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Judgment
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.