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2014 DIGILAW 1609 (PNJ)

Tejan v. State of Haryana

2014-11-21

DARSHAN SINGH

body2014
JUDGMENT Darshan Singh, J. - The present appeal has been preferred by the accused-appellant Tejan against the judgment dated 09.12.2003 passed by Sh. G.S. Kotla, Additional Sessions Judge, Gurgaon, vide which accused-appellant Tejan has been held guilty and convicted for the offences punishable under Section 25 of Arms Act and the order of sentence vide which he has been ordered to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs..1000/- in default of payment of fine to further undergo rigorous imprisonment for a period of one month. 2. In nutshell, the case of prosecution is that on 13.04.2002 PW-8 SI Inderjit Singh along with other police employees on the basis of secret information apprehended the present appellant along with his co-accused Rajiv, Pawan, Sanjay and Rahul when they were making preparation to commit dacoity on Gurdial Singh petrol pump armed with deadly weapons. Co-accused Rahul managed to escape. It is alleged that a pistol of .315 bore duly loaded was recovered from the possession of the present appellant. SI Inderjit Singh got registered the case for offence punishable under Sections 399 and 402 of Indian Penal Code and 25 of Arms Act. After completing the formalities of investigation report under Section 173 of Code of Criminal Procedure was presented in the Court. 3. The case was committed to the Court of Sessions for trial by the learned Chief Judicial Magistrate, Gurgaon. The accused-appellant and his co-accused were charge sheeted for offences punishable under Sections 399 and 402 of Indian Penal Code as well as Section 25 of Arms Act to which they pleaded not guilty and claimed trial. 4. In order to substantiate its case, prosecution examined as many as eight witnesses. 5. After the closure of the prosecution evidence, the accused were examined under Section 313 Code of Criminal Procedure, wherein they pleaded false implication. However, they did not lead any evidence in defence. 6. On appreciating the evidence on record and the contentions of the learned Counsel for the parties, the learned trial Court acquitted the appellant and his co-accused for offences punishable under Sections 399 and 402 of Indian Penal Code, however, the present appellant was held guilty and convicted for offence punishable under Section 25 of Arms Act and was awarded the sentence as mentioned in the upper part of the judgment. 7. 7. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred. 8. I have heard learned counsel for the parties and have meticulously examined the record of the case. 9. Learned counsel for the appellant has argued that the judgment passed by the learned trial Court is self-contradictory. On the one hand, the learned trial Court has held that there are material contradictions in the statements of the official witnesses and they have been disbelieved on the main occurrence. So, how they can be believed on the point of recovery of the pistol from the possession of the appellant. He further contended that there is no independent corroboration to the testimony of the official witnesses. Thus, he pleaded that the conviction of the appellant is not sustainable in the eyes of law. 10. Learned State Counsel pleaded that from the statement of PW-7 ASI Hawa Singh and PW-8 SI Inderjit Singh, it is established that a .315 bore country made pistol along with one live cartridge was recovered from the possession of the present appellant. There is nothing to disbelieve their statements on the point of recovery, so the conviction of the appellant has been rightly recorded by the learned trial Court. 11. I have duly considered the aforesaid contentions. 12. The case against the appellant and his companions was registered under Sections 399 and 402 of Indian penal Code and 25 of Arms Act on the basis of the written information sent by PW-8 SI Inderjit Singh EX.PA. It is not disputed that as per the prosecution case in the same transaction when the accused were apprehended as a result of raid while preparing to commit dacoity, a country made .315 bore pistol loaded with one cartridge was allegedly recovered from the possession of the present appellant. The case was tried by the learned trial Court against the appellant and his co-accused for the charges under Sections 399 and 402 of Indian Penal Code and 25 of Arms Act. The story of the prosecution based on the same set of witnesses has been disbelieved by the learned trial Court qua the main occurrence i.e. for making preparation to commit dacoity while armed with deadly weapons. The story of the prosecution based on the same set of witnesses has been disbelieved by the learned trial Court qua the main occurrence i.e. for making preparation to commit dacoity while armed with deadly weapons. But, it is very surprising that on the same set of evidence, the story of the prosecution regarding recovery of the country made pistol along with one live cartridge from the possession of the appellant has been believed. 13. The judgment of the learned trial Court is self contradictory. On the one hand in para no.18 of the impugned judgment, the learned trial Court has mentioned that there are material contradictions in the statements of PW-8 SI Inderjit Singh and PW-7 ASI Hawa Singh while on the other hand acting upon their statements the conviction of the appellant has been recorded under Section 25 of Arms Act. Once the learned trial Court has found that there were material contradictions in the statements of PW-8 SI Inderjit Singh, the investigating officer of the case and PW-7 ASI Hawa Singh, the witness of the recovery and they have been disbelieved on the point of the main occurrence. They also can not be relied upon on the point of recovery, as the recovery is also alleged to have been effected in the same transaction. So, there was also absolutely no justification to record the conviction of the appellant for offence punishable under Section 25 of Arms Act. 14. In case of Naresh v. State of Haryana 2013(4) RCR (Criminal) 895, the appellant was acquitted of the charges under Section 399 and 402 of Indian Penal Code while dealing with the appeal against conviction under Section 25 of Arms Act, this Court laid down as under:- "When in the main case, the statements of same Pws have not been believed then in the present case registered under Section 25 of the Arms Act, the appellant can not be convicted. The spring actuated knife has been recovered from the appellant during the investigation of the main case. Same Pws, who have been examined in the present case, have deposed in the main case but this Court has accepted the appeal and has acquitted the appellant. Therefore, the appellant is entitled to acquittal in the present case also." 15. The aforesaid ratio is fully applicable to the present case. Same Pws, who have been examined in the present case, have deposed in the main case but this Court has accepted the appeal and has acquitted the appellant. Therefore, the appellant is entitled to acquittal in the present case also." 15. The aforesaid ratio is fully applicable to the present case. Thus, once the accused-appellant has been acquitted by the learned trial Court for the main offences holding the story of the prosecution unbelievable based on the same set of witnesses, and the recovery is also alleged to have been effected in the same transaction, so there statements can not be relied upon even on the point of recovery. Consequently, the conviction of the appellant under Section 25 of Arms Act is also not sustainable in the eyes of law. 16. Thus, keeping in view my aforesaid discussion, the present appeal is hereby allowed. The conviction of the appellant and sentence awarded to him for offence punishable under Section 25 of Arms Act is hereby set aside. He stands acquitted of the charges leveled against him. The fine of Rs.1000/- deposited by the appellant be refunded to him as per rules.