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2010 DIGILAW 2623 (PNJ)

Kuldeep Singh v. State Of Punjab

2010-09-13

A.N.JINDAL

body2010
Judgment 1. This judgment of mine shall dispose of three connected appeal Nos. 1488,1489 and 1520-SB of 2002 having been arisen out of the same judgment. 2. The trial Court vide judgment dated 11-9-2002 had convicted all the five accused- appellants (herein referred as the accused) under Section 399, IPC and sentenced them to undergo rigorous imprisonment for two years and to pay fine of Rs. 1000/- each. Accused Jagtar Singh, Kuldeep Singh and Malkiat Singh were further sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/- each under Section 25 of Arms Act. 3. On 6-1-1999, at about 7.00 p.m. when SI/SHO Ajmer Singh was present at the turning of village Mallian in the area of Kartarpur, he received a secret information that the accused Gurdip Singh and other accused were planning to commit dacoity on the highway and if the raid is conducted, they could be apprehended with arms and ammunition. Believing the information to be reliable, ruqa Ex. PD was sent, on the basis of which FIR Ex. PD/1 was registered. The police party then raided the place and apprehended the accused except accused Gurdip Singh who was not found there. On personal search of the accused Jagtar Singh alias Pappu, a country made pistol of .303 bore along with live cartridge were recovered. On personal search of the accused Malkiat Singh one country made pistol of .12 bore along with one live cartridge were recovered. On,personal search of the accused Kuldeep Singh a country made pistol of 9 mm along with three live cartridges were recovered. From the possession of Narinder Singh and Jaspal Singh one Kirpan each were recovered An FIR No. 5 was registered on 6-1-1999 and the case was investigated which was followed by a report under Section 173, Cr.P.C. 4. The accused were charged under Sections 399/402, IPC and 25 Arms Act, to which they pleaded not guilty and claimed trial. 5. In order to substantiate the charges, the prosecution examined AST Ashok Kumar (P.W. 1), SI Ajmer Singh- (P.W. 2), HC Baljinder Singh (P.W. 3), SI Satnam Singh (P.W. 4), Satnam Singh Patwari (P.W. 5) and Mukesh Kumar (P.W. 6). 6. When examined under Section 313, Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. 7. The trial ended in conviction. 8. Arguments heard. 6. When examined under Section 313, Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. 7. The trial ended in conviction. 8. Arguments heard. Record perused. 9. On scrutiny of the entire evidence, it transpires that the judgment is based only on the inference that since the accused persons were found sitting at the secluded place with arms and ammunition, therefore, the presumption of dacoity could not be ruled out. However, there is no evidence on the record in order to indicate if they had assembled with the purpose of dacoity or were making any preparations to commit dacoity. None of the prosecution witnesses or any independent witness had heard them planning to commit dacoity or much less making preparation for committing dacoity. In the absence of any substantive evidence with regard to their designs and plans, the accused could not be said to have committed the act for which they were charged. The Apex Court, in the similar circumstances observed in case Chaturi Yadav V/s. State of Bihar, AIR 1979 SC 1412 : 1979 (3) SCC 430 : 1979 Cri LJ 1090 : 1979 SCC (Cri) 502 as under : "4.........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 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 make 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 clearly 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. 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 the refore, we are unable to sustain the judgment of the High Court." 10. In Gholtu Modi V/s. State of Bihar, 1986 Cri LJ 1031, some persons were found present, with weapons, in a house at night, which was under construction. In these circumstances, it was held that their mere presence with weapons, at that place, at night, was not, by itself, sufficient to prove that they had assembled there, for the purpose of making preparation to commit dacoity. In Brijlal Mandal v/s. State of Bihar, 1978 Criminal Law Journal 877, the appellants were found sitting in the waiting hall of a Railway Station, armed with various types of weapons. They were apprehended, but there was no proof, that they had assembled for making preparation, to commit dacoity and no other offence. In these circumstances, it was held that they did not commit the offences punishable under Sections 399 and 402 of the Indian Penal Code. 11. Again, while following the aforesaid judgment Division Bench of this Court in case Mahavir son of Milla Ram v/s. State of Haryana, 2009 (2) AICLR 738 : (2009 Cri LJ (NOC) 881 (P & H) observed that in order to bring home the charge against the accused under Section 399/402, IPC, the prosecution must prove from some evidence directly or indirectly or from the attending circumstances that the accused persons had assembled for no other purpose than to make preparation, for commission of dacoity. In the absence of such evidence mere assembly and recovery of fire arms do not prove the charge. 12. Now coming to the offence under Section 25 of the Arms Act, it may be observed that, no doubt, the report made by ASI Ashok Kumar (P.W. 1) Head Armour, Police Line Jalandhar, the weapon so sent to him were found in workable condition. But, during cross-examination he has submitted that none of the weapons so produced before him were test fired by using cartridge. There is no denying a fact that there was no mark on the pistol .303 and similarly the other two weapons were also country made weapons. But, during cross-examination he has submitted that none of the weapons so produced before him were test fired by using cartridge. There is no denying a fact that there was no mark on the pistol .303 and similarly the other two weapons were also country made weapons. While clarifying about the test, he has stated as under : "............The cartridges were not produced before me. I had not fired any shot with the pistol using the cartridge......" 13. Thus, in the absence of any test fire, it would be impracticable to disclose as to how he came to know whether the weapons were able to fire and same were in workable condition. Thus, in the absence of test fire, the report made by ASI Ashok Kumar (P.W.1) cannot be believed to make out that the weapons so tested by him were fit to be used as fire arm. Similar view was taken by the Division Bench of this Court in Mahavirs case (supra) wherein it was observed as under : 17. Shiv Parkash alias Shiba was also allegedly found in possession of a country made pistol 315 bore along with one live cartridge of the same bore. Bhim Singh, Head Constable, (P.W. 6) was posted as Armourer in Police Line Kaithal. He mechanically tested the pistol, and gave his report Ex. PR However, during the course of cross-examination, it was stated by him, that the pistol was only mechanically examined by him, but it was not tested by way of firing the shots therefrom. He further stated, during the course of cross-examination, that he could not tell whether the firearm was ever used or not. Bhim Singh, Head Constable, (P.W. 6) could only come to the conclusion, as to whether, the pistol which he allegedly mechanically tested, could be used as a weapon of offence or defence, after test firing the cartridges therefrom. He admittedly did not make any test fire and, as such, he could not say, as to whether, the object was ever used. Under these circumstances, it could not be said, as to whether, the pistol like object, which was allegedly recovered from Shiv Parkash alias Shiba, accused, could be used as a weapon of offence or defence. He admittedly did not make any test fire and, as such, he could not say, as to whether, the object was ever used. Under these circumstances, it could not be said, as to whether, the pistol like object, which was allegedly recovered from Shiv Parkash alias Shiba, accused, could be used as a weapon of offence or defence. Only after the proof that the pistol allegedly recovered from Shiv Parkash alias Shiba, accused, could be used, as a weapon of offence or defence, that the same could fall within the purview of Section 25 of the Arms Act. It may be a toy pistol, which was allegedly recovered from Shiv Parkash. Even the evidence of the prosecution witnesses, with regard to the alleged recovery of the pistol from Shiv Parkash alias Shiba, accused, could not be said to be reliable, in any manner. The prosecution, therefore, miserably failed to prove that the pistol, which was allegedly recovered from the accused, could be used as a weapon of offence or defence and it was in working condition. No offence under Section 25 of the Arms Act was, thus, committed by Shiv Prakash alias Shiba, accused. The trial Court did not take into consideration this aspect of the matter and as such fell into grave error in recording conviction and awarding sentence for the offence punishable under Section 25 of the Arms Act." 14. That apart, no independent witness was examined to attest the recovery memo. No evidence has been led by the prosecution that the accused had assembled at the secluded place. The trial Court has not appreciated the aforesaid aspects of the case, as such, the impugned judgment being invalid has resulted into miscarriage of justice. 15. For the aforesaid reasons, I accept the appeals, set aside the impugned judgment, acquit the accused of the charges framed against them and direct that they be set at liberty forthwith. Bail bonds and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded.