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PETITIONER: HUSNA & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       23/01/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) NANAVATI G.T. (J)

CITATION:  1996 SCC  (7) 382        JT 1996 (2)    40  1996 SCALE  (1)493

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND, J.      The appellants  were tried  for offences under Sections 302/34 and  449 IPC  by the  learned Judge  of  the  Special Court. Appellants Husna and Jalour Singh were also tried for an offence  under Section  25 of the Arms Act. Vide Judgment dated 18.4.1985,  the trial  court convicted appellant Husna for an  offence under  Section 302  IPC and sentenced him to life imprisonment.  He was  also convicted  for  an  offence under Section  449 IPC  and sentenced to undergo seven years R.I. and for the offence under Section 25 of the Arms Act to nine months R.I. Appellant Rupa was convicted for an offence under Section 302/34 IPC and sentenced to life imprisonment. He was  also convicted  for an offence under Section 449 IPC and sentenced  to undergo  seven  years  R.I.  Jalour  Singh appellant was  acquitted of the charges under Section 302/34 IPC and  449 IPC but convicted for the offence under Section 25 of the Arms Act and sentenced to undergo nine months R.I. Through this statutory appeal, the appellants have called in question their conviction and sentence. Since the appeal was received from  jail, an  amicus curiae was appointed for the appellants.      According to  the prosecution  case on  28th April 1984 Sadhu Ram PW1 was present at his house at about 9 p.m. along with his  wife Kaushalya  PW4, Satish  Kumar (deceased)  and other children. Two persons committed criminal trespass into the house with their faces muffled armed with pistols. Sadhu Ram PW1  raised an  alarm and  snatched away the pistol from one of  the two  intruders. During  the scuffle, the face of one of  the intruders got unmuffled. Satish Kumar, deceased, came to  the help  of his  father.  At  the  exhortation  of appellant Rupa.  Husna appellant  fired  a  shot  which  hit Satish Kumar  on his  face and  he fell  down. Both Rupa and Husna ran  out of  the house where Jalour Singh armed with a pistol was  already waiting.  All the three accused then ran

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away. Sadhu  Ram PW1  went near  Satish Kumar  and found him dead. Accompanied by Sham Lal and Malkiat Singh, Sarpanch of the village, Sadhu Ram PW1 went to police station to lodge a report. Formal  FIR Ex.p1  was recorded on the basis of that report.  Investigation   was   taken   in   hand   and   the investigating  officer   reached  the  house  of  PW1.  Smt. Kaushlya PW4,  the  mother  of  deceased  Satish  Kumar  was sitting near  the dead  body alongwith some other members of the family and interrogated. She became hysterical and could not give  any clue  or details of the occurrence. An inquest report was  prepared and  the dead body sent for post mortem examination. An  empty cartridge  of 315 bore was taken into possession from  the spot,  vide recovery memo Ex.p5. It was sealed into  a parcel.  A blood stained brick was also taken into possession  vide memo  Ex.p6. Later  on two  more empty cartridges of  315 bore  and one  empty cartridge of 32 bore were also  recovered and taken into possession vide memo Ex. p7. The  post mortem  on the  dead body was performed by Dr. Anup Sood  PW7, which  revealed the  presence of  an ante  - mortem lacerated  punctured wound  with inverted  marging to the doctor  was caused  due to  shock and  haemmrohage as  a result of the aforesaid injury which was opined by him to be sufficient in  the ordinary course of nature to cause death. Since, no  names of the assailants had been disclosed in the FIR, during  the investigation  a supplementary statement of PW1 was  recorded in which he gave the names of the accused. Appellant Husna  and Jalour  Singh were  arrested on June 3, 1984 and  weapons recovered  from them. Rupa appellant stood already arrested  in some  other case and was formally shown as arrested  in the  present case  on  June  12,  1984.  The empties recovered  from the  spot and  the pistol  recovered from Husna  appellant were  sent to  the Director,  Forensic Science Laboratory,  Chandigarh who  vide his  report Ex.p18 opined that  the empty  recovered from the spot was found to have been  fired from  the pistol  of Husna  appellant.  The prosecution with  a view  to connect the appellants with the crime  examined   Sadhu  Ram  PW1  besides  Jit  Singh  PW2, draftsman PW5,  investigating officer  PW6 and Dr. Anup Sood PW7. Avtar  Singh PW3  and  Smt.  Kaushalya  PW4  were  also tendered for  cross-examination. The  prosecution also filed the affidavits  of police officials, whose evidence was of a formal nature  at the  trial. In  their statements  recorded under  Section   313  Cr.P.C.,  the  appellants  denied  the prosecution  allegations  against  them  and  pleaded  false implication.      We have  heard learned  counsel  for  the  parties  and examined the record.      The trial court acquitted Jalour Singh appellant of the charges under  Sections 302/34 IPC and 449 IPC and the State has not  filed any  appeal against  his acquittal. So far as the recovery  of the  pistol from  him at  the time  of  his arrest is  concerned,  the  evidence  of  the  investigating officer has remained unchallenged on that aspect of the case in  the   cross-   examination.   The   statement   of   the investigating officer  is supported  by the  recovery  memos also. Learned  counsel for the appellant was unable to point out any infirmity in the order of the trial court convicting Jalour Singh  for an  offence under  Section 25 Arms Act. In our opinion,  the conviction  and sentence  of the appellant Jalour Singh  for the  offence under  Section 25 of the Arms Act is  well merited  and we  do  not  find  any  reason  to interfere with the same.      Coming now to the case of appellants, Husna and Rupa.      As already  noticed, in  the FIR  the names of both the appellants were  found missing.  They were only named in the

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supplementary  statement   of  PW1   recorded   during   the investigation and  in our  opinion that statement, which was recorded during  the investigation  and in  our opinion that statement, which  was recorded  during the investigation was hit by  Section 162  Cr.P.C. and  the trial  court could not have relied  upon the  same as  a part  of the  FIR. All the three  appellants  are  brothers.  No  overt  act  has  been ascribed to  Rupa appellant during the entire occurrence. It seems rather  improbable that  if PW1 had allegedly snatched away a  pistol from Rupa appellant before Husna fired a shot at Satish Kumar, he would not have fired the same to prevent Husna from  firing the shot. Besides no empty recovered from the spot has been connected by the ballistic expert with the pistol  allegedly   recovered  from  Rupa  appellant.  After carefully analyzing  the evidence  on the  record, we are of the opinion  that the  prosecution  has  not  been  able  to satisfactorily establish  the case  against  appellant  Rupa beyond a reasonable doubt. The possibility that he was named being the  brothers  of  Husna  cannot  be  ruled  out.  His presence  at   the  time   of  occurrence   has   not   been satisfactorily proved.  His conviction  and sentence for the various offences  as recorded  by the  trial court therefore cannot be sustained.      That Satish  Kumar died  as a  result  of  a  fire  arm injury, as  found by  Dr. Anup Sood PW7, admits of no doubt. It was neither questioned in the trial court nor even before this court.  The statement  of PW1 to the effect that it was Husna appellant  who had  fired the  shot  at  Satish  Kumar inspires confidence  and receives  ample corroboration  both from the  medical evidence  as well  as the  report  of  the ballistic expert,  who found  the empties recovered from the spot to have been fired from the weapon recovered from Husna appellant. Since, the empties had been sent to the ballistic expert much  before Husna  appellant was  arrested  and  the weapon recovered  from him, there is underlying assurance of the correctness  of the  prosecution case  against him since the ballistic  expert opined  that  the  empties  which  had already been  received by him had been fired from the weapon sent to  him after  the  arrest  of  Husna,  appellant.  The evidence on the record has, thus, brought home the charge to appellant  Husna  beyond  every  reasonable  doubt  and  his conviction and sentence for the various offences as recorded by the  trial  court  is  well  merited  and  calls  for  no interference.      As a  result of  the above  discussion, the  appeals of Husna and  Jalour Singh appellants are dismissed. The appeal of Rupa  appellant is  allowed and giving him the benefit of the doubt,  he is  acquitted of all the charges. He shall be released from custody forthwith if not required in any other case.