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TMI Blog2002 (12) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... yana at Chandigarh in Crl. Appeal No. 238/DBA/89. The High Court by its judgment dated 9.11.1995 allowed the appeal so far as the present appellant is concerned, and convicted him of an offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- in default to further undergo RI for one year. The High Court also found the appellant guilty of an offence punishable under Sections 25 and 27 of the Arms Act and imposed a sentence of RI for one year with a fine of Rs. 1,000/-; in default RI for 6 months on that count. It directed both the sentences to run concurrently. The State appeal against the acquittal of A-2 and A-3 was dismissed by the High Court, therefore, the appellant is now before us in this appeal. 2. Briefly stated, the prosecution case is that the accused, the deceased and the complainant were all closely related. There was a dispute between Kanwar Singh A-1 and deceased Hari Om (allegedly murdered by the accused). It is the further case of the prosecution, which, of course, is not disputed, that the appellant in this appeal was serving the Central Reserve Police Force at Jammu was on orders of transfer to Tripu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tern corner of the Chabutra. On the basis of the above material gathered during the investigation the accused persons were charged as stated above, and the learned Sessions Judge having come to the conclusion that the prosecution has failed to establish the case against the accused persons acquitted them while the High Court in appeal has convicted the appellant herein and acquitted the other two accused persons, A-1 in the meanwhile had died. 3. We have heard learned counsel for the parties and perused the records. The prosecution case as against this appellant rests on the oral evidence of PWs.3 and 7. Apart from the general evidence given as to the motive of A-1 to eliminate deceased Hari Om. So far as the present appellant is concerned, the prosecution also relies upon the alleged recovery of the weapon made from the house of A-3 at the instance of the appellant. 4. The trial court while discussing the evidence of the prosecution came to the conclusion that the oral evidence of PWs.3 and 4 cannot be relied upon because of the inherent improbabilities found herein. It came to the conclusion that factually if the appellants were hiding in a Nullah and did not want to be ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in regard to the time of the incident and correlating the evidence with that of the post mortem report, the court doubted the prosecution case as to the time of the incident. The learned Sessions Judge also doubted the veracity of the recovery of the single barrel gun at the instance of the appellant. On this basis, rejecting the prosecution case, it acquitted all the surviving accused persons. 5. The High Court on re-appreciation of the evidence came to the conclusion that the evidence of PWs. 3 and 7 is acceptable evidence. The High Court also held that the evidence of PW-5 in regard to the time of occurrence could be an error because of the lapse of time between the date of incident and his evidence. The High Court also accepted the prosecution case that all the accused persons had assembled the plea of alibi put forth by the appellant and accepted the recovery evidence produced by the prosecution as against this appellant. But significantly, it disbelieved all these evidences including that of the eye-witnesses PWs. 3 and 7, so far as other accused are concerned and dismissed the State appeal as against them, while it allowed the same in regard to the present appellant. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce as to the timing has not been challenged by the prosecution. The trial court accepted that version. The High Court refused to believe that solely on the ground that PW-5 had not recorded the time or he might have made mistake because he was giving evidence after considerable time - either of these reasons according to us, is not good enough to reverse the finding of the Sessions Court in this regard. 7. Coming to the evidence of PWs.3 and 7, we notice they are not the permanent residents of the village Gochi though they have every reason to visit the said village. Therefore, in a manner of speaking, they could be said to be chance witnesses. We also do not find any special reason for these 2 witnesses to have accompanied the deceased when he was going to the Police Station to lodge a complaint. It is rather unusual for a person to take with him two young girls to a Police Station when he had the assistance of other grown up male members available at that time. No special reason whatsoever has been given by the prosecution to establish this unusual conduct. Then we notice from the evidence of these 2 witnesses who have stated that at first all the accused persons were hiding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y did not find any weapon. It is a few days thereafter when the appellant was arrested. The prosecution alleges that on the basis of his statement the recovery of the gun was made from the Chabutra near the house of A-3. The panch witness for this recovery has not supported the prosecution case. In such a situation and in the background of the fact that on an earlier search of the house, the police were unable to recover this gun it becomes doubtful whether a recovery as stated by the investigating agency can be believed, more so the panch witness has not supported the recovery. Therefore, in our opinion even the recovery allegedly made at the instance of the appellant cannot be relied upon. If this be the conclusion in regard to the prosecution case we think it is not necessary to go into the defence put forth by the appellant because the prosecution should either succeed or fail on its own case. In the instant case we agree with the learned Sessions Judge that the prosecution has not established its case even against the appellant and the High court was in error in selectively accepting the evidence tendered by the prosecution in regard to the appellant to come to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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