Punjab-Haryana High Court
Sandep vs State Of Haryana on 22 February, 2021
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1340-SB-2007
Decided on: 22.02.2021
Sandeep alias Bagri ....Petitioner
Versus
State of Haryana ....Respondent
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr.Lokesh Sharma Advocate, for the appellant.
Mr.Shivendra Swaroop, AAG, Haryana.
(The proceedings are being conducted through video conferencing,
as per instructions.)
G.S. SANDHAWALIA, J. (Oral)
The present appeal has been filed against the judgment dated
13.07.2007, passed by the Addl.Sessions Judge-II, Jind whereby the
appellant has been held guilty and sentenced under Section 25 of the Arms
Act, to undergo imprisonment for a period of one year and a fine of
Rs.1000/- and in default, to further undergo rigorous imprisonment for 15
days. It is pertinent to notice that apart from the appellant-Sandeep, 2 other
accused, Subhash and Kuldeep were also held guilty and convicted and it
has been informed that no appeal has been preferred by them.
The Trial Court had tried 9 persons who had faced trial as
accused in FIR No.88/2005 dated 02.06.2005, registered under Sections
302, 307, 148, 149 & 216 IPC and Section 25 of the Arms Act for the
offences under IPC whereas conviction has been recorded against the
present appellant, Subhash and Kuldeep on account of the fact that there
was sufficient evidence against them since one pistol of .315 bore along
with one live cartridge and one empty cartridge were taken into possession
vide recovery memo Ex.PV/1, in pursuance of the disclosure statement
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(Ex.PM). Similarly, against Subhash and Kuldeep also, recovery of one
.315 pistol and cartridges had also been effected. Resultantly, in the
absence of any permit or licence for retaining the pistol and live
cartridges, the conviction had been recorded.
Mr.Lokesh Sharma, Legal Aid Counsel, has taken support of
the record of the case and submitted that the recovery memo (Ex.PM/1)
was not witnessed by any independent witness as pistol which was
recovered was kept concealed on the Hissar-Tohana-Hisar road near a
pond and therefore, the same does not exhibit any confidence and the
appellant has wrongly been convicted, having been falsely implicated by
the investigating agency.
State Counsel, on the other hand, has opposed the said
argument on the ground that there was no justification for the
investigating agency to falsely implicate the appellant.
A perusal of the record would go on to show that the FIR
was lodged regarding the incident which took place on 01.06.2005 at
Narwana. Suresh Kumar, the injured had given statement (Ex.PA) who
alleged that on 01.06.2005 at about 7.20 PM, he along with his brother,
Jaipal were going on the motorcycle to their house from their shop and
when they reached near LIC office behind Arya School, fire shot was
given from behind. He found that one motorcycle was following them
which had then overtaken them and stopped in front of them and on
account of the same, both had fallen down. Jagdish @ Kunti who was
one of the 3 occupants of the motorcycle, had fired a shot which had hit
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at the back of his brother. The other two companions fired the shot
which hit his brother in his head and the other shot hit on the right arm of
the complainant and thereafter, his uncle Kunti had also come. On raising
alarm, the accused person along with the other 2 companions riding on
the motorcycle fled in the dark.
The deceased was taken to the Government Hospital,
Narwana in the Government Jeepsy of the police where he was brought
for treatment and was declared dead. The other assailant was named as
Subhash and the third person was a young boy of medium height who
could be recognized if produced. The reason for the incident is that they
used to sell food-grains at Purchase Centre at Danoda and accused, Kunti
had been demanding ransom from them which they had refused and
therefore, the incident had taken place.
It is pertinent to notice that the present appellant was roped
in on the basis of the investigation done by PW-22, Som Raj, Inspector
who had received a message on the telephone that firing had taken place
in Professor Colony near old LIC office Narwana. He had taken both the
injured in his jeep for treatment in the Government Hospital. As per the
information from investigation, it had come to his notice that murder had
been committed by 8 persons, who were all charge-sheeted for the said
incident. It, however, does not come forth from the statement as to from
where the alleged information it was elucidated that the appellant was
involved. In pursuance of the said suspicion, the appellant was arrested
by the same person, Som Raj and interrogated and allegedly suffered a
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disclosure statement on 20.06.2005 (Ex.PM). In pursuance of the same,
recovery was done of the pistol of .315 bore as per recovery memo
(Ex.PM/1) along with 2 live and 1 empty cartridges. Resultantly, sketch
of the pistol was also prepared as Ex.PM/3.
A perusal of the statement of PW-12, Ram Kishan, ASI
would go on to show that on the disclosure statement being made, pistol
which was concealed at the Hisar Tohana road had been recovered along
with the cartridges by procuring the police remand of the appellant by the
said official. The disclosure statement and the recovery memo was duly
attested by him and EHC, Wazir Singh. He further stated that the
Investigating Officer had prepared the site-plan of the pistol. In cross-
examination, the said official admitted that the disclosure statement
(Ex.PM) was recorded in the police station and that the place of recovery
was assessible to every one and no independent witness had been joined
at the time of recovery and no public person joined as the villagers had
shown their inability. He also stated that the IO had not given any notice
to any of the witnesses and no action was taken against the witnesses and
neither the Sarpanch and Lamberdar had been called from the village.
This was inspite of the fact that they had taken 2 hours at the place of
recovery and they had reached the police station at about 5 PM. It is also
the case of the said official that the disclosure statement was made at 7.30
AM in the morning.
Thus, this aspect seems to have missed the notice of the Trial
Court who proceeded to convict the appellant solely on the basis of the
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disclosure statement and the recovery memo. The aspect that there was
no other independent witness against the appellant and also the fact that
the recovery was from an open place adjoining the main highway but still
the investigating agency did not associate any independent person to
witness the recovery of the weapon which was a countrymade pistol was
ignored by the Trial Court. In the absence of any such private person
having witnessed the recovery, this Court is of the opinion that if the
said exercise had been done, it would have lead credence to the recovery
of the pistol and the cartridges which is the sole evidence against the
appellant. The disclosure statement was also recorded in the police
station on 20.06.2005, early morning whereas the appellant was arrested
on 19.06.2005 which should have not been relied upon by the Trial Court
being disclosure in police custody. It has already been noticed that there
is no credible evidence against the appellant being involved in the
incident apart from the personal information of the Inspector, Som Raj.
The Apex Court in the case of 'Ritesh Chakarvarti Vs.
State of Madhya Pradesh', 2006 (12) SCC 321, while dealing with the
case of recovery from a public place of a contraband under the NDPS
Act, 1985, came to the conclusion that witnesses, who were present at the
time of the occurrence could be associated and their names and addresses
could be taken. In the absence of the same an adverse inference should
be drawn for the non-examination of the material witnesses, keeping in
view the provisions of Section 114 (g) of the Indian Evidence Act.
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Similarly, in 'State of Uttar Pradesh Vs. Wasif Haider',
2019 (2) SCC 303, the Apex Court has held that in the absence of any
independent witness prudence demands that the evidence of the official
witness, has to be tested on the altar of strict scrutiny. Thus, the evidence
of the prosecution witnesses was held not to inspire the confidence of the
Court.
In the case of 'Madhu Vs. State of Kerala' 2012 (2) SCC
399, while dealing with the provisions of Sections 25 to 27 of the Indian
Evidence Act, the Apex Court examined the veracity of the confessional
statements made before the police officers and came to the conclusion
that confession made by an accused while in custody could not be proved
against him. The only exception was Section 27, which provides that a
confessional statement made to police officer while an accused was in
police custody could be proved against him, if it lead to the discovery of
an unknown fact. It was, however, noticed that the evidence has to be
scrutinized to that extent. Resultantly, regarding the recovery of the gold
ornaments, which had been done on account of the statements made in
the police custody, it was held that the same may well have been planted
by the police.
The evidence herein also, thus, inspires no confidence for
recording a conviction, on the basis of the statement record while in
police custody, which led to the recovery of the weapons and cartridges,
which also could have been planted upon the appellant, in order to solve
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the crime.
It is also to be noted that the injured witness Suresh, the
brother of the deceased did not support the case of the prosecution and
was declared hostile. He denied of having made the statement regarding
the involvement of Jaipal and Subhash in the FIR to the police. In such
circumstances, in the absence of any corroborating evidence against the
appellant, this Court is of the opinion that the benefit of doubt has to be
accorded to the appellant as no credence can be attached to the recovery
of the pistol and cartridges, in the absence of independent witnesses,
which is the sole evidence against the appellant.
Accordingly, in view of the above discussion, the present
appeal is allowed and the judgment dated 13.07.2007, passed by the
Addl. Sessions Judge-II, Jind is set aside.
The appellant is already on bail, hence his bail bonds in
present case stand discharged.
22.02.2021 (G.S. SANDHAWALIA)
Sailesh JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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