Dharamvir vs State of Punjab

Mehinder Singh Sullar, J.—The matrix of the facts and evidence, unfolded during the course of trial, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record is that on 26.07.1999, as soon as, a police-party headed by Inspector Wasakha Singh, consisted of SI Gurmail Singh (PW 1), SI Daya Singh and other police officials, was present at ''T-Point Mohindra College, Patiala, in the meantime, a secret information was received that appellant-Dharamvir and his other co-accused armed with deadly weapons were sitting near the wall of cremation ground and preparing to commit bank dacoity or to loot some Petrol Pump in Patiala City. If raid is conducted, then the accused can be apprehended at the spot. Consequently, PW 1 has sent the ruqa to the Police Station for registration of the case, on the basis of which, a separate case was registered against the accused, including the appellant, vide FIR No. 259 dated 26.07.1999 (for brevity "the main case"), for the commission of offences punishable under Sections 399 and 401 IPC, by the police of Police Station Kotwali Patiala, which was separately tried by the trial Court. Sequelly, in the instant case, the prosecution claimed that during the course of investigation of the main case, five accused including appellant-Dharamvir were arrested by the police from the cremation ground, Ghalauri Gate, Patiala. In pursuance of personal search,.32 bore country-made revolver was recovered from the possession (right side "Dabb") of the appellant along with two loaded live cartridges, which were taken into possession by the investigating officer vide recovery memo (Ex. PB) and attested by the witnesses. The sketch (Ex. PA) of the revolver was also prepared. A ruqa (Ex. PD) was sent to the Police Station, on the basis of which, present formal FIR (Ex. PD/1) was recorded in this regard.

Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that one country-made revolver with two loaded live cartridges was recovered from the possession of the accused, without any permit or license. In the background of these allegations and in the wake of writing (ruqa) (Ex. PD), the present criminal case was registered against the accused, vide FIR No. 261 dated 26.07.1999, on accusation of having committed an offence punishable u/s 25 of the Arms Act, by the police of same Police Station Kotwali, Patiala, in the manner depicted here-in-above.

After completion of the investigation, final police report (challan) was submitted against the accused by the police to face trial for the pointed offence.

Having completed all the codal formalities, the accused was charge-sheeted for the commission of offence punishable u/s 25 of the Arms Act by the trial Court. As, he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.

The prosecution, in order to substantiate the charges framed against the accused, examined PW 1 SI Gurmail Singh, PW 2-HC Jaspal Singh, PW 3-HC Kamal Kumar and PW 4-Kirpal Singh, Ahlmad, in oral evidence.

After close of the prosecution evidence, statement of the accused was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as envisaged u/s 313 Cr.P.C. He has stoutly denied the prosecution evidence in its entirety and pleaded false implication. However, he did not prefer to produce any evidence in his defence, despite opportunity.

Taking into consideration the entire evidence brought on record by the prosecution, the trial Court convicted and sentenced the appellant, to undergo rigorous imprisonment for a period of three years, to pay a fine of Rs. 5,00/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months, by virtue of impugned judgment of conviction and order of sentence dated 06.01.2003.

Aggrieved thereby, appellant-Dharamvir has preferred the instant appeal. That is how, I am seized of the matter.

After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal, as regards the conviction of the appellant is concerned.

Ex facie, the solitary argument of the learned counsel that since, the prosecution has not examined any independent witness, so, conviction of the appellant, cannot be based only on the statements of the police officials alone, is not only devoid of merit but misconceived as well.

As is evident from the record that, the prosecution has examined main material recovering witnesses. PW 1-SI Gurmail Singh has maintained on oath that on 26.07.1999, a police-party headed by Inspector Wasakha Singh was present at ''T''-Point Mohindra College, Patiala. A writing (ruqa) in the main case was sent to the Police Station. Thereafter, a police-party raided the cremation ground, Ghalauri Gate, Patiala, noticed and arrested five persons sitting there including appellant-Dharamvir. In the wake of personal search of the appellant,.32 bore country-made revolver (Ex. P1) was recovered from his possession (right side "Dabb") along with two live cartridges (Exs. P2 and P3). He prepared the sketch (Ex. PA) of the revolver, which was attested by HC Jaspal Singh and Constable Jeet Singh. The revolver and cartridges were taken into possession vide recovery memo (Ex. PB) attested by the attesting witnesses. He sent ruqa (Ex. PD) to the Police Station for registration of the case, on the basis of which, formal FIR (Ex. PD/1) was recorded by SI Kaka Singh. He prepared the rough site plan (Ex. PE) of the place of occurrence with its correct marginal notes.

Likewise, PW 2 HC Jaspal Singh has also supported the prosecution version. Instead of reproducing his entire statement in toto and in order to avoid the repetition, suffice it to say that, he has corroborated the statement of PW 1 on all vital counts, as regards, the recovery of country-made revolver and live cartridges is concerned. Similarly, PW 3-HC Kamal Kumar has checked the revolver and opined that it was in working position vide report (Ex. PG). PW 4-Kirpal Singh, Ahlmad has proved the sanction order (Ex. PH) to prosecute the appellant granted by the ADM, Patiala.

In this manner, all the witnesses have categorically stated that the country-made revolver (Ex. P1) and live cartridges (Exs. P2 and P3) were recovered from the possession of the appellant, without any permit or license. Learned counsel for the appellant did not point out any legal infirmity or major contradictions in the evidence, except minor irrelevant discrepancies here and there in the statements, to dislodge the prosecution version in its entirety, which is otherwise proved by oral as well as the documentary evidence, as discussed here-in-above. All the witnesses have fully supported the prosecution case. They were cross-examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony. No motive could hardly be attributed to them as to why they would falsely implicate the appellant in this case. Their evidence cannot possibly be rejected only on the ground of their status as police officer, as contrary urged on behalf of the appellant. The evidence of PWs is reliable and acceptable. Moreover, they gave a vivid and consistent version of the occurrence and supported the prosecution story on all vital aspects of recovery of the arms and ammunition, in question. The mere denial of defence version deserves to be out rightly rejected in the absence of any cogent evidence on record. Therefore, to me, the prosecution has successfully proved the guilt of the accused.

Faced with the situation, learned counsel has fairly acknowledged that in view of the pointed cogent evidence brought on record, further he will not be in a position to contest the conviction of the appellant any more. He has no other argument or ground, much less cogent, to assail the prosecution version in this relevant context. Since, no other legal infirmity has been pointed out by the learned counsel for the appellant, so, the impugned judgment of conviction is hereby maintained.

Be that as it may, however, the contention of the learned counsel for the appellant that there is some scope of reduction in the matter of sentence of the appellant, has considerable force. As per custody certificate, the appellant and his other co-accused have already been convicted and sentenced to undergo rigorous imprisonment for a period of seven years u/s 399 IPC in the main case by way of a separate trial. In the present case u/s 25 of the Arms Act, the appellant has already undergone the substantive portion of his sentence of imprisonment of one year and nineteen days, out of total awarded sentence of imprisonment of three years. There is no history of his previous conviction, except in main case arising out of the same transaction. By now he has faced the pangs of protracted investigation, period of trial and appeal of more than fourteen years.

Thus, taking into consideration the above-mentioned factors into focus, to my mind, it would be expedient in the interest and justice would be squarely met and sub-served, if a lenient view in the matter of sentence is taken against the appellant in the obtaining circumstances of the case. Therefore, the sentence of imprisonment for a period of three years imposed on the appellant by the trial Court, is reduced to the period already undergone by him (i.e. one year and nineteen days) in this case u/s 25 of the Arms Act. However, fine is enhanced from Rs. 500/- to Rs. 2500/- and in default of payment of fine, he is ordered to further undergo rigorous imprisonment for a period of one month.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

In the light of aforesaid reasons, the instant appeal on merits is dismissed. The impugned judgment of conviction is hereby maintained. However, the order of sentence is accordingly modified to the extent and in the manner indicated here-in-above.

Needless to mention that, the necessary compliance and procedural consequences would naturally follow.