Harish Chander vs State Of Himachal Pradesh
2023 Latest Caselaw 17349 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No.122 of 2010

.

a/w Criminal Appeal Nos. 399 and

595 of 2010.

Reserved on : 31.10.2023.

Date of decision: 02.11.2023.

1. Criminal Appeal No. 122 of 2010.

    Harish Chander                                                .....Appellant.

                                    Versus

    State of Himachal Pradesh                                  .....Respondent.

    2. Criminal Appeal No. 399 of 2010.

    State of Himachal Pradesh                                     ......Appellant.


                                    Versus

    Harish Chander                                                .....Respondent.




    3. Criminal Appeal No.595 of 2010.





    State of Himachal Pradesh                                     ......Appellant.

                                    Versus





    Harish Chander and another                                    .....Respondents.

    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.

Whether approved for reporting?1 No For the Appellant : Mr. Ashwani Pathak, Senior Advocate with Mr. Dev Raj,

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

Advocate, for the appellant, in Criminal Appeal No. 122 of 2010 and for the respondent(s)) in

.

of 2010.

For the Respondent(s) : Mr. Yashwardhan Chauhan, Senior

Additional Advocate General with Ms. Sharmila Patial, Additional Advocate General, for the respondent-State in Criminal Appeal No.122 of 2010 and for the

appellant-State in Criminal Appeal Nos. 399 and 595 of 2010.

Mr. Vivek Sharma, Advocate, for r complainant-Sunil Kumar.

Tarlok Singh Chauhan, Judge

Since these three appeals arise out of a single

judgment passed by the learned Court below, therefore, they were

taken up together for consideration and are being disposed of by a

common judgment.

2. Criminal Appeal No. 122 of 2010 has been preferred by

appellant Harish Chander against the judgment whereby he has

been convicted and sentenced to undergo rigorous imprisonment for

a period of two years and to pay a fine of Rs.10,000/- for the offence

punishable under Section 307 of the Indian Penal Code (for short

"IPC") and in default of payment of fine to undergo simple

imprisonment for six months and further to undergo rigorous

imprisonment for one year along with fine of Rs.5,000/- under

Section 25(1B) of the Arms Act and in default of payment of fine to

.

undergo simple imprisonment for a period of three months.

3. Criminal Appeal No. 399 of 2010 has been filed by the

State for enhancement of the sentence, whereas, Criminal Appeal

No. 595 of 2010 has again been filed by the State against the

acquittal of accused Harish Chander and Archana Devi for the

offences under Sections 452, 325, 201 readwith Section 34 IPC.

4. The case of the prosecution, in brief, is that on

20.02.2001 at about 10.25 a.m., police were telephonically informed

by Dhani Devi about an incident in which a gunshot had been fired.

The police party comprising of H.C. Nand Lal, H.C. Gambhir Singh

and Constable Om Parkash proceeded towards the spot in a

government vehicle driven by Constable Govind Ram. They met

Dhani Devi on the way and advised her to go to the hospital. The

police party proceeded towards the spot and found Sunil Kumar in

an injured condition. The police arranged to send Sunil Kumar to

Zonal Hospital, Mandi. A telephonic call was made to the police

station informing that the injured had been sent to Zonal Hospital

and that some I.O. be sent to the hospital. Upon such telephonic

information, ASI Rajender went to the hospital and there he recorded

the statement of Sunil Kumar under Section 154 Cr.P.C., who

disclosed that relations between his family and the family of Gopal

Singh, that is the accused, were strained due to land dispute. He

.

further deposed that on that day at about 9.30 a.m. or 10.00 a.m.,

when he was returning home with a load of grass, then he saw that

Gopal Singh and his son Harish Chander were dismantling the walls

of his kitchen. His mother Dhani Devi was in the kitchen and while

he was moving forward to enter the kitchen, Harish Chander fired a

gunshot from behind resulting in an injury on his back, as a result

whereof, he fell down. Harish Chander and Gopal Singh then fled

away from the spot. The statement of Sunil Kumar was sent by the

I.O. to the police station whereupon an FIR, on the basis of the

statement, came to be registered. The I.O. also took into possession

blood stained piece of cloth and a burnt paper of the cartridge.

Harish Chander produced two guns to the police. Dhani Devi was

medically examined and the doctor found grievous injuries on her

person. Statements of the witnesses under Section 161 Cr.P.C.

were recorded which revealed that the accused persons had

trespassed into the house with preparation to commit the offence.

Harish Chander while in police custody made a disclosure statement

that he could produce an empty cartridge and pursuant to such

disclosure, an empty cartridge was recovered and seized by the

police. On 24.02.2001, Gopal Singh was arrested. On 25.02.2001,

Archana co-accused was also arrested. During the investigation, a

'danda' was produced by Gopal Singh to the police. The guns,

.

cartridge etc. were sent to the Ballistic Expert. The Expert, however,

found that the cartridge in question was not fired from either of the

guns. Police prepared the challan and presented the same to the

Court which committed the case for trial.

5. All the three accused were charged with offences under

Sections 307, 452, and 325 IPC. Accused Harish Chander was

additionally charged with offence under Section 25 read with Section

27 of the Arms Act. Later on, he was also charged with the offence

under Section 201 IPC.

6. Prosecution examined as many as 22 witnesses.

Thereafter, the accused persons were examined under Section 313

Cr.P.C. Their defence was that due to a land dispute, relations

between the parties were inimical and claimed that a false case had

been foisted on them. Rather, it was accused Gopal Singh, who

was mercilessly beaten up by the complainant party. Be it stated

that a cross FIR was also lodged by the accused persons, who

examined two witnesses in defence.

7. The learned Court below after recording evidence and

evaluating the same acquitted accused Harish Chander and

Archana Devi, whereas, accused Harish Chander was convicted for

the offence under Section 307 IPC and Section 25 (1B) of the Arms

Act.

.

8. It is vehemently argued by Shri Ashwani Pathak,

learned Senior Advocate assisted by Shri Dev Raj Advocate that

once the Ballistic Expert had clearly opined that the cartridge had

not been fired from either of the two guns that were taken into

possession by the police during the course of the investigation, then

his client could not have been convicted under Section 307 IPC or

for that matter under any other Sections of the IPC. Whereas, Shri

Yashwardhan Chauhan, learned Senior Additional Advocate General

and Shri Vivek Sharma, learned counsel for the complainant, who

was permitted to assist the learned Senior Additional Advocate

General, would vehemently argue, assuming that the recovery of the

weapon used is not established or proved, then the same cannot be

a ground to acquit the accused when there is direct evidence of the

eye witnesses. Recovery of the weapon used in the commission of

offence is not a sine-qua-non to convict the accused, more

particularly, when there is a direct evidence in the form of four eye

witnesses, then in the absence of recovery of weapon of offence, the

accused can still be convicted.

9. Since, the State has filed the instant appeals being

Criminal Appeal No. 399 of 2010 and 595 of 2010 for enhancement

of the sentence and against the acquittal of the co-accused,

therefore, this Court is required to go into the entire gamut of the

.

case.

10. The learned Court below has correctly framed the

following points for determination:

"1. Whether the prosecution has proved that the accused persons in furtherance of common intention trespassed into

the dwelling house of Kishan Singh after having made preparations for causing hurt?

2. Whether the prosecution has proved that in

furtherance of the common intention of all, accused Harish Chander fired the gun at Sunil Kumar with such intention or knowledge and under such circumstances that if by that act

death was caused, they would have been guilty of murder?

3. Whether prosecution has proved that the accused

persons in furtherance of their common intention caused grievous hurt to Smt. Dhani Devi?

4. Whether prosecution has proved that the accused

Harish Chander carried gun of his father besides his own gun and used the gun for unlawful purpose?

5. Whether prosecution has proved that accused Harish Chander knowing that an offence under Section 307 IPC had been committed, caused dis-appearance of such offence?"

"1. Whether the prosecution has proved that the accused persons in furtherance of common intention trespassed into the dwelling house of

.

Kishan Singh after having made preparations for

causing hurt?

11. Admittedly, there were only four witnesses of the

occurrence. Out of them, PW-13 and PW-14 are the witnesses of

the whole occurrence, whereas, PW-1 and PW-3 are witnesses of

the part of the occurrence only. PW-3 witnessed the earlier part of

the incident, whereas, PW-1 witnessed the so-called later part of the

incident.

12. As per PW-1 Sunil Kumar, on 20.02.2001 at about

9.30/10.00 a.m., when he was returning from his fields with a load of

grass and had reached near the cowshed, he then saw accused

Gopal Singh, Harish Chander and Archana damaging the walls of

his kitchen. However, he did not state that they were inside the

kitchen. He further stated that his mother was near the door of the

kitchen and when he tried to enter the kitchen, at that moment,

Harish Chaner fired at him. Nowhere has this witness stated that

Harish Chander had fired after entering the kitchen or after entering

any other part of the dwelling house. The learned Court below has

rightly concluded that common intention to trespass into the dwelling

house has not been established in his testimony.

13. It needs to be noticed that it was on the basis of

statement of PW-1 under Section 154 Cr.P.C. Ext. PW-1/A that an

.

FIR came to be lodged and in that statement, there is no mention of

Archana being at the spot what to talk of her entering the dwelling

house.

14. PW-3 Prabhu Ram stated that he had gone to the

house of the complainant party to collect his wages and one

Phamphi Ram (PW-14) was also with him. He stated that while he

and Phamphi Ram were there, they saw accused Gopal Singh

coming there, who in turn, asked both of them i.e. witnesses Prabhu

Ram and Phamphi Ram to leave the place. Gopal Singh was having

a 'danda' in his hand. The witness further stated that due to fear, he

left the place. While leaving the place, he saw Harish Chander at

the spot, who was carrying two guns in his hands. Even this witness

did not state about the entry of the accused into the house of the

complainant. What would further be noticed is that even this witness

did not make a mention of the presence of Archana at the spot.

15. PW-13 Dhani Devi is the mother of Sunil Kumar. She

stated that her sons Sunil Kumar and Naveen were away to fetch

grass at the time when Prabhu Ram and Phamphi Ram had come

to their house to collect their wages. She further stated that accused

Gopal Singh had come there with a 'danda' and asked Prabhu Ram

and Phamphi Ram as to why they had come there and asked them

to leave. Gopal Singh started advancing threats and also hurled

.

abuses at her. Gopal Singh then called his son Harish Chander and

daughter Archana, who came there and at that time Archana was

having stick while Harish Chander had two guns and on seeing

them, Prabhu Ram left. The witness further stated that out of fear,

she entered her house. Gopal Singh also entered the house and had

a scuffle with her. Pamphi Ram entered the house and tried to

rescue Dhani Devi but he was given a push by the accused Gopal

Singh. Dhani Devi neither stated about the entry of accused

Archana nor Harish Chander into their house and only made a

mention of Gopal Singh, who unfortunately is no more in the land of

living.

16. Now the entire case of the prosecution rests on the

testimony of PW-14 Phamphi Ram, who stated that he and Prabhu

Ram had gone to the house of Dhani Devi to collect wages. Gopal

Singh came there with a stick and started advancing threats to them

as also Dhani Devi. He further stated that thereafter Gopal entered

the verandah of Dhani Devi and gave beating to her. He further

stated that he went inside the house to save Dhani Devi from Gopal

Singh but he was pushed away, and as a result whereof, he fell

down. He came out and saw that Prabhu Ram had left. The witness

also stated that he saw Archana and Harish Chander coming with

stick and guns. But, then again he did not state either about Harish

.

Chander or for that matter Archana having entered the house.

17. On the basis of the aforesaid evidence, no fault can be

found in the findings of the learned Court below when it negates the

plea of trespass against Harish Chander and Archana.

2. Whether prosecution has proved that in furtherance of common intention of all, accused Harish Chander fired gun at Sunil Kumar with such intention or knowledge and under such

circumstances that if by that act death was caused, they would have been guilty of murder?

18. As per the prosecution case, accused Harish Chander

came at the site of occurrence with two guns and fired from one of

them at Sunil Kumar causing injuries to him on his back, right hand

and arm. However, as observed above, the opinion rendered by the

Ballistic Expert does not support the case of the prosecution as it

has been categorically found by the Ballistic Expert that the cartridge

recovered in this case had not been fired by either of the guns.

19. Learned Senior Additional Advocate General and

learned counsel for the complainant would argue that since there

was overwhelming evidence of the eyewitnesses regarding fire of

the gunshot, therefore, the mere fact that the opinion of the Ballistic

Expert does not support the case of the prosecution is of no avail

because if there is direct evidence in the form of eyewitnesses, then

even, in the absence of recovery of weapon and non-examination of

.

Ballistic Expert, the accused can be convicted.

20. Strong reliance is placed on the recent judgment of the

Hon'ble Supreme Court in State Through the Inspector of Police

versus Laly alias Manikandan and another Etc. AIR 2022 SC

5034, more particularly, the observations contained in para-7

thereof, which reads as under:

"7. The submission on behalf of the accused that as the

original informant - Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been

proved and there is serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not

examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eyewitness to

the occurrence at both places. Similarly, assuming that the recovery of the weapon used is not established or proved

also cannot be a ground to acquit the accused when there is direct evidence of the eyewitness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is direct evidence in the form of an eye witness, even in the absence of recovery of the weapon, the accused can be convicted. Similarly, even in the case of some contradictions concerning the timing of lodging the FIR/complaint cannot be a ground to acquit the

accused when the prosecution case is based upon the deposition of an eye witness."

.

21. It needs to be noticed that the learned Court below

while convicting the accused Harish Chander has observed that all

the witnesses of the occurrence have stated in one voice that it was

accused Harish Chander, who had fired a gunshot and there can be

a possibility of the accused holding some other gun and producing

some other gun to the police. However, the learned Court below

completely erred and was totally unmindful of the fact that he was

dealing with a criminal case where offence has to be proved beyond

reasonable doubt as against preponderance of probabilities. The

learned Court below was totally oblivious of the fact that it was the

prosecution witnesses themselves that had disputed the guns

exhibited in this case to be the same that were being held and

thereafter allegedly used by Harish Chander to fire the gunshot.

22. PW-1 in his deposition (after the parcel had been

opened) stated as under:

"guns Exts. P6 and P7 are also the same which the accused persons were carrying at the time of incident."

Whereas, PW-3 Prabhu Ram stated as follows:

"When I was leaving the place, I noticed accused Harish Chander, present in the court, coming with two guns in his hand."

23. Now adverting to the testimony of Dhani Devi, mother of

Sunil Kumar (PW-1), she in her statement has categorically stated

.

as follows:

"guns Exts. P6 and P7 contained in the parcel are the same

which were with accused Harish."

The other so-called eye witness PW-14 Phamphi Ram could not

identify the guns and stated as follows:

"I am not in a position to identify the stick Ext. P8 and guns Ext. P6 and P7 as enough time has elapsed."

24. Once, the complainant party itself did not dispute the

guns allegedly to have been used in the commission of the offence,

then we really fail to understand how the learned Court below could

have carved out an entirely different case from the one set up by the

prosecution to convict accused Harish Chander.

25. As regards the judgment of the Hon'ble Supreme Court

in Laly alias Manikandan's case (supra), obviously, there can be

no quarrel with the same. However, it would be noticed that in that

case there was no recovery of the weapon of offence. Whereas, in

the present case, not only the recovery of weapon but its alleged

use has been sought to be established by the prosecution and as

per the prosecution's case these alone were very two guns that were

used in the commission of the offence. But, unfortunately, the oral

testimonies of these witnesses are completely demolished by the

scientific evidence.

.

26. We are not oblivious that where the Court finds the

witnesses to be reliable and trustworthy, the evidence of

eyewitnesses gets corroboration from other corroborating witnesses

including seizure witnesses and doctor, Ballistic Expert, the

conviction still can be based even when there is no recovery of

weapon of attack because it would be too much to expect production

of corpus delicti in each and every case and non-production or

recovery would not in all cases be fatal to the prosecution and would

depend upon the facts and circumstances of each case.

27. However, it needs to be emphasized that in cases

where the injuries are caused by firearms, the opinion of the Ballistic

Expert is of considerable importance especially where both firearm

and crime cartridge, as in the instant case, are recovered during the

investigation to connect the accused with the crime.

28. We are also not unmindful of the fact that here the

entire case of the prosecution hinges upon the testimonies of near,

relations of the victim, who may be interested in securing the

conviction of the accused persons and, therefore, their testimonies

have to be examined and analyzed with utmost care and caution

and it is only if their testimonies are found to be truthful and worthy

of credence, then the plea of guilt can be answered without looking

for anything more.

.

29. Here, it would be noticed that the testimony of PW-3,

who is supposed to be a labourer, is hardly of any avail. As regards

evidence of Phamphi Ram (PW-14), he is a witness of the

complainant in the civil case and his testimony otherwise does not

inspire much confidence regarding his presence at the spot because

instead of fleeing away from the spot he would state that he had

gone to the second storey of the house which is highly improbable.

30. Apart from the above, it needs to be noticed that it is the

specific case of the prosecution as has come out in the testimony of

PW-13 that accused Harish had fired a gunshot at Sunil from a

range of about 15 feet. If that be so, we really wonder how the

gunshot would not have proved to be fatal having been fired from

such a close distance and why and how only superficial injuries were

found on the person of injured Sunil Kumar.

31. This assumes importance because it is the case of the

defence that it was the brother of Sunil, namely Naveen (who could

have been the best witness but was not examined) who was holding

a gun and it was this gun which was fired accidentally and it was for

this precise reason that Dhani Devi while imparting information

entered at Sr. No.15 of the 'Roznamcha' Ext. PW-11/B had only

intimated regarding the fire incident having taken place without

naming Harish Chander. If at all, Harish had fired, we really wonder

.

why Dhani Devi would not have explicitly and categorically named

him rather than making a simple reference to a gunshot being fired.

32. This further assumes importance because while hearing

arguments, we ourselves had called for the production of the case

property and after seeing the same, we had recorded in order dated

17.10.2023 as follows:

"HHC Dalip Singh, P.S. Sadar, Mandi, has produced Ext. P-

11, bearing three seal impressions of seal 'N', which are found to be intact. The parcel has been opened in the open Court.

The Ext. P-11, which according to the prosecution, are remnants of the burnt cartridge, but having perused the same, they are parts of the cartridge which are not found to

be burnt. The Ext. P-11 is ordered to be re-sealed with one Court seal.

The case property produced in the Court is ordered to be returned.

As prayed for, list on 31.10.2023."

33. Thus, the prosecution has miserably failed to prove that

in furtherance of common intention of all, accused Harish Chander

fired a gunshot at Sunil Kumar with such intention or knowledge and

under such circumstances that if by that act death was caused, they

would have been guilty of murder.

3. Whether prosecution has proved that the accused persons in furtherance of their common intention caused grievous hurt to Smt. Dhani Devi?

.

34. In order to establish its case of proving the injuries on

the person of Dhani Devi, it is her testimony which alone is most

material. In her deposition, she stated that Gopal Singh had first

come to the spot and was having a 'danda' in his hand. She did not

state that she was given beatings with that 'danda', Rather, in the

cross-examination, she categorically stated that no beatings were

given to her by Gopal Singh because Phamphi Ram had intervened.

She nowhere has deposed in her testimony that Harish Chander had

given any beatings to her.

35. According to this witness, it was Archana, who had

given blows with stick on her hands and other parts of the body. But,

then she is contradicted by Phamphi Ram, who in his deposition

stated that the beatings were given with 'danda' by Gopal Singh.

Phamphi Ram further stated that there was a scuffle between Dhani

Devi and Gopal Singh which continued for about 30-45 minutes. In

such circumstances, the learned Court below was right in observing

that now Gopal Singh is dead, the possibility of Dhani Devi to rope in

and fasten the liability on Archana could not be ruled out.

36. Even otherwise, the injuries on the person of Dhani

Devi were found to have been caused by a blunt weapon. In cross-

.

examination, PW-8 doctor Renu Behl stated that the injuries were

possible in a chase and by fall. Therefore, it is not necessary to

assume that the injuries found on her person were infact caused by

a 'danda' only. This assumes importance because even the

accused party too had sustained injuries which have gone

unexplained. This is evidently clear from the medical examination of

Archana which was conducted on the same day as that of Dhani

Devi. This medical examination like in the case of Dhani Devi was

also got done by the police. Gopal Singh was also medically

examined. Their MLCs are Exts. DC and DE, respectively. The

case of the defence is that the complainant party had given beatings

to Gopal Singh and Archana and an FIR regarding this incident Ext.

DD had been lodged. The I.O. in his cross-examination had

admitted that Archana and Gopal Singh remained admitted in

hospital for two days. Therefore, in such circumstances, the learned

Court below has rightly observed that the injuries on the person of

the accused should have been explained and, if not explained, the

accused persons can definitely plead that the injuries on the person

of the complainant were caused in self-defence.

4. Whether prosecution has proved that the accused Harish Chander carried gun of his father besides his own gun and used the gun for unlawful

.

purpose?

37. It has come in the evidence that Harish was carrying

two guns at the time of occurrence and it is for this precise reason

that two guns were taken into possession during the investigation. It

is further not in dispute that the licence of one of the guns was in the

name of Harish Chander, whereas, the other was in the name of his

father Gopal Singh. So, accused Harish Chander could not have

carried more than one gun and was found carrying two guns with

himself and the one was without licence, in such circumstances, the

learned Court below has rightly convicted the accused Harish

Chander under Section 25(1B) of the Arms Act for which there is

already prosecution sanction Ext. PW-7/A.

5. Whether prosecution has proved that accused

Harish Chander knowing that an offence under Section 307 IPC had been committed, caused dis- appearance of such offence?"

38. The case of the prosecution is that after firing a

gunshot, accused Harish Chander had hid the empty cartridge in

bushes and thereby he tried to destroy the evidence of the offence

committed by him. But, recovery of the empty cartridge from bushes

vide recovery memo Ext. PW-14/A of which Phamphi Ram and

Daya Ram were witnesses has been found to be doubtful by the

learned Court below. The reason being that Tek Chand (PW-4), who

.

is a witness of the disclosure statement Ext. PW-4/A, in his cross-

examination, stated that he did not know when his signatures were

obtained and when the signatures of Harish Chander were taken on

the memo Ext. PW-4/A thereby making the disclosure statement

itself doubtful and consequential recovery also doubtful.

39. The learned Court below has rightly observed that

accused Harish Chander cannot be convicted for destroying

evidence of offence committed by himself as Section 201 IPC

applies to a person, who tries to screen the principal or actual

offender and not a person causing disappearance of his own crime.

40. A Division Bench of this Court in Tej Singh versus

State of Himachal Pradesh 2000 (3) SLC 82 observed as under:

"26. The learned Sessions Judge also convicted the accused under Section 201 IPC on the ground that the

accused remained present on the spot after the occurrence and when the other persons gathered at the spot, left the place due to fear, the dead bodies of Baba Gian Chand and Baba Bhaghot were left unattended by the persons near the grave but when the Police, reached the spot and noticed that the dead bodies of both Babas were not found there and that grave had been covered with soil, the Police sought the permission of Sub Divisional Magistrate, Chamba (PW-

14) to dig out the grave and after doing so, the bodies of

both Babas were found buried inside the grave and individually this was found strong circumstance against the

.

accused to infer that two dead bodies of Babas were buried

by the accused and on the basis of this circumstance, the accused was held guilty under Section 201 IPC.

27. We are not inclined to accept the said reasoning of the learned Sessions Judge holding the accused guilty of the offence under Section 201 IPC. This can be one of the additional circumstance in the link of the circumstances

relied upon by the prosecution and accepted by the learned Sessions Judge in his order of conviction passed against the accused under Section 302 IPC, but the accused

cannot be held guilty for the commission of the offence

under Section 201 IPC. Section 201 reads as under:

"201. Causing disappearance of evidence of offence, or giving false information to screen offender.?

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal

punishment, or with that intention gives any information respecting the offence which he knows or

believers to be false."

28. From the bare reading of the provisions of Section 201

IPC, it makes clear that the provisions will apply in the case of the accused who wanted to cause disappearance of the evidence of offence committed by some other person or caused any offence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false and thus this Section will not apply to the person who is an accused himself of the crime.

Therefore, the learned Sessions Judge has erroneously held the accused guilty under Section 201 IPC and his

.

conviction and sentence under Section 201 IPC shall stand

accordingly set aside. The fine imposed upon the accused under Section 201 IPC if deposited by him shall be

refunded to him."

41. On a reappraisal and reassessment of the entire

evidence on record and for the reasons stated above, we find that

the learned Court below has erred in convicting the accused Harish

Chander under Section 307 IPC and to that extent, the findings are

set aside. Rest of the findings regarding the acquittal of accused

Archana and Harish Chander for the other offences are fully justified

and, therefore, warrant no interference.

42. Consequently, both the appeals filed by the State being

Criminal Appeal No. 399 of 2010 titled State of Himachal Pradesh

vs. Harish Chander and Criminal Appeal No.595 of 2010 titled State

of Himachal Pradesh vs. Harish Chander and another are dismissed

and Criminal Appeal No. 122 of 2010 titled Harish Chander vs.

State of Himachal Pradesh is partly allowed by setting aside

conviction and sentence for the commission of offence under

Section 307 IPC.

43. As regards the offence under Section 25(1B) of the

Arms Act, we find from the records that the incident is alleged to

have taken place more than 22 years back on 20.02.2001.

Therefore, we deem it appropriate to modify the sentence imposed

.

by the learned Court below to the period already undergone and by

increasing the fine amount from Rs. 5,000/- to Rs.15,000/- and in

default of payment of fine, the accused Harish Chander to undergo

simple imprisonment for a period of one month. Ordered accordingly.

44. Pending application(s), if any, also stands disposed of.

                                             (Tarlok Singh Chauhan)
                    r                                 Judge

                                                 (Ranjan Sharma)
                                                     Judge
    2nd November, 2023.


    (krt)