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2024 DIGILAW 382 (UTT)

Raj Singh v. State of Uttarakhand

2024-05-24

ALOK KUMAR VERMA

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JUDGMENT : (Alok Kumar Verma, J.) : The appellant – accused Raj Singh has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years and a fine of Rs.5,000/- for the offence under Section 307 read with Section 34 of the Indian Penal Code, 1860 (in short, “IPC”) in Sessions Trial No.123 of 2007, against which he has filed Criminal Appeal No.217 of 2008. 2. The appellant – accused Raj Singh has been further convicted and sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.2,000/- for the offence under Section 25 of the Arms Act, 1959 in Sessions Trial No.124 of 2007 against which he has filed Criminal Appeal No.218 of 2008. 3. The appellant – accused Virendra alias Maunarodh has been convicted and sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.2,000/- for the offence under Section 25 of the Arms Act, 1959 in Sessions Trial No.125 of 2007 against which he has filed Criminal Appeal No.225 of 2008 4. The appellant – accused Vipin Tyagi has been convicted and sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.2,000/- for the offence under Section 25 of the Arms Act, 1959 in Sessions Trial No.126 of 2007 against which he has filed Criminal Appeal No.226 of 2008. 5. The appellants – accused Virendra alias Maunarodh and Vipin Tyagi have been convicted and sentenced to undergo rigorous imprisonment for a period of seven years each along with a fine of Rs.5,000/- each for the offence punishable under Section 307 read with Section 34 IPC in Sessions Trial No.123 of 2007 against which they have filed Criminal Appeal No.227 of 2008. 6. These five Appeals have arisen from a common judgment dated 16.07.2008, passed by learned Additional Sessions Judge/Ist FTC, Haridwar, therefore, these Appeals are being decided by this common judgment. The Criminal Appeal No.217 of 2008 will be treated as a leading case. 7. The prosecution case briefly stated is that Dhirendra Singh Rawat, Station House Officer, (PW3) along with Sub-Inspector J.P. Thapliyal (PW1), Constable Parvesh Sharma (PW2) and other police personnel were patrolling on 13.12.2006. When the police party reached near Shivmurti Tiraha in Jhabreda, they got an information from an informer at 12:45 hrs. 7. The prosecution case briefly stated is that Dhirendra Singh Rawat, Station House Officer, (PW3) along with Sub-Inspector J.P. Thapliyal (PW1), Constable Parvesh Sharma (PW2) and other police personnel were patrolling on 13.12.2006. When the police party reached near Shivmurti Tiraha in Jhabreda, they got an information from an informer at 12:45 hrs. that three miscreants involved in dacoity in the area of police station Nangal are going towards Lakhnota in a grey colored numberless Maruti car. On receiving this information, as soon as the police team along with the informer reached ahead of Village Kotwal, the said car was seen coming. The police team signaled them to stop but they opened fire twice at the police team. The police team narrowly escaped from this firing. These three miscreants got down from the car and started running towards the forest. The police party arrested them at around 13:00 hrs. They were searched by the police team. A country made pistol 315 bore (Material Ext.1), a spent cartridge (Material Ext.2) in its barrel and a live cartridge (Material Ext.3) were recovered from the accused – Raj Singh. A country made pistol 315 bore (Material Ext.5), a spent cartridge (Material Ext.6) in its barrel and two live cartridges (Material Ext.7 and 8) were recovered from the possession of the accused Virendra alias Maunarodh. A country made pistol 315 bore (Material Ext.10), a cartridge (Material Ext.11) which had missed and got stuck in its barrel and a live cartridge 315 bore (Material Ext.12) were recovered from the accused – Vipin Tyagi. Despite efforts, member of the public could not be secured to testify. The articles recovered from the appellants – accused were seized by the police vide Recovery Memo (Ext. Ka.1). The Recovery Memo (Ext. Ka. 1) was signed by the witnesses present and the appellants – accused. Copy of the memo was given jointly to the accused. 8. An FIR was lodged pursuant to the Recovery Memo (Ext. Ka. 1). The FIR (Ext. Ka. 2) was registered by Constable Gopal Ram (PW4). 9. The investigation was handed over to the Sub-Inspector Satyapal Singh Rana (PW5). The statements of the witnesses were recorded by him. A Site Plan (Ext. Ka. 4) was prepared by him. Necessary sanction to institute a prosecution under Section 25 of the Arms Act, 1959 were obtained. Upon conclusion of the investigation, charge-sheets were filed. 10. 9. The investigation was handed over to the Sub-Inspector Satyapal Singh Rana (PW5). The statements of the witnesses were recorded by him. A Site Plan (Ext. Ka. 4) was prepared by him. Necessary sanction to institute a prosecution under Section 25 of the Arms Act, 1959 were obtained. Upon conclusion of the investigation, charge-sheets were filed. 10. The Trial Court framed charges against the appellants – accused. As the appellants – accused pleaded innocence, trial was held. 11. In order to establish the accusation, prosecution has examined five witnesses. 12. The statements of the appellants – accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded. They denied all the incriminating evidence, produced by the prosecution. 13. The appellants – accused have not produced any evidence in defence. 14. Ms. Aklema Parveen, learned Amicus Curiae, contended that the learned Additional Sessions Judge erred in convicting the appellants relying the wrong facts. The place from where the appellants – accused are said to have fired is not shown in the Site Plan (Ext. Ka. 4). There are material contradictions in the statements of the witnesses and the ballistic report has not been filed by the prosecution. 15. On the other hand, Mr. Pratiroop Pandey, Advocate, has supported the impugned judgment. 16. There is a charge of the offence punishable under Section 307 read with Section 34 IPC. Section 307 IPC deals with the offence of attempt to murder. Section 307 IPC reads as under:- “Section 307. Attempt to murder. – Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 17. In order that a person may be guilty of attempt to murder, two ingredients of the offence must be proved (i) an intention or knowledge of committing murder, and, (ii) the doing of an act towards it. In order that a person may be guilty of attempt to murder, two ingredients of the offence must be proved (i) an intention or knowledge of committing murder, and, (ii) the doing of an act towards it. The offence of attempt to commit murder punishable under Section 307 IPC is constituted by the occurrence of mens rea followed by an actus reus. 18. The prosecution witness Sub-Inspector J.P. Thapliyal (PW1), Constable Parvesh Sharma (PW2) and Inspector Dhirendra Singh Rawat (PW3) are witnesses to the alleged incident. They deposed that on 13.12.2006, when they were patrolling, an information was received from the informer that three miscreants involved in dacoity in the area of Police Station Nangal are going in a car. When they reached ahead of Village Kotwal, the said car was seen by them. They signaled them to stop but they opened fire twice at them. They were arrested and country made pistols, spent cartridges and live cartridges were recovered from their possession. 19. The prosecution has to establish beyond all reasonable doubt that the alleged offence was committed by the appellants – accused. 20. According to the prosecution, the police team was in a private vehicle at the time of the incident. It has been stated by Sub-Inspector J.P. Thapliyal (PW1) in his cross-examination that he was sitting on the rear seat of the driver in the vehicle whereas it has been stated by Constable Parvesh Sharma (PW2) in his cross-examination that the Sub-Inspector J.P. Thapliyal (PW1) was sitting on the front seat of the vehicle. 21. The Investigating Officer has not shown the place in the Site Plan (Ext. Ka.4), from which place the appellants had fired at the police team. There is no mention in the Recovery Memo (Ext. Ka. 1) as to which appellant had fired the bullet whereas the Inspector Dhirendra Singh Rawat (PW3) has stated in his cross-examination that Raj Singh and Virendra alias Maunarodh had opened fire. The prosecution witness Sub-Inspector J.P. Thapliyal (PW1) has stated in his cross-examination that they were getting down from the vehicle when the accused fired, whereas Constable Parvesh Sharma (PW2) has stated in his cross-examination that they were 10-15 steps away from their vehicle when the accused fired. 22. The prosecution witness Sub-Inspector J.P. Thapliyal (PW1) has stated in his cross-examination that they were getting down from the vehicle when the accused fired, whereas Constable Parvesh Sharma (PW2) has stated in his cross-examination that they were 10-15 steps away from their vehicle when the accused fired. 22. According to the prosecution, the recovered articles were sealed and samples of seal were prepared on the spot but the said samples have not been produced by the prosecution. 23. Sub-Inspector Satyapal Singh Rana (PW5), the Investigating Officer, has stated in his cross-examination that the recovered firearms, spent cartridges and live cartridges were not sent to the Forensic Science Laboratory by him. 24. Mr. Pratiroop Pandey, Advocate, argued that the country made pistols and the said cartridges were sent to the Forensic Science Laboratory on 27.01.2007 from the police station Jhabreda. But the prosecution has not been able to explain in whose custody the said articles were kept from 13.12.2006 to 27.01.2007. No bullets have been recovered from the alleged place of incident. The place from where the appellants – accused are said to have fired is not shown in the Site Plan (Ext. Ka.4). The prosecution has not filed the report of the Forensic Science Laboratory. The prosecution has failed to prove that the alleged recovered country made pistols were in working order. 25. Going by the number of discrepancies in the prosecution case coupled with the contradictory statements by prosecution witnesses, the entire prosecution case vitiates and leads for discrediting its version. On a close scrutiny of the evidence, these discrepancies are found comparatively of a major character and go to the root of the prosecution case. 26. Therefore, this Court accepts the case of the appellants. Consequently, these five Appeals are allowed and the judgment dated 16.07.2008, passed by learned Additional Sessions Judge/Ist FTC, Haridwar in Sessions Trial No.123 of 2007, Sessions Trial No.124 of 2007, Sessions Trial No.125 of 2007 and Sessions Trial No.126 of 2007 are set aside. The appellants – accused Raj Singh, Virendra alias Maunarodh and Vipin Tyagi are acquitted of the charges under Section 307 read with Section 34 IPC and Section 25 of the Arms Act, 1959. 27. A copy of this judgment be placed on the record of the connected Criminal Appeals.