Naresh Kumar vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—The present appeal has been filed by Appellant Naresh Kumar, who was tried in case FIR No. 208 dated 27.11.1999, registered at Police Station Kharkhoda, under Sections 307, 506, 120-B read with Section 34 IPC and Section 25 of the Arms Act, 1959 (hereinafter referred to as �the Act�).

The Court of Additional Sessions Judge, Sonepat, vide its judgment dated 15.1.2003, acquitted the Appellant for the offence u/s 307 IPC but convicted u/s 25 of the Act and vide a separate order of even date, sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of `, 2,000, in default whereof to further undergo rigorous imprisonment for a period of three months.

The criminal proceedings, in the present case, were set into motion on the statement Ex.PE, made by PW.7 Ved Pal. In his statement, Ved Pal stated that he was a resident of village Chinauli and was doing agricultural work. On 27.11.1999, he along with Rampal and Azad, was going to Kharkhoda for personal work. His uncle Bhagat Singh was murdered by the present Appellant Naresh son of Anoop Singh and Anil alias Bantu, who were on bail. While they were waiting at Scooter Stand, Kharkoda, for returning to their village, at about 5.00 P.M. a white coloured Maruti Car came there. Appellant Naresh, armed with country made pistol, alighted from the car and caught hold of the complainant by his neck and dragged him towards the road. The Appellant was accompanied by Jagta son of Ranbir and Anil alias Bantu. Thereafter, Naresh had fired a shot with an intent to kill the complainant but the same had missed the target. The driver of the said car kept sitting therein. It is stated that the driver of the car can be identified by the complainant lateron in case he appeared before him. Meanwhile, Rampal son of Jai Narayan and Azad came at the spot. On seeing the witnesses, the accused ran away from the spot in the Maruti Car.

The above said FIR was investigated and report u/s 173 Code of Criminal Procedure was submitted. The Appellant along with Sanjay, Naresh son of Balbir and Jaibir were committed to the Court of Sessions Judge, Sonepat, for their trial under Sections 307, 506, 120-B read with Section 34 IPC. On 6.1.2003, the trial Court came to a conclusion that no incriminating evidence has emerged against Sanjay son of Kartar Singh, Naresh son of Balbir and Jaibir son of Sukhbir Singh. Therefore, recording of their statements, u/s 313 Code of Criminal Procedure., was dispensed with and they were acquitted of the charges. However, the trial proceeded against the present Appellant, namely Naresh son of Anoop Singh.

It will be pertinent to note that Ved Pal, complainant, appeared in the trial Court as PW.7 and resiled from his previous statement by stating that no injury was caused by the Appellant in the occurrence. PW.8 Rampal has also resiled and has not attributed any role to the Appellant. Similarly, PW.9 Azad has also not supported the prosecution case. PW.10 Mool Chand, Assistant Sub Inspector, stated that on 15.12.1999, he had arrested the present Appellant. He was produced before the Illaqa Magistrate and sought his police remand. On 17.12.1999, the Appellant was interrogated by him, in the presence of PW.8 Rampal and PW.11 Kanwal Singh, Head Constable. During the course of interrogation, the Appellant had suffered a disclosure statement Ex.PH to the effect that he had kept concealed one pistol in his residential house in the iron box. In response to his disclosure statement, he led the police party to his house and got recovered the pistol Ex.P1 and recovery memo was attested by PW.8 Rampal and PW.11 Kanwal Singh, Head Constable. PW.11 Kanwal Singh, Head Constable, has supported the testimony of PW.9 Mool Chand, Assistant Sub Inspector. He has also stated that on 17.12.1999, the Appellant had suffered a disclosure statement Ex.PH and got recovered pistol Ex. P1 from his house. He has also proved his signatures on recovery memo Ex.PJ. PW.1 Rajpal, Head Constable, stated that on 17.12.1999, he was posted as Moharrir Head Constable in Police Station, Kharkhoda.

On that day, PW.9 Mool Chand, Assistant Sub Inspector, had deposited one country made pistol with him. PW.2 Ram Parkash, Head Constable, stated that he had deposited the pistol in Forensic Science Laboratory, Madhuban. PW.3 Om Parkash, Head Constable, has deposed regarding recovery of car at the instance of Naresh son of Balbir. PW.4 Mahabir Singh, Inspector, had prepared a report u/s 173 Code of Criminal Procedure PW.5 Satbir Singh, Ahlmad to District Magistrate, Sonepat, proved the sanction order Ex.PC. PW.6 Inder Pal, Draftsman, had prepared scaled site plan Ex.PD.

Admittedly, in the present case, all the eye witnesses have turned hostile and have not stated that the Appellant had used any fire arm in the occurrence, which led to acquittal of the Appellant for the offence u/s 307 IPC. So far as conviction of the Appellant for the offence u/s 25 of the Act is concerned, it is based upon the evidence of official witnesses PW.10 Mool Chand, Assistant Sub Inspector and PW.11 Kanwal Singh, Head Constable. Rampal, an independent witness, appeared as PW.7 and stated that accused Naresh had neither suffered any disclosure statement in his presence, nor got effected recovery of the pistol Ex.P1. Thus, the testimony of an independent witness has belied the deposition of the official witnesses.

In these circumstances, it will not be safe to sustain conviction of the Appellant for the offence u/s 25 of the Act, especially when it has come in the evidence that the house was not lying locked and family members of the Appellant were sitting in the house. Even otherwise, the prosecution story seems improbable. The case was registered against the Appellant on 27.11.1999. He was arrested on 15.12.1999, after a period of about 18 days. The police party had visited house of the Appellant on 17.12.1999. Since the accused knew that he was to be arrested for the offence u/s 307 IPC, he would not keep the weapon in the safe custody, to be handed over to the police lateron. Thus, the possibility of recovery of weapon as a padding cannot be ruled out.

Hence, the present appeal is accepted. The conviction and sentence, awarded upon the Appellant, are set aside and he is acquitted of the charge.