PARVEEN Vs. STATE OF HARYANA

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Date of judgment:
24/10/1996
Hon'ble Judges:
M.K. Mukherjee, S.P. Kurdukar

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 amp; (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 amp; (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 amp; (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 quot;Sangam Hotelquot; 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
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 quot;neat liquorquot; 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
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
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.

ENDSHERE