PRITHVI SINGH Vs. STATE

JUDGEMENT

(1.) This appeal lays a challenge to the judgment passed by the learned TrialCourt convicting the Appellant for offences punishable under Sections 147/148, 353,186, 333 and 394 IPC read with Section 149 IPC and sentenced to Rigorousimprisonment for one year for offences under Section 147 and 148 IPC, RigorousImprisonment for two years for offence under Section 333 IPC including offencesunder Section 186 and 353 IPC with fine of 2,000/- and in default of payment offine to undergo further simple imprisonment of three months and a similar sentencefor offences under Section 394 IPC. Since the sentences are to run concurrentlythe quantum of the sentence of the Appellant is two years Rigorous Imprisonment anda fine of 4,000/- and in default simple imprisonment for six months. As per thenominal roll at the time of suspension of sentence on 9th April, 2001 the Appellanthad undergone a sentence of nearly two months.

(2.) Briefly, the prosecution case is that on 9th February, 1992 at 9 P.M. HeadConstable Nain Singh along with Constable Kaptan Singh had gone to Prithvi Singh(the Appellant herein) to enquire into a complaint lodged by one Mukesh as regardshis buffaloes taken away by Prithvi Singh, Hanif and Mahesh. When Nain Singhenquired from the complainant the Appellant stated that since Mukesh had not givenhis money he took away his buffaloes. On Nain Singh telling Prithvi Singh toreturn the buffaloes of Mukesh Kumar, Prithvi Singh called his brother BishambarSingh for his help who was armed with a lathi and gave a lathi blow on the head ofNain Singh. Thereafter, Prithvi Singh raised an alarm "chor chor" and Ashok,Hanif, Mahesh and Dharam Pal also reached the spot and started giving brick blowsto Nain Singh and Kaptan Singh. The Appellant also brought out one iron rod fromhis room and gave several blows with the same on the person of Nain Singh, as aresult of which one of his legs got fractured. The Appellant snatched the servicerevolver of Nain Singh which was tied on his waist. After snatching the servicerevolver back from Prithvi Singh, Head Constable Nain Singh fired three rounds inthe air. Thereafter, Prithvi Singh pushed Nain Singh to the ground and startedpressing his neck and Ashok s/o Bishambar Singh and Mahesh snatched his revolverforcibly. Kaptan Singh, who was also an injured, ran away from the spot. NainSingh because of the injury lost consciousness. On the complaint of ConstableKaptan Singh the FIR was registered. Both Kaptan Singh and Nain Singh weremedically examined. The statement of Nain Singh was recorded after he wasdeclared fit by the doctor. After investigation a charge sheet was filed againstthe Appellant, Hanif, Mahesh, Dharam Pal, Bishambar Singh, Ashok Kumar s/o LeelaDhar and Ashok Kumar @ Kara s/o Bishambar Singh. Constable Kaptan Singh was not examined during trial as he had expired. After recording of the evidence, the other co-accused were acquitted, however, the Appellant was convicted. The Appellant was convicted for the offences and awarded the sentence as stated above.

(3.) Learned Counsel for the Appellant contends that in view of the contradictionsin the testimony of the witnesses, no reliance can be placed on the same. According to the learned Counsel, PW1 Constable Brij Pal says that the Appellantwas arrested at the spot whereas the other witnesses have stated that the Appellantwas arrested on the next day when he was going on his motor cycle. There is amaterial discrepancy as regards the time of receipt of information in the policestation as PW10 and PW11 gave different versions. PW10 deposed that the informationwas received at 9 P.M. whereas PW11 deposed that it was received at 10.15 p.m. There is also a discrepancy in the place from where the cover of the revolver wasrecovered as PW10 says that it was recovered from the roof whereas PW11 says thatit was recovered from the spot. PW9 has stated that it was Kaptan Singh and NainSingh who came to the police post whereas PW10 states that only Kaptan Singh came. There is contradiction not only as regards who came to the police post but alsowhere the statement of Kaptan Singh was recorded. Nain Singh did not know the nameof the accused persons and he had written the same on his hand when he appeared inthe witness box which fact was pointed out during the trial, resulting in theacquittal of the co-accused persons. As the co-accused persons have been acquittedno case of unlawful assembly is proved and thus the Appellant cannot be convictedfor the offences punishable under Sections 147/148 read with 149 IPC. The revolverwas snatched by Ashok Kumar @ Kara and Mahesh and thus no case for conviction underSection 394 IPC is made out against the Appellant. No public witness has beenassociated in the recovery of the revolver and PW4, Mukesh on whose complaint HeadConstable Nain Singh alleges to have gone for verification has also turned hostile. Thus in view of these discrepancies conviction of the Appellant cannot be sustainedand the Appellant be acquitted of the offences charged.