State of Haryana vs Bhartu etc.

R.L. Anand, J.—State of Haryana has filed the present appeal and it has been directed against the judgment dated 1.10.1991 passed by the Court of Sessions Judge, Hissar, who acquitted Bhartu and his co-accused Kundan Singh of the charges under Sections 25 and 29 of the Indian Arms Act.

Vide order dated 18th March, 1991, the learned Magistrate committed the case to the Court of Sessions in order to face trial under Sections 25/29 of the Arms Act, being the connected case of F.I.R.No.180 dated 28.12.1990 u/s 302 of the Indian Penal Code registered at Police Station Bhuna.

The brief facts of the case are that on the night of 27.12.1990 Bhartu accused allegedly fired a gun shot upon Shri Anil Kumar and killed him. He was arrested on 21.1991 near cremation ground Bhuna and during the course of investigation, Bhartu suffered a disclosure statement and in pursuance of the said disclosure statement, he got recovered a double barrel gun from his house. It is the story of the prosecution that the gun recovered at the instance of Bhartu belonged to Kundan Singh who allowed its use by the accused Bhartu for the commission of the crime. FIR No.3 dated 2.1.1991 was registered against Bhartu and Kundan Singh in Police Station Bhuna. Kundan Singh was apprehended and on the completion of the investigation of the case the accused were challaned under Sections 25/29 of the Arms Act.

The copies of the documents were given to the accused and vide order dated 28th March, 1991, both the accused were committed to the Court of Session. As per the case of the prosecution that the gun recovered at the instance of Bhartu was used for the commission of the offence u/s 302 of the Indian Penal Code. Charge u/s 25 of the Arms Act was framed against Bhartu and charge u/s 29 of the Arms Act was framed against Kundan Singh. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges the prosecution examined Shri Manohar Lal P.W.1 and Ramesh Pal P.W.2. Both of them deposed that Bhartu was arrested on 2.1.1991 at about 11.00 A.M. This accused suffered a disclosure statement to the effect that he had kept concealed a gun in his house and he could get the same recovered. In pursuance of the disclosure statement, he got recovered the gun Ex.P.7 which was sealed and taken into possession by the Thanedar in the presence of the aforesaid witnesses. During the course of investigation, it came to the knowledge of the Investigating Officer Shri Ramesh Pal that the gun belonged to Kundan Singh who allowed the access of the gun to his co-accused Bhartu for the commission of the offence. Resultantly, he was also arrested. Accused Kundan Singh produced licence of the gun Ex.P.3 which was taken into possession. The gun was also sent to the office of the Forensic Science Laboratory, Haryana Madhuban and in this regard its report is Ex.PD which was also placed on record. On the closure of the evidence of the prosecution, statement of the accused was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied the allegations. Bhartu accused stated that he did not make a disclosure statement nor got recovered the gun. Kundan Singh stated that in fact, the gun has been taken into possession by the police on 21.12.1990 i.e. before the occurrence and it was later on planted against Bhartu in the present case. In his defence, he examined Shri Mani Ram to state that the gun was produced by accused Kundan Singh before the S.H.O. in the Police Station who had desired the accused to produce the gun before him for the purpose of checking in the wake of terrorist activities.

The learned trial Court acquitted both the accused for the reasons given in the main judgment. Not satisfied with the finding of the trial Court, the present appeal by the State.

We have heard Mr.D.P.Singh on behalf of the appellant and Shri Atul Lakhanpal on behalf of the respondents and with their assistance, have gone through the record of this case.

Before we proceed further in the matter, we would like to make a mention that vide our separate judgment of even date we have given the finding that the murder of Anil Kumar has not been committed by Bhartu and that the prosecution evidence is totally false and unreliable. In this background now we have to examine whether Bhartu suffered a disclosure statement and whether the recovery of the gun has been effected from his possession or not.

According to the prosecution, the recovery of the gun has been effected from the house of Bhartu accused when the same was allegedly lying in the box. In such a situation, it was a search from the house. It was obligatory on the part of the investigating Officer to associate an independent witness from the locality to lend credence with regard to the factum of recovery. Rather, the statement of the Investigating Officer is that there was no shutter to the house from where the recovery was effected and the place of recovery was accessible to every body and in such a situation anybody could have planted the gun at the alleged place of recovery. By non joining of any independent witness from the locality, the chances cannot be ruled out that the gun has been planted just to lend corroboration to the main case. Earlier, it has been established that the gun Ex.P.7 was not the same gun which was used at the time of the occurrence. With regard to crime cartridge allegedly recovered by the Investigating Officer in the main case, its use is also not established. Thus, Shri Kundan Singh can also not be convicted and sentenced u/s 29 of the Arms Act.

For the reasons recorded above, we are of the opinion that there is also merit in this appeal and the same is hereby dismissed.