Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 228 (UTT)

Sultan v. State of Uttaranchal

2014-05-21

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. 1. A first information report was lodged by Inspector-in-charge, PS Kotdwar, District - Pauri Garhwal, against five named accused persons, including the appellant for the offences punishable under Sections 147, 148, 149, 307 of IPC and Section 25 of the Arms Act. After the investigation, two separate charge-sheets were submitted against the appellant, one for the offence punishable under Section 307 of IPC and another, under Section 25 of the Arms Act. The case was committed to the court of Sessions. When the trial began and the prosecution opened its case, two separate charges, one, under Section 307 of IPC and the another, under Section 25 of the Arms Act, were framed against the appellant, to which, he pleaded not guilty and claimed trial. Four witnesses, namely, PW 1 SI J.P. Tomar, PW 2 SI T.S. Rana, PW 3 Kailash Panwar and PW 4 Nayan Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr. P.C. in reply to which, he said that he was falsely implicated in the case. No evidence was given in defence. 2. After considering the evidence on record, the learned trial court convicted the accused Sultan of the offences punishable under Sections 307, 148 of IPC and Section 25 of the Arms Act and was sentence appropriately. Aggrieved against his conviction and sentence, vide impugned order dated 31.10.2003, present criminal appeal was preferred. 3. The allegation and charge against the appellant, in a nutshell, is that on 24.02.2000, at about 11:30 pm, on the bank of river Sukhrav, the accused fired with country-made pistol on police party, with such intention and under circumstances that if he by that act, caused death of any member of police party, he would be guilty of murder. He thereby committed an offence punishable under Section 307 of IPC. He was in the company of other accused persons while doing so. Charge was accordingly amended to Section 148 of IPC and Section 307 read with Section 149 of IPC. A country-made pistol was also recovered from the possession of the appellant. Recovery memo was prepared on the spot, a copy of which was given to the appellant. The incident allegedly took place on 24.02.2000 and the first information report was lodged immediately thereafter, on 25.02.2000, during the night itself. 4. A country-made pistol was also recovered from the possession of the appellant. Recovery memo was prepared on the spot, a copy of which was given to the appellant. The incident allegedly took place on 24.02.2000 and the first information report was lodged immediately thereafter, on 25.02.2000, during the night itself. 4. The informant-Inspector V.R. Arya, was not examined by the prosecution. Prosecution led the evidence through PW 1, who stated, in his examination-in-chief, that on 24.02.2000, when he was posted at PS Kotdwar, he, along with other police personnel, proceeded on patrolling duty. PW 1 received instructions on wireless from his S.H.O. that they should reach BEL road. They reached BEL road and left their jeep there. The appellant along with his companions were asked to surrender. They did not abide by the instructions of police. The appellant along with his companions fired upon the police personnel with the intention of killing them. None of the police party sustained any injury. They escaped unhurt. The police also fired in retaliation. The appellant was apprehended on the spot. The others fled away. A country made pistol of 315 bore along with two cartridges was recovered from his possession. A recovery memo of the same was prepared on the spot. Appellant Sultan disclosed the names of his companions. No public witness was available and therefore, no independent witness could be procured. 5. In his cross-examination, PW 1 stated, among other things, that the presence of the appellant and his accomplices was intimated to them by the police informer. The place of incident was situated at a distance of 300 yard from Sukhrav River. It was a thoroughfare, in which the general public had access. He denied the suggestion that no such incident took place and nothing was recovered from the possession of the appellant. 6. PW 2 supported the prosecution story and reiterated, in his examination-in-chief, what was stated by PW 1. In his examination-in-chief, he also stated that the appellant constituted a gang. When the police personnel reached at the place of incident, they asked the members of the gang to surrender, but the appellant and others, instead of surrendering, fired upon the police party. They (police party) escaped unhurt. The appellant was arrested. A country-made pistol and two cartridges were recovered from his possession, recovery memo of which was prepared. No independent witness could be procured. They (police party) escaped unhurt. The appellant was arrested. A country-made pistol and two cartridges were recovered from his possession, recovery memo of which was prepared. No independent witness could be procured. According to PW 2, first information report (Ext. Ka1) was lodged by SHO (who was not examined). 7. In his cross-examination, PW 2 stated that the stolen property was not recovered from the possession of the appellant and others. Members of the police party did not take personal search of each other before taking search of the appellant. Personal search of the members of the police party was also not given to the appellant. The road leading to the place of incident was a metalled road. No public transport passed through the place of incident during such period. The police personnel remained there. PW 2 too denied the suggestion that the appellants or his associates did not fire upon the police party. 8. PW 3 was the investigating officer of the case, who took the statements of the witnesses, obtained the permission of the District Magistrate and after being satisfied that the appellant committed the crime, submitted charge-sheet under Section 307 of IPC (Ext. Ka-2) and charge-sheet under Section 25 of the Arms Act (Ext. Ka-3). In the cross-examination, he denied the suggestion that the District Magistrate did not apply his mind while granting sanction (Ext. Ka-4). PW 3 further admitted, in his cross-examination, that no allegation of Section 307 of IPC was substantiated against co-accused Tausif, Farid, Sharif and Muntazir and no charge-sheet was submitted against them. 9. PW 4 was also the investigating officer, who conducted the investigation at some length. He proved chik FIR (Ext. Ka-5) and entry of the same in G.D. (Ext. Ka-6). Part of the investigation was conducted by SI Surendra Singh Bisht (not examined), who inspected the place of incident, prepared site plan (Ext. Ka-7) and finally, the charge-sheet was submitted by PW 3. In his brief cross-examination, he denied the suggestion that the appellant was already arrested earlier and thereafter, was falsely shown to be arrested in a case of firing upon the police. 10. It appears that the appellant in association with his companions, constituted a ‘gang’ of thieves and therefore, the police arrested him in a no-injury case of police firing. In his brief cross-examination, he denied the suggestion that the appellant was already arrested earlier and thereafter, was falsely shown to be arrested in a case of firing upon the police. 10. It appears that the appellant in association with his companions, constituted a ‘gang’ of thieves and therefore, the police arrested him in a no-injury case of police firing. It is the admitted fact that when the appellant allegedly fired upon the police party, none of them sustained any injury. In other words, they escaped un-hurt. No injury was sustained by the appellant either, even if, in retaliation. The other accused-persons were not arrested. They are stated to have fled away. It is admitted by PW 3, in his cross-examination, that no case was made out against the companions of the appellant and therefore, no charge-sheet was submitted against them. The prosecution case is falsified on this ground alone. When it is stated that the appellant, in the company of his associates, fired upon the police party, in which no police personnel sustained injury and, according to PW 4, no case against the companions of the appellant was found, the prosecution case falls to the ground. A report under Section 169 of Cr. P.C. was submitted against co-accused Sharafat. It is already indicated above that no independent witness was procured by the police in support of its case. Country-made pistol and cartridges allegedly recovered from the possession of the appellant were not sent to the ballistic expert. Had the report of ballistic expert obtained by the investigating officer, the same would have lent some assurance to the prosecution story. 11. To sum up, it is a ‘no-injury’ case of police firing. The appellant allegedly fired upon them, but they did not sustain any injury. The appellant did not sustain any injury by the firing of the police personnel in retaliation or self-defense either. No public witness was procured to witness recovery of country-made pistol and cartridges from the possession of the appellant. Recovered material was also not sent to the ballistic expert. 12. The law does not say that the testimony of police witness should not be accepted. Normally, the testimony of police witness can be accepted, but the same should inspire confidence. It is the quality of evidence which matters, and not the quantity of the same. Recovered material was also not sent to the ballistic expert. 12. The law does not say that the testimony of police witness should not be accepted. Normally, the testimony of police witness can be accepted, but the same should inspire confidence. It is the quality of evidence which matters, and not the quantity of the same. In the instant case, PW 1 and PW 2 made an attempt to prove the prosecution story, but the quality of evidence tendered by them is found wanting in certain respects. A common reasonable prudent person will not accept the testimony rendered by PW 1 and PW 2. The same does not inspire confidence. It is, therefore, held that the prosecution is not able to prove the case against the appellant beyond shadow of reasonable doubt. The appellant is entitled to be given benefit of doubt. Interference is thus called for in the impugned judgment and order. 13. The criminal appeal preferred on behalf of the accused-appellant is, therefore, allowed. The conviction and sentence awarded to him by the Court below, vide order dated 31.10.2003, is set aside. The accused-appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. 14. Let a copy of this judgment along with the Lower Court Record be sent back to the Court below.