Rajiv Kumar @ Raju vs State of Uttarakhand

Umesh Chandra Dhyani, J.—PW1 Matwar Singh wrote a complaint (Ex.Ka-1) to S.O., Police Station Kankhal, District Haridwar on 18.04.1991 at 10:40 PM, which was registered as case crime No. 44/1991 against two unknown persons for the offence punishable u/s 302 IPC.

Investigation began on the basis of said first Information report. After investigation of the case, a charge-sheet was submitted against the accused persons, namely, Neeraj Sharma, Rajiv Kumar @ Raju, Pravesh Kumar and Dr. Sukhpal Singh for the offences punishable under Sections 302 & 120-B IPC. The case was committed to the Court of Sessions. When the trial began and prosecution opened it''s case, charges against the accused persons, namely, Neeraj Sharma, Rajiv Kumar @ Raju, Pravesh Kumar and Dr. Sukhpal Singh were framed for the offences punishable under Sections 302 read with 34 IPC & 120-B IPC, to which they pleaded not guilty and claimed trial. A separate charge-sheet was also submitted against Rajiv Kumar @ Raju for the offence punishable u/s 25 Arms Act. This connected case was also committed to the court of Sessions. Sessions Trial Nos. 246/1995 and 250/1995 were clubbed together. Charge against Rajiv Kumar @ Raju was framed for the offence punishable u/s 25 Arms Act, to which he pleaded not guilty and claimed trial.

PW1 Matwar Singh, PW2 Pawan Kumar, PW3 Constable Shyam Singh, PW4 Head Constable Rishi Pal, PW5 Dr. D.P. Singh, PW6 Tayyab Ali, PW7 Dr. Habiburahman, PW8 Banshi Lal, PW9 Dr. Yashwant Singh Bisht, PW10 Dr. Jagmohan Singh Rawat, PW11 Narayan Datt Negi, PW12 Dr. S.P. Singh, PW13 Basant Kumar Gairola, PW14 Baggha Ram, PW15 Baisakh Singh, PW16 Thakur Datt Pant, PW17 Dr. V.K. Chaudhary, PW18 Satya Dev Mishra, PW19 Jeewa Narid Pant, PW20 Ilam Chand, PW21 Raghubir Singh and PW22 Dr. Harbir Singh were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons u/s 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence.

After conclusion of the trial, learned Additional Sessions Judge/4th F.T.C., District Haridwar, vide judgment and order dated 17.12.2002, exonerated the accused persons of the charges under the Indian Penal Code. Accused-appellant Rajiv Kumar @ Raju was, however, found guilty and was convicted of the offence punishable u/s 25 Arms Act. He was directed to undergo rigorous imprisonment for 3 years. Aggrieved against the same, the present criminal appeal was preferred by the appellant.

According to FIR, PW1 was called by Dr. Gairola and accordingly he reached at Chief Medical Officer''s (CMO''s) residence at Vishnu Garden, Kankhal on 18.04.1991 at around 7:30 PM. The CMO was not available at his residence. PW1 kept on waiting for him outside his residence. Two unknown persons came on motorcycle at 8:30 PM and enquired from PW1 about CMO. PW1 replied that the CMO was not available at his residence. The motorcyclists returned. The CMO came to his residence at around 10:15 PM. He entered into his house. PW1 followed him. In the meanwhile, those two motorcyclists also came. They exchanged pleasantries with CMO. These motorcyclists fired upon the CMO. One of the accused was armed with pistol. PW1 was frightened. Accused persons fled away on motorcycle. PW1 could identify the assailants. The CMO was shot dead.

Subsequently, on 24.04.1991 on the basis of the information given by the informer and in the presence of witnesses, a factory-made pistol 450 bore was recovered by the police from the possession of accused-appellant Rajiv Kumar @ Raju near Eidgah within the jurisdiction of police station Kankhal. Rajiv Kumar @ Raju was accompanied by his companion Pravesh Kumar, but nothing incriminating was recovered from his possession. According to recovery memo (Ex.Ka-5), accused Rajiv Kumar @ Raju could not produce the licence to keep such factory-made pistol Arrest-cum-recovery memo was prepared. Recovery of such unauthorized arms from the possession of Rajiv Kumar @ Raju was evidenced by PW22 and one G. Shaukat @ Bhagat, although he (G. Shaukat @ Bhagat) was not examined by the prosecution.

But a perusal of evidence brought on record suggests that even the offence punishable u/s 25 Arms Act was not proved against the accused-appellant.

PW1 did not say anything about the recovery of pistol from the possession of accused-appellant. PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW19, PW20 and PW21 did not support the prosecution story and were declared hostile. PW17 conducted the postmortem on the dead body of the deceased. PW18 was the signatory to the inquest memo. Even he did not support the prosecution story in it''s totality.

The only police witness who claimed the recovery of factory-made pistol and 5 live cartridges from the possession of accused Rajiv Kumar @ Raju was PW22 S.I. Harbir Singh. The report of Forensic Sciences Laboratory too did not corroborate the prosecution story. PW22 was the Investigating Officer of the case registered u/s 302 IPC. He is said to have recovered a factory-made pistol and 5 live cartridges from the possession of accused-appellant in the presence of other witnesses, including a public witness. Public witness G. Shaukat @ Bhagat was not examined on behalf of the prosecution. No other police witness was examined to corroborate the testimony of PW22. There were many infirmities in the evidence of PW22. His evidence was not trustworthy. It is difficult to believe that whatever PW2 said before the trial court was correct. The testimony of PW2 should be taken with a pinch of assault. The prosecution story, as regards the charge u/s 25 Arms Act, cannot be believed on the basis of uncorroborated fragile evidence of PW22.

Learned trial court committed a manifest error in relying upon the evidence of PW22. Learned trial court also committed a mistake by stating in internal page 11 of the impugned judgment that accused Rajiv Kumar @ Raju confessed his guilt, as regards recovery of factory-made pistol and cartridges from his possession, in his statement u/s 313 Cr.P.C. In fact, accused-appellant nowhere confessed recovery of factory-made pistol and cartridges from his possession in his statement u/s 313 Cr.P.C.

In a nutshell, there was hardly any evidence on record to establish the charge u/s 25 Arms Act against the accused-appellant. The impugned judgment and order, therefore, cannot sustain in so far as the conviction of the appellant u/s 25 Arms Act is concerned.

The criminal appeal preferred by the appellant is, therefore, allowed. The impugned judgment and order is set aside in so far as the conviction and sentence of appellant Rajiv Kumar @ Raju for the offence punishable u/s 25 Arms Act is concerned. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender.

Let the lower court record alongwith a copy of the judgment be sent to the Court below for compliance.