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PETITIONER: PARVEEN

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       24/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH            TRANSFERRED CASE (CRL.) NO. 1 OF 1995 Parveen V. State of Haryana                       J U D G M E N T S.P.KURDUKAR      Two separate  trials resulting  into convictions of the appellant arising  out of  an incident  dated August 3, 1989 have given  rise to  these two  appeals. Criminal Appeal No. 735 of  1991 arose  out of  T &  (P) S  Case No.  31 of 1990 wherein the appellant was tried and convicted for an offence punishable under  Section 25  of the  Indian  Arms  Act  but acquitted of an offence under Section 5 of the Terrorist and Disruptive activities  (Prevention)  Act,  1987  (for  short ’TADA’).      Transferred Case  (Crl.) No.1  of  1995  arose  out  of Sessions Case  No. 15  of 1990  wherein  the  appellant  and Parkash were  tried of  an offence  punishable under Section 307/34 of the Indian Penal Code. Both these cases were tried by the  same Additional Sessions Judge, but in two different capacities,  one   as  an  Addl.  Judge,  Designated  Court, Faridabad at Narnaul and another as an Addl. Sessions Judge, Narnaul. To  be more  precise, T & (P) S Case No. 31 of 1990 was tried  before the Designated Court whereas Sessions Case No. 15  of 1990  was tried  before the Addl. Sessions Judge, Narnaul. It  may also  be stated that preceding this appeal, the investigation  was  common  and  some  of  the  material witnesses were  overlapping. It is in these circumstances we are of  the opinion  that both these appeals can be disposed of by this common judgement. 2.   We may  first deal  with the Criminal Appeal No. 735 of 1991 which has arisen out of T & (P) S Case No. 31 of 1990. 3.   The prosecution story in nut shell is as under :- Siri Narain (PW 2) was running a hotel in the name and style of "Sangam Hotel" at Dharuhera. His two sons, namely, Rakesh (PW 33)  and Radhey Sham (PW 6) used to help him in the said business. On  August 3,  1989,  at  about  11.00  p.m.,  the appellant  (A-1)   alongwith  his  two  associates,  namely, Dhirender, son  of  Birender  Singh,  and  Prakash,  son  of

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Richhpal Singh,  came to the hotel in a tractor and demanded empty glasses  and cigarette  packets. Radhey  Shyam (PW 66) gave two  packets of  cigarettes to them but refused to give the empty  glasses telling them that the liquor was strictly prohibited in  the hotel.  The accused  persons then started taking "neat liquor" from their own bottles. Siri Narain (PW 2) protested whereupon accused abusing him and threatened to kill him.  In the  meantime, the appellant (A-1) went to the tractor and  brought a  gun loaded  with two  cartridges and fired at  Siri Narain.  It was  sheer  providence  that  the bullet did  not hit him (Siri Narain) as he stretched on the ground. The  occurrence was  witnessed  by  Rakesh  (PW  3), Radhey Shyam  (PW 6),  Dharamvir servant (PW 4) and Surender (PW 5).  Siri Narain  then went  to the  Hyderabad  factory, situated near  his hotel  and informed  SI Rai  Singh (PW 7) about the  occurrence who  then  reached  at  the  place  of incident alongwith  police party.  Siri Narain  (PW 2)  then gave his statement Ex. PA and a ruqqa was sent to the Police Station for  registration of  the  crime.  SI  Dharam  Singh registered the FIR (Ex. PA//1) and directed SI Rai Singh (PW 7) to  carry out  the necessary  investigation.  During  the investigation, a  site plan  of the  place of occurrence was prepared and  the appellant  and two  other accused  persons came to  be arrested.  A double  gun  was  seized  from  the appellant vide seizure memo. Ex. PK. One empty cartridge and one live  cartridge were seized from the place of occurrence vide seizure  memo Ex.PL.  The gun  and the  cartridges were then sent  to Forensic Science Laboratory, Haryana, Madhuban for examination.  After completing  the  investigation,  the charge sheet  under section  25 of  the Indian Arms Act read with Section  5 of  TADA was  filed  against  the  appellant before the Designated Court, Faridabad at Narnaul. 4.   A separate  charge sheet  was also  filed  against  the appellant and  two other  accused  persons  for  an  offence punishable under  Section 307/34 of the Indian Penal Code in the Court  of Addl.  Sessions Judge,  Narnaul being Sessions Case No. 15 of 1990. 5.   The appellant  denied the accusations and claimed to be tried. According  to him, the entire incident as narrated by Siri Narain  is  false,  concocted  and  there  was  neither recovery of  any weapon  nor any cartridge from the place of incident. He is innocent and he be acquitted. 6.   The prosecution  in order  to prove  the guilt  of  the appellant examined  five  witnesses  of  facts,  viz.,  Siri Narain (PW  2), Rakesh  (PW 3),  Dharamvir servant  (PW  4), Surender (PW  5) and  Radhey Shyam  (PW  6).  Besides  their evidence, the  prosecution  also  adduced  the  evidence  of formal witnesses  and placed  reliance upon the report given by Forensic Science Laboratory, Haryana, Madhuban. 7.   The learned  Addl. Sessions  Judge,  Designated  Court, Faridabad at  Narnaul, after careful persual of the oral and documentary evidence  on record  by his  judgement and order dated 14/15-11-1991  convicted the  appellant for an offence punishable under  Section 25  of the  Indian  Arms  Act  and sentenced him  to suffer  RI for  two  years,  however,  the appellant was  acquitted under  Section 5  of  TADA.  IT  is against this  judgement and order of conviction and sentence passed by the Designated Court, the appellant has filed this appeal to this Court. 8.   Mr. U.R.Lalit,  Learned  Senior  Counsel  appearing  in support of  this appeal  assailed the  impugned judgement on the ground  that there  is  no  evidence  of  any  judgement witness on  record to  support the  charge.  He  urged  that except Siri Narain (PW 2), all other witnesses of facts have turned hostile  and it  would not  be  safe  to  accept  his

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evidence to  convict the  appellant. He  also urged that the seizure memos in respect of the double barrel gun, empty and live cartridges  were all  false and  could not  be made the basis of conviction. The impugned judgement be set aside and the appellant be acquitted. 9.   Mr. Rao  Ranjit, Learned  Advocate  appearing  for  the State of Haryana supported the impugned judgement. 10.  After  careful  scrutiny  of  the  evidence  and  other materials on  record, we  are satisfied  that  there  is  no substance in any of the contentions raised by Mr. U.R.Lalit. Siri Narain  (PW 2)  in his  evidence has  stated  that  the appellant went  to the  Tractor after wordy quarrel, brought the gun  in question,  loaded the  same and fired at him. He also testified  that the  double barrel gun, empty cartridge and the live cartridge were seized in his presence by SI Rai Singh (PW  7). Although  this witness  was examined at great length but  we are unable to find any material in his cross- examination  which  could  make  us  to  disbelieve  in  his testimony. His  evidence was  fully corroborated  by SI  Rai Singh (PW 7). Besides this ocular evidence, the report given by the  Assistant Director  (Ballistics),  Forensic  Science Laboratory,  Haryana,   MAdhuban,  also  corroborated  their evidence.  However,  Mr.U.R.Lalit,  Learned  Senior  Counsel strongly relied  upon the  evidence of  other  witnesses  of facts, ignoring  the  fact  that  they  have  been  declared hostile and  were cross-examined by the defence. No reliance whatsoever could  be placed on such evidence. We, therefore, see no  reason to  interfere with  the order  of  conviction passed by  the Designated  Court. Sentence  of two  years RI also cannot  be said to be disproportionate having regard to the facts  and circumstances  of this  case.  This  Criminal Appeal is, therefore, devoid of any merit. 11.  Coming to  the other  appeal, namely,  Transferred Case (Crl.) No.  1 of 1995 arising out of conviction and sentence under Section  307/34 of  the  Indian  Penal  Code,  at  the outset, it  may be  stated  that  although  the  prosecution examined several witnesses to the occurrence but except Siri Narain (PW  3), other four witnesses have turned hostile and entire prosecution  case, therefore, rested on his evidence. IT may  also be  stated that  two other  accused persons who were put  up for trial alongwith the appellant, one of them, namely, Dhirender died during the pendency of the trial and, therefore,  it   abated  against  him.  Parkash  (A-2)  was, however, acquitted  by the Trial Court and State of Haryana, did not  prefer any  appeal against  the said order. The net result,  therefore,   is  that  the  appellant  alone  stood convicted by  the Trial Court vide its judgement alone stood convicted by  the Trial  Court vide  its judgement and order dated 14/15-11-1991  for an offence punishable under Section 207 of  the Indian Penal Code and sentenced him to suffer RI for three  years and a fine for Rs. 1,000/- and, in default, to undergo  further RI  for six  months. The  learned  Trial Judge also  directed that  the substantive sentences in both these  trials  to  run  concurrently.  It  is  against  this judgement and  order of  conviction, the appellant had filed criminal appeal No. 433-DB/91 to the Punjab and Haryana High Court, Chandigarh. This Court, however, vide its order dated 22nd February,  1995 directed  that the  appeal  No.  433-DB pending  before   the  Punjab  and  Haryana  High  Court  be transferred to  this Court  and be  heard alongwith Criminal Appeal No. 735 of 1991. 12.  Mr. U.R.Lalit,  the Learned Senior Counsel appearing in support of  this appeal  urged that  the  evidence  of  Siri Narain (PW  3) is  totally untrustworthy and his evidence be not accepted  in  the  absence  of  corroboration  from  the

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independent  witnesses.   We  see   no  substance   in  this contention because  Siri Narain  (PW 3)  testified that  the appellant alongwith  two other  accused persons  came to his hotel at  about 11.00  p.m.; demanded  cigarette packets and empty glasses.  He further stated the cigarette packets were given to  them by  Radhey Shyam  (PW 6) but, refused to give empty glasses  to them  as the  liquor was prohibited in the hotel. Thereupon  the appellant went to his tractor, brought the gun,  loaded the  same and fired at him. However, he was luckily saved  as he  stretched on  the ground. We have gone through the  evidence of  this witness very carefully and we are  satisfied   that  his   evidence  is   trustworthy  and conviction could be based on his sole testimony. The seizure of double  barrel gun  and the cartridges were proved by the prosecution through  the evidence of SI Rai Singh (PW 7) and this fact  was also testified by Siri Narain (PW 3). It also needs to  be  noticed  that  the  report  of  the  Assistant Director (Ballistics), Forensic Science Laboratory, Haryana, Madhuban, also supports the prosecution case. In the face of this positive  evidence, it  is not  possible to disturb the impugned judgement. There is no substance in this appeal. 13.  In the  result, the  appeal and transferred case (Crl.) No. 1  of 1995  are devoid of any merits and are accordingly dismissed. The appellant, if on bail, shall surrender to his bailbonds forthwith to serve out the remaining period of his sentence.