Sankla Ram son of Shri Kallaji vs State of Rajasthan

This criminal appeal under section 374(1) CrPC has

been preferred by the appellant being aggrieved with the

judgment dated 03.03.1994 passed by Additional Sessions Judge,

Bali (for short ''the trial court'' hereinafter) in Sessions Case

No.10/1992, whereby the trial court while acquitting the accused-

appellant from the offence punishable under section 307 IPC has

convicted him for the offence punishable under section 353 IPC

and sentenced him to undergo four months'' rigorous

imprisonment and to pay a fine of Rs.2000/-, in default of

payment of fine, further to undergo two months'' rigorous

imprisonment.

As per the prosecution story, on 31.10.1991, Station

House Officer, Police Station, Sanderao, District Pali, Sang Singh

along with other police personnel went for searching Bhur Singh

son of Sardar Singh, who was an accused of commission of

offence punishable under sections 307, 149 IPC in FIR

No.106/1991 of that police station. When the police party reached

the tube well of Bhur Singh at about 8:00 A.M. on 31.10.1991,

then they found the accused - appellant and Bhur Singh standing

there and after seeing the police party, they started running

towards a hill. Accused-appellant was armed with a 12 bore gun

and when the police party chased them, the accused-appellant on

asking of Bhur Singh had fired a gunshot towards police party,

however, the gunshot did not hit any of the police personnel and

the accused-appellant and Bhur Singh ran away from scene of

crime.

Charge-sheet was filed against the accused-appellant

for the offence punishable under sections 307 and 353 IPC. The

charges were also framed by the trial court for the aforesaid

offences. To prove the charges against the accused-appellant, the

prosecution produced as many as 9 witnesses and also got

exhibited several documents. Statements of the accused-

appellants were recorded under section 313 CrPC and three

witnesses were produced in defence.

The trial court after pondering over the prosecution

evidence as well as the defence evidence has acquitted the

accused-appellant from the offence punishable under section 307

IPC, however, convicted him for the offence punishable under

section 353 IPC and sentenced him as mentioned above.

Learned counsel for the appellant has argued that there

is no iota of evidence available on record to suggest that the

appellant had assaulted or used criminal force on any of the police

personnel with intent to prevent or deter him from discharging his

duty as public servant.

It is contended that the trial court has given specific

finding to the effect that the prosecution has failed to prove that

the accused-appellant had fired a gunshot on the police party and

as such the offence punishable under section 307 IPC is not made

out against the accused-appellant.

It is also contended that the trial court in the impugned

judgment has also given a finding that the prosecution has

miserably failed to prove that the accused-appellant was armed

with which type of gun or he had fired from that gun. Learned

counsel for the appellant has submitted that once the trial court

has given this finding, then there is no reason to convict the

accused-appellant for the offence punishable under section 353

IPC.

Learned counsel for the appellant has further submitted

that the appellant has produced three witnesses in defencce, out

of them, two witnesses viz. DW.2 Kastura Ram and DW.3 Maga

Ram have specifically stated that on the day of the incident,

accused-appellant was not on the tube well of Bhur Singh and

though the police party reached there and inquired about him but

Maga Ram said that he does not know the whereabouts of Bhur

Singh, then he was assaulted by the police and for that Maga

Ram filed a criminal case and in relation to that and to counter

that case, the police party has filed false case against the

appellant. Learned counsel for the appellant has, therefore,

argued that the trial court has not even considered the defence

evidence produced by the accused-appellant. Hence, the

impugned judgment is not liable to be sustained.

Per contra, learned Public Prosecutor has supported the

impugned judgment and argued that evidence of commission of

offence under section 353 IPC is available against the accused-

appellant and, therefore, the trial court has not committed any

error in convicting the accused-appellant for the aforesaid offence.

As per the prosecution story, when the police party

reached the tube well of Bhur Singh for apprehending him in

connection with a criminal case, accused-appellant and Bhur Singh

were standing there and after seeing the police party, they ran

away from the spot. When the police party chased them, then the

accused-appellant fired a gunshot from his 12 bore gun towards

the police party on asking of Bhur Singh, however, as per the

prosecution story, the gunshot did not hit anybody.

The trial court after taking into consideration the

prosecution evidence has given specific finding that the

prosecution has failed to produce cogent and reliable evidence to

prove that the accused-appellant had fired a gunshot from a gun

to stop the police party from arresting Bhur Singh.

It is to be noticed that the trial court has also observed

that no evidence is available on record to the effect that the

accused-appellant was carrying which type of gun and there is no

evidence collected by the police such as pallets, cartridges and

wads to prove that firing had taken place. The relevant finding of

the trial court in this regard is reproduced hereunder:

"VERNACULAR MATTER OMITTED"

I failed to understand that after giving the above

finding, how the trial court has concluded that the appellant is

guilty of commission of offence punishable under section 353 IPC

when there is no evidence to this effect that the appellant was

carrying any gun or had fired a gunshot to prevent the police from

arresting one person. In such circumstances, I find merit in

the argument of the learned counsel for the appellant that the trial

court has grossly erred in convicting the accused-appellant for the

offence punishable under section 353 IPC.

Accordingly, the appeal succeeds and is allowed. The

impugned judgment dated 03.03.1994 passed by Additional

Sessions Judge, Bali, so far as it relates to conviction of the

appellant, is set aside. The appellant is acquitted from the offence

punishable under section 353 IPC. He is on bail, his bail bonds

stand cancelled.

Record of the trial court be sent forthwith.