Hardam Singh vs State of Punjab

Sham Sunder, J.—This appeal is directed against the judgment of conviction, and the order of sentence, dated 17.07.95, rendered by the Court of Additional Sessions Judge, Bathinda, vide which, it convicted the accused (now appellant), for the offence, punishable u/s 25 of the Arms Act, and sentenced him, to undergo rigorous imprisonment, for a period of one year, and to pay a fine of Rs. 200/-, and in default thereof, to further rigorous imprisonment, for a period of 15 days. The sentence awarded to the accused was ordered to run concurrently, with the sentence, awarded to him, in case FIR No. 32, dated 27.02.93, u/s 304(i) of the Indian Penal Code, Police Station Kotwali Bathinda.

The facts, in brief, are that, on 4.4.93, Hardam Singh, accused, was interrogated, in case FIR No. 32, dated 27.02.93, u/s 302 read with Section 34 of the Indian Penal Code, titled as "State v. Hardam Singh & Mohinder Kaur". During the course of interrogation, he made a disclosure statement, that he had concealed a spear, in sarkandas, standing in a deserted brick-kiln, on way to Bir Talab, and could get the same recovered, by pointing out. His disclosure statement was reduced into writing. Thereafter, he led the police party to the pre-disclosed place, and got recovered a spear, therefrom, which was taken into possession, vide separate memo. On the completion of investigation, the accused was challaned.

On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, Charge u/s 25 of the Arms Act, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined Assistant Sub Inspector Manjit Singh (PW1), and Sub Inspector Malkiat Singh (PW2). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence.

The statement of the accused u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he was arrested, from Bharatpur, on 1.3.93, and his arrest, was shown on 1.4.93. It was further stated by him, that no recovery of spear, was effected from him. He, however, did not lead any evidence, in his defence.

After hearing the Counsel for the parties and, on going through the evidence, on record, the trial Court, convicted and sentenced, the accused, as stated above.

Feeling aggrieved, the instant appeal, was filed by the accused (now appellant).

I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

The Counsel for the appellant, submitted that no voluntary disclosure statement, was made, by the accused, before Malkiat Singh, Sub Inspector, nor any spear, in pursuance thereof, was got recovered, by him. The submission of the Counsel for the appellant, in this regard, appears to be correct. Malkiat Singh, Sub Inspector, PW2, during the course of his cross-examination, stated that Hardam Singh, accused, was also interrogated on 1.4.93, but he did not suffer any disclosure statement, on that day. He further stated that he also interrogated the accused, on 2.4.93, and 3.4.93, but no disclosure statement, was made by him, regarding the alleged concealment of the spear. Since no disclosure statement was made on 1.4.93, 2.4.93, and 3.4.93, by the accused, when he was subjected to sustained interrogation, it could not be imagined, that he would make such a disclosure statement, dated 4.4.93, allegedly made by the accused, could not be said to be voluntary, but, on account of the torture, having been perpetrated, against him. This fact is further strengthened, from the circumstance, that no independent witness, was joined, at the time, the alleged disclosure statement was made by the accused, on 4.4.93. It was required of the Investigating Officer, to join an independent witness, especially when the accused had been in custody, for the last four days, and on earlier three days, despite sustained interrogation, he did not make any disclosure statement, regarding the alleged concealment of the spear, in question. The trial Court, did not take into consideration, this aspect of the matter, and, as such, fell into a grave error, in holding, that a voluntary disclosure statement was made by the accused, resulting into the recovery of spear. The finding of the trial Court, in this regard, being not correct, is liable to be set-aside.

Not only this, no independent witness, was joined, either at the time of the alleged disclosure statement, nor at the time of the alleged recovery, in pursuance of the alleged disclosure statement. During the course of cross-examination Manjit Singh, Assistant Sub Inspector, PW1, stated that the spear was got recovered from a deserted brick-kiln, situated at a distance of 2 kms, from Bathinda city. He further stated that one has to cross the city area, before reacting the place of recovery. Malkiat Singh, Assistant Sub-Inspector, PW2, stated that Police Station Kotwali, Bathinda, is located in thickly populated area. He further stated that while going to the brick-kiln, again efforts were made, to join an independent witness, but nobody was available. He further stated that, no action was taken, against those persons, who refused to join the investigation. He further stated that he did not remember the names of the persons, who were called to join the investigation. He further stated that the place of recovery of spear was accessible to all. From the statement of Manjit Singh, PW1, and Malkiat Singh, PW2, it is evident that, in fact, no effort was made by them, to join an independent witness. The explanation furnished by Malkiat Singh, Sub Inspector, PW2, that efforts, were made, but none was available, is nothing but a tissue of lies. It could not be imagined, that in a thickly populated area, through which the police party passed, no independent witness was available. Had a genuine and sincere effort, been made, to join an independent witness, and the same would not have been successful, the matter would have been different. Since, in the instant case, no genuine effort, was made, the case of the prosecution, become doubtful. It is, no doubt, true that, in the absence of corroboration to the evidence of the official witness, though an independent source, the case of the prosecution, cannot be thrown out. In these circumstances, the Court, is required to scrutinize the evidence of the prosecution witnesses, carefully and cautiously, for coming to the conclusion, as to whether, the same was reliable. In the instant case, the evidence of the prosecution witnesses, has been subjected to thorough scrutiny, but the same was found to be unreliable, and not credible. In State of Punjab v. Bhupinder Singh 2001(1) R.C.R. (Cri.) 356, a Division Bench of this Court, held the case of the prosecution, to be doubtful, on account of non-joining of an independent witness, though the recovery was effected from a busy locality. In State of Punjab v. Ram Chand 2001(1) R.C.R. (Cri.) 817, a Division Bench of this Court, held that it was imperative to join an independent witness, to vouchsafe the fair, investigation. On account of non-joining of an independent witness, it was held that the accused was entitled to be given the benefit of doubt. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. On account of non-joining of an independent witness, at the time of making the alleged disclosure statement and alleged recovery of spear, the case of the prosecution, became highly doubtful. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in holding that the case of prosecution stood proved.

Even, the alleged recovery of spear, was got effected, from an open and accessible place, near the deserted brick-kiln, on the katcha passage, near Bir Talab. There is nothing, in the statements of Malkiat Singh, and Manjit Singh, that the spear was in concealment under sarkandas, when the alleged recovery thereof, was got effected by the accused. He admitted, during the course of his cross-examination, that the place of recovery was open and accessible. It means that all and sundry could go to the place of recovery. Since the spear was not concealed under sarkandas, or under any growth, no exclusive knowledge, could be attributed to the accused, with regard to the same. Any body could keep that spear, at the place of the alleged recovery. Even, there was no special mark of identification, on the spear, as a result whereof, the same could not be connected with the present accused. It appears that the recovery, in this case, was turned into discovery. The provisions of Section 27 of the Indian Evidence Act, were misused, in this case. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence.

No other point, was urged, by the counsel for the parties.

In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based, on the correct appreciation of evidence, and law on the point. The judgment of conviction and the order of sentence, thus, warrant interference and are liable to be set-aside.

For the reasons, recorded above, the appeal, is accepted. The judgment of conviction, and the order of sentence, are set-aside. The appellant shall stand acquitted of the charge, framed against him. If he is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once,) if not required, in any other case.

The Chief Judicial Magistrate, shall comply with the judgment promptly, in accordance with the provisions of law.