RAM SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant was prosecuted for the offences punishable under sections - 393 and 398 I.P.C. as well under Sec. 3/25 of the Arms Act in the Court of Additional District and Sessions Judge, Kishangarh Bas. The charge against the petitioner was that he made an attempt to commit robbery in the shop of Om Prakash, complainant, and he was armed with a revolver at that time. The incident is alleged to have taken place at 8 p.m. on 12.11.91 and it is alleged that he was caught by the fellow shop-keepers and handed over to the Police and a report (Ex.P.1) was made at Police Station, Khairthal. It appears that the accused-appellant has sustained injuries in the process of apprehending him by the fellow shop-keepers. Dr. Dhanesh Kumar Sharma (PW.8) examined his injuries on 12.11.91 vide injury report (Ex.P7). The appellant had sustained five injuries and there was a fracture of tibia bone as detected from X-ray report (Ex. P.8).

(2.) During trial, the prosecution examined 9 witnesses which included the informant Om Prakash and the eye-witnesses, Babu Lai, Madan Lai Mahajan and Ashok Kumar. The learned trial Court placing reliance on the testimony of the eye-witnesses and the recovery of revolver (Art. 1) convicted the appellant under sections-393, 398 I.P.C. and Sec. 3/25 of the Arms Act. Under section-393 Penal Code he was sentenced to uhdergo three years' R.I. and a fine of Rs. 100, under Sec. 398 Penal Code he was sentenced to 7 years' R.I. and under section-3/25 of the Arms Act he was sentenced to 1 year's R.I. and to pay a fine of Rs. 100 vide judgment dated, 21.4.92. This appeal has been preferred by the appellant challenging his conviction.

(3.) The only submission urged by the learned amicus curiae was that the offence under Sec. 398 Penal Code and section 3/25 of the Arms Act is not made out against the appellant as it was not proved that the revolver (Art. 1) was in the hand of the appellant at the time of commission of the offence. Learned counsel read over the statements of the eye-witnesses and that of the Investigating Officer and contended that the revolver Art. 1 was not sealed at the place of incident and this was a serious lacuna. Learned counsel contended that in the absence of proper sealing at the time of seizure of the revolver, the identification of the revolver (Art. 1) in the trial Court by the witnesses is meaningless and has no evidentiary value. I find force in this argument. None of the prosecution witness has stated that revolver (Art. 1) was sealed at the time of seizure. P.W. 1, Om Prakash has further stated in cross-examination that the revolver was not in working condition. Today also its trigger was not operating and it was rusted. He then stated that the revolver was not pointed towards his son by the miscreant at the time of the incident. He also made clear that he came to know about the fact of the revolver not being in working condition after the accused was arrested and revolver was seized by the Police. P.W. 2 Babu Lal, in his cross-examination, has admitted that he did not take the revolver in his hand and he had seen it at the Police Station. He also stated in cross-examination that he did not see the accused-appellant at the shop of Om Prakash and he had seen the revolver when it was seized at the Police Station that is why he was telling that revolver (Art. 1) is the same weapon which was seized at the time of incident. Similar is the statement of P.W. 3, Madan Lal. He has stated that he had seen the appellant running and when he was caught, he was having a revolver, but he did not take the revolver in his hand, but the Police had shown the revolver to him. P.W.4 Ashok Kumar, has also stated that he had seen the revolver when accused was caught and also at the Police Station. He further stated in cross-examination that they had not snatched the revolver from the appellant when he was caught and he had not pointed the revolver when they were chasing him P.W.6, Nake Singh was Head Constable at Police Line, Alwar on 13.11.91. He has stated that he had examined revolver, (Article- 1), and 38 bore cartridge could be fired from it and it was in working condition. He then stated that he did not receive the revolver in a sealed condition. P.W.9 Chandrapal Singh-S.H.O. has also not stated that the revolver was sealed by him at the time of seizure. Thus, from the prosecution evidence one thing is established that revolver, Art. 1 was not sealed at the time it was seized. No identification parade was conducted to get the revolver identified from the witnesses. The statement of P.W.1, Om Prakash and P.W.6 Nake Singh, Head Constable is conflicting about the working condition of the revolver. Taking into consideration the various infirmities it is difficult to hold that the revolver Art. 1 was seized by the Police from the possession of the appellant or that he was holding it at the time of commission of the offence. In any case, it becomes doubtful that Art. 1 revolver is the same revolver which was used by the petitioner at the time of commission of the offence and benefit of doubt goes in favour of the appellant.