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PETITIONER: REHMAT

       Vs.

RESPONDENT: THE STATE HARYANA

DATE OF JUDGMENT:       03/09/1996

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P.KURDUKAR, J.      Two separate  trials arising  out of  an incident which took place during the intervening night between 6/7th April, 1986  ended   in  convictions   and  sentences  against  the appellant-accused under  Sections 307  and 393 of the Indian Penal Code  and under  Section 25  of the Arms Act read with Section  6   of  the  Terrorist  and  Disruptive  Activities (Prevention) Act,  1985. The  impugned judgments  and orders dated 15th  April, 1987  and 9th February, 1989 respectively are passed by Designated Court, Faridabad at Gurgaon in case Nos. 80 and 81. Although, the Designated Court has given two separate  judgments,   however,  these   appeals  are  being disposed of by this common judgments 2.   The prosecution case, in brief is as under:      At about  3.30/4.00 a.m.  on  7th  April,  1986,  Padam Singh-the complainant  (PW 4)  was in  his room. An electric light was on. He noticed a person running by the side of his room whom  he recognized  as Rehmat,  the brother-in-law  of Ashraf  resident   af  village   Bichhor.  The   complainant suspected some  mischief having  been done  by  Rehmat  and, therefore, he  chased him  for about  three  killas.  Rehmat realizing that he would be caught by the complainant, turned back and  opened fire  from his  country made  pistol  which caused an injury on complainant’s right leg. The complainant grappled with  the appellant.  In the meantime, Vijay Singh, Hari Singh  and Fateh Ram (Sarpanch) reached at the spot and apprehended the appellant alongwith a country made pistol of 12 bore  with a  belt having six cartridges. The complainant further alleged  that a few hours before the incident he had seen Jumma and Suraj alongwith the appellant in the locality where his  house is  situated.  It  is  alleged  that  while overpowering the  appellant, he  had received  injuries. The complainant was  then  removed  to  Primary  Health  Centre, Punchanamas, where  he was  medically examined.  A ruqqa was sent to  the Police  Station for  appropriate  action.  Nafe Singh,  S.I.reached   at  the   hospital  and  recorded  his statement  (Ex.PD).  A  formal  FIR  (Ex.PG/4)  came  to  be registered. Nafe  Singh, S.I.  then went  to  the  place  of occurrence at  Bichhor where  the appellant  was produced by

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Fateh Ram  (Sarpanch) and  Hari Singh  with the pistol and a belt containing  six live cartridges. The appellant was then shown arrested.  The weapon  and the  cartridges were seized under the Panchnamas and were separately sealed. He was sent to RHC, Punchanama for medical examination. On completion of the investigation,  a challan was filed in the Court and the appellant was  put up  for trial  in two  separate cases  as mentioned above before the Designated Court. 3.   The appellant  denied the  charges and  pleaded that he was falsely  implicated in this crime. He stated that Ashraf son of  Ramzani is  related to  him and  the father  of  the complainant and  Ashraf were having a dispute over the canal water as  their lands  adjoin to  each other.  The relations between complainant’s  father (Padam  Singh) and Ashraf were strained and  since he  is related  to Ashraf,  he has  been falsely implicated  in this  case. He further stated that he was assaulted  by the  complainant party  and had  sustained injuries. He  also pleaded  the right  of self defence as he was assaulted  by the  complainant with  a danda  which  was lying near  the tubewell of Ashraf. The election rivalry was also a cause for involving him in this crime. He denied that he was  having any  weapon or cartridges and stated that the recovery shown is false and concocted. The whole prosecution case is false, he is innocent and be acquitted. 4.   In order  to prove  its case,  the prosecution examined Dr. D.P.Gupta  (PW 1),  Het Ram,  draftsman  (PW  2),  Abdul Sattar, patwari (PW 3), Padam Singh (PW 4), Narain Singh ASI (PW 5),  Fateh Ram (PW 6), Randhir Singh (PW 7), Nafe Singh, Inspector (PW  8) and  tendered in  evidence the  report  of F.S.L. (Ex.PN/1  to Ex.  PN/3). The  appellant also examined D.P.Jain (DW  1>,  Record  Keeper  of  the  Sessions  Court, Gurgaon. 5. We  may first  deal with Criminal Appeal No. 178/89 which arise out  of conviction and sentence of the appellant under Sections 307  and 393  IPC. The  Learned trial  judge  after Appraisal of the oral and documentary evidence on record led by the  parties held  the appellant guilty for the aforesaid offences and  accordingly vide  his impugned order sentenced him on  each count  to suffer  five years RI. Both sentences were directed to run concurrently. 6.   Mr. R.P.Singh, the Learned Counsel appearing in support of this  appeal urged  that the  entire prosecution  case is unbelievable as  the prosecution  has failed  to explain the injuries on  the person of the appellant who was apprehendad on the  spot and handed over to the Investigating Officer at about 9.00  a.m. on  7th April,  1986. The  evidence of  Dr. D.P.Gupta who  examined the  appellant on 7th April, 1986 at 4.10 p.m.  noted as  many as  13 injuries out of which seven were lacerated wounds of different sizes. He then urged that all these  injuries  were  caused  due  to  assault  by  the complainant with a danda. The defence plea of assault on the appellant by  the complainant  appears to  be more  probable and, therefore,  he had  a right  of  self  defence.  It  is further urged  that the recovery of pistol and cartridges is again a cock and bull story which deserves to be rejected. 7. Mr.  Prem Malhotra,  learned counsel  for the  respondent supported the impugned order. 8.   We have  carefully gone through the ocular evidence and other materials on record. 9.   Padam Singh (PW 4) has stated that he saw the appellant running from  the side of his room at about 3.30 a.m. on 7th April, 1986  and, therefore,  he chased him for 3 killas and when he  was about  to overpower  him, the  appellant turned back and  opened a  fire from  his pistol  which  caused  an injury on  the back  side of  his right  leg. Thereafter, he

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caught the appellant and grappled with him. In the meantime, Vijay Singh,  Hari Singh  and Fateh Ram reached at the spot. He then  went to  the Primary  Health  Center,Punchanama  on bicycle with  Vijay Singh,  for being  medically examined. A ruqqa was  sent to the Police Station which is situated just opposite to the said PHC. Padam Singh (PW 4) in his evidence has asserted  that the  appellant had  opened a fire through his pistol  and was  apprehended on the spot with the weapon and six live cartridges. This story of Padam Singh (PW 4) is also caught  to be  corroborated by  Fateh Ram  (PW  6)  who claims that  at the relevant time, he was going to a Temple. Both these  witnesses have  failed to explain 13 injuries on the appellant,  out of  which 7  were Lacerated  wounds. Dr. Gupta (PW  1) has stated that he found these injuries on the person of  the appellant  when he examined him on 7th April, 1986 at 4.10 p.m. It is not the case cf the prosecution that the appellant  had sustained  these injuries  prior  to  7th April, 1986.  According to  the prosecution  case, appellant was apprehended on the spot and he was detained until handed over to the Investigating Officer, Nafe Singh (PW 8). It was incumbent upon  the prosecution  to place  before the  Court truthful  version  of  the  incident  and  explain  how  the appellant   sustained   these   injuries.   No   explanation whatsoever is  coming from  the prosecution.  It is in these circumstances the  defence of  the  appellant  that  he  was assaulted by  Padam Singh  (PW 4) with a danda appears to us more probable  and consistent with the injuries sustained by him. If  prosecution has  suppressed the true facts from the Court, then  it is  difficult to  sustain the  conviction on such doubtful evidence on record. 10. There is also another aspect which goes in favour of the appellant. Admittedly  Padam Singh  (PW 4)  alongwith  Vijay Singh had  first gone  to  the  Primary  Health  Centre  for medical help  but he  dia  not  disclose  the  name  of  the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor  is supposed  to write  down the  history of  the injured but admittedly in this case, medical papers of Padam Singh (PW  4) do not indicate the name of the assailant. The names were disclosed only at the time when the complaint was recorded by  51 Narain  Singh at  about 9.00  p.m. which was treated as  a  formal  FIR.  The  learned  counsel  for  the appellant, therefore,  rightly urged  that the appellant was later on  implicated in the present crime at the instance of the complainant  and his friends. It may also be stated that the prosecution case even otherwise appears to us improbable because Padam  Singh (PW  4) claims  to have got up early in the morning  and saw  the appellant running from the side of room at  about 3.30  a.m. In  these  circumstances,  is  not possible to  sustain the  conviction of  the appellant under Section 307/393 of the Indian Penal Code. 11.  Arising out of conviction and sentence under Section 25 of the  Arms Act  read with  Section 6  of the Terrorist and Disruptive Activities  (Prevention) Act, 1985, we are of the opinion that  the evidence  adduced by  the  prosecution  to prove the  guilt of  the accused again suffers from The same infirmity  as  we  have  discussed  hereinabove.  As  stated earlier, the  incident is  one and the same. After carefully going through  the evidence  of Fateh  Ram (PW 1), Inspector Nafe Singh  (PW 2) and the seizure Panchanamas in respect of pistol  (Ex.P1)   and  belt   (Ex.P3)  containing  six  live cartridges (Ex.P4  to Ex.P9), we find that the said evidence is nut  credible and  does not inspire confidence. Thus, the impugned order  of conviction of the appellant under Section 25 of  the Arms Act read with Section 6 of the terrorist and Disruptive   Activities    (Prevention)   Act,    1985,   is

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unsustainable and is accordingly set aside. 12.  In the  result, the  Criminal Appeals  Nos. 178-179  of 1989 are  allowed. The  impugned judgments  and  orders  are quashed and  set aside.  The bailbonds  of the  appellant to stand cancelled.