case as were going on against him in various Courts in Punjab. A suggestion of the defence that when the accused was going back from Shri Naina Devi Ji temple, he was falsely implicated by the police to be a dacoit has been categorically denied by him. The evidence of this witness finds complete corroboration from the above discussed evidence of PW-2, PW-3, PW-4, PW-5 and PW-6. The oral testimony of the above said witnesses has been further corroborated by the report of Ballistic Expert dated 18.6.2001 (Ext. PA). The Scientific Officer (Ballistics) Central Forensic Science Laboratory, B.P.R. and D.M.H.A. Govt. of India, Government in his report opined as under:- 1. The barrel swabs of the 0.38" revolver marked "A" were taken for chemical examination. On chemical examination firing discharge residues were detected. I, therefore, came to the conclusion that the 0.38" revolver marked A had been fired through. 2. The 0.38" revolver marked A was found in working order. 3. On thorough examination and comparison of individual characteristic marks present on test fired cartridge cases and the crime cartridge cases marked C/1 to C/4 under comparison microscope, I came to the conclusion that the crime cartridge cases marked C/1 to C/4 had been fired through the 0.38" revolvered marked TV and they could not have been fired through any other firearm because every firearm has its own individual characteristic marks. 4. 4. The crime 0.38" bullet marked B/1 was found lodged in the barrel of the 0.38" revolver marked A. 16. The report of the Ballistics Expert would reveal that bullet shots were fired by the accused from the revolver Ext. P-11 recovered from his possession by PW-11 on the spot, with intention to cause the death of PW-5 or PW-11 or with intention to cause such bodily injury to them as is likely to cause death. It is well settled that for constituting an offence Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far as that it would have been complete but for the extraneous intervention which frustrated its consummation. (See : State of Maharashtra v. Balram Bama Patil and others, AIR 1983 Supreme Court 305, Vasudeo Balwant Gogta v. Emperor, AIR 1932 Bombay 279, Gopalan Nair v. State of Kerala, AIR 1973 Supreme Court 806, Om Parkash v. State of Punjab, AIR 1961 Supreme Court 1782, Parveen v. State of Haryana, AIR 1997 Supreme Court 310, Ram Kumar v. State (NCT) of Delhi, AIR 1999 Supreme Court 2259 and Hah Mohan Mandal v. State of Jharkhand, 2004 Cri.L.J. 3112 Supreme Court.). 17. Quite clearly the conviction of the accused, is based on the conclusions of facts by the learned trial Court based on appreciation of the evidence of eyes witnesses PW-4, PW-5, PW-6 and PW-11. On I reappraisal and re-assessement of the evidence of the eyes witnesses corroborated by the report of Ballistics Expert and recovery of the revolver, live cartridges, and other articles from the possession of the accused in the presence of police officials and independent witnesses namely PW-2 and PW-3, we find no good reason to differ with the findings recorded by the learned Sessions Judge and the conclusion arrived at that the prosecution has established the requisite ingredient of Section 307 IPC. The evidence of PW-4, PW-5, PW-6 and PW-11 is quite consistent, reliable, trustworthy and convincing. The accused has not challenged or shattered their testimony to prove that the accused has been framed by the police in a false case. 18. The evidence of PW-4, PW-5, PW-6 and PW-11 is quite consistent, reliable, trustworthy and convincing. The accused has not challenged or shattered their testimony to prove that the accused has been framed by the police in a false case. 18. The contention of the learned Counsel for the accused that there was no intention on the part of the accused to cause the death or such bodily injury to the police officials to cause their death and the accused had fired the bullet shots just to facilitate the people to disburse who had gathered at the place of occurrence cannot be accepted. The guilt of the accused is thus quite clearly established by the prosecution on the plain language of Section 307 IPC and on the reasonable consequences which must be assumed to flow from the act of shooting indulged in by him. Knowledge to this effect can legitimately be imputed to him. 19. We do not find any reason to doubt the recovery of revolver from the possession of the accused when he was apprehended on being chased by the police officials. There is no reason to disbelieve the statement of the punch witness Sarwan Kumar (PW-3) who is an independent witness and Constable Dev Raj (PW-5) deposing regarding the recovery of the revolver from the possession of the accused. Since the revolver used by the accused was unlicenced one, his conviction under Section 25 of the Arms Act cannot, however, be sustained. There is no evidence to the effect that the weapon used, namely, revolver Ext. P-11, answers the description of Prohibited Arms within the meaning of Section 2(1)(i) of the Arms Act. The revolver recovered from the possession of the accused is a fire arm, therefore, Section 27(2) of the Arms Act is not attracted in this case. We, accordingly, convict the accused under Section 27(1) of the Arms Act and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- and in default of payment of fine to suffer simple imprisonment for six months. 20. We, therefore, partly allow this appeal. We maintain the conviction of the accused for the offence punishable under Section 307 IPC and Section 25 of the Arms Act. 1,000/- and in default of payment of fine to suffer simple imprisonment for six months. 20. We, therefore, partly allow this appeal. We maintain the conviction of the accused for the offence punishable under Section 307 IPC and Section 25 of the Arms Act. The sentence imposed upon the accused by the learned trial Court for the offence under Section 307 IPC and Section 25 of the Arms Act is also confirmed. However, the conviction of the accused for the offence under Section 27(2) of the Arms Act is set aside and instead he is convicted under Section 27(1) of the Arms Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- and in default thereof to undergo simple imprisonment for six months.