Punjab-Haryana High Court
Bhupinder Singh vs State Of Punjab on 2 September, 1998
Equivalent citations: 1999CRILJ396
Author: B. Rai
Bench: B. Rai
JUDGMENT V.K. Bali, J.
1. Has the prosecution collected sufficient evidence to link the appellant Bhupinder Singh, a constable with the Punjab Police, with the crime alleged against him, is the question that has been mooted in the present appeal preferred by him challenging the order of his conviction and sentence dated April 24, 1996 passed by the learned Sessions Judge, Amritsar, He has been held guilty for intentionally causing death of one Manga and, thus, sentenced to undergo RI for life and to pay a fine of Rs. 2000/-, or in default of payment of fine to further undergo RI for six months. He has also been sentenced under S. 182, IPC to undergo RI for six months. The sentences have, however, been ordered to run concurrently.
2. The first version of incident leading to death of Manga came to be recorded by none other than appellant himself. He, while lodging the FIR, stated that he was employed as constable and was posted at police Station, Majitha. As per the orders of the SSP, Majitha, he was doing the CID duty. On 1-12-1993 he came to his village Bhuregill to enquire about the evening, he and his cousin Nirmal Singh son of Kulwant Singh had gone outside for answering the call of nature. He was having his service rifle .303 for his security bearing butt No. 488 and his uncle's son was having single barrel licensed. 12 bore gun of his father. At about 8-30 p.m. when they were a little behind the fields of Onkarjit Singh son of Lakhbir Singh, two unknown persons were seen coming from the opposite side. He asked them as to who were they but instead of giving the reply, they took position and started firing at them with an intention to kill them. They also took position and started firing in self defence towards them. The firing continued from both the sides for 15/20 minutes. When the firing stopped from the opposite side, he and his cousin stopped ahead and saw the dead body of an unknown person which was perforated with fun shots and near his right hand an SLR together with a magazine was lying and at some distance empty cartridges of AK 47 were also lying. The other person succeeded in running away taking the benefit of darkness. They remained at the spot out of fear. In the morning, Sain son of Shankar, resident of Bhuregill came at the spot. He after leaving Nirmal Singh son of Kulwant Singh and Chowkidan Sain safeguard the dead body, was going to the police station Ramdass for giving the information when SI Dilbag Singh met him and he got recorded his statement to SI/SHO Dilbag Singh, PS Ramdass.
3. It appears that the version given by the appellant did not find favour with the police authorities and, therefore, an other FIR, this time against the appellant, came to be registered on December 22, 1993, Baldev Raj Sharma, SSP, Majitha addressed a letter to the SHO, PS Ramdas on the date aforesaid. It was stated in the letter aforesaid that during the investigation of case No. 66/93, dated 2-12-1993 under section 307/34, IPC, 25/54/59 of the Arms Act, 5 TDAP Act, Police Station Ramdass, which had been got registered by the Bhupinder Singh constable has been found false because in that case the SLR No. 15365889 which was recovered from near the dead body was stolen by this Constable from the police station Majitha when he was posted there. At that time of investigation, SHO Dilbag Singh found that no cartridge was found to be fired from this SLR and only two magazines and four live cartridges were found and Nirmal Singh, as stated by him to be the eye witness and accompanying him, was actually not present at the spot. This constable, with the connivance of Jaswant Singh resident of Bhuregill, captured one youngman, who was later identified as Manga alias Baldev Singh son of Teja Singh, resident of Village Lidher and took him to his village, where he and his companion Jaswant Singh had shot dead Manga with his rifle .303 which was given to him for his safety in the fields of Bakshish Singh, resident of Bhuregill. The cause of this murder was that he misused his power and position to get the promotion. The investigation of the said case was done by shri Baldev Raj Sharma, SSP and case No. 66/93 was cancelled. The SSP, thus, directed the SHO concerned to register an FIR under sections 302/380/34, IPC and 25/54/59 of the Arms Act. After investigation, challan was presented against the appellant and he was tried for an offence under section 302, IPC for having intentionally caused the death of Manga, with the result, as already indicated above.
4. The prosecution, in its endeavour to bring home the offence against the appellant, examined Dr. R. D. Gorea, Assistant Professor, Department of Forensic Medicines and Toxicology, Amritsar as PW. 2. He stated that on December 2, 1993 at 3 p.m. he conducted the post mortem examination on the dead body of a unknown male, aged 25/26 years. The dead body was brought to mortuary along with the police papers on that day at 2-10 p.m. by HC Narinder Singh and Constable Jasbir Singh of PS Ramdas. The dead body was identified by Nirmal Singh and Sain chowkidar son of Shankar. The doctor found following injuries on the dead body of unknown male, aged 25/26 years :
"1. A lacerated wound 0.8 cm in diameter in the right temporal region. Margins were inverted. Abrasion collar was present.
2. A lacerated wound 5 x 4 cm in the occipital region of the head on right side. Margins were evereted. Clotted blood was present. On dissection, injury No. 1 communicated with injury No. 2 through membrane, brain and fracturing bone underlying the injury. Clotted blood was present in the track.
3. A lacerated wound 3 x 0.8 cm in diameter on the right fore arm on its outer aspect, margins were inverted. Clotted blood was present.
4. A lacerated wound 1 x 0.9 cm, 3 cm medial to injury No. 3. On dissection, injury No. 3 communicated with injury No. 4 through soft tissues.
5. A lacerated wound 1 cm in diameter on the front and right side of the chest 4 cm above the nipple. Margins were inverted. Clotted blood was present.
6. A lacerated wound 2 x 1 cm on the back and right side of chest in the supra scapular region. Clotted blood was present. On dissection, injury No. 5 communicated with injury No. 6 through interior chest wall fracturing rib, pleura, right lung and again fracturing rib under injury No. 6. About 700 CC of fluid and clotted blood was present in the pleural cavity.
7. A lacerated wound 1 cm in diameter, 4 cm lateral to injury No. 5. Margins were inverted. Clotted blood was present.
8. A lacerated wound 3 x 2 cm in the right interscapular region. Margins were everted. Clotted blood was present. On dissection, injuries 7 and 8 communicated to each other fracturing ribs through pleura and lungs.
9. A lacerated wound 2 x 1 cm on the left side of neck. Clotted blood was present. Margins were everted.
10. A lacerated wound 10 x 2 cm on the front of neck. The margins were everted. Clotted blood was present. On dissection, injury No. 9 communicated with injury No. 10 through soft tissues.
5. All the injuries were ante-mortem in nature and in the opinion of the doctor, cause of death in this case was due to laceration of the brain and lung which was sufficient to cause death in ordinary course of nature, probable time that elapsed between injuries and death was instantaneous and between death and post mortem about 12 to 24 hours. In this cross-examination, the doctor stated that the weapon which was used in this case would be a rifled one.
6. PW. 1 Madan Lal Clerk only stated that on February 16, 1994 he presented the papers of this case before Hans Raj Megh, additional District Magistrate, Amritsar and he accorded sanction for the prosecution of the appellant Bhupinder singh. Teja Singh father of the deceased, was examined as PW. 3. He stated that his son was to go to Bombay along with six/seven persons of his village. His companions were able to board the train but his son was not able to do so. Sikandar Singh son of Mukhtiar Singh was also to go along with his son. He had gone upto Delhi and had returned after two/three days. He told him that his son Manga was not able to board the train and after 15-20 days, they started searching for him. About 22 days after the day on which Manga was to board the train, the DSP had come to their village and shown him the clothes and photographs of Manga and he had identified the clothes and photographs of his son in the presence of a large number of villagers. PW. 4 Sat Pal Singh Patwari only stated that on December 20, 1993 he had prepared Sajra AKs PW. 4/A on the request of the police. PW. 5 Nirmal Singh stated that he was an agriculturist and the appellant was known to him. On December 2, 1993 he had gone to the house of appellant. When he went to his house, he found that he and his mother were present as she was not well. There was no other person in the company of the appellant at that time. This witness was declared hostile and cross-examined by the Public Prosecutor. In his cross-examination adverted to him by the PP, he stated that his statement was recorded by the police during investigation of the case near the Behak of Bakshish Singh. He did not mention in his statement that there was an other companion of the appellant present with him and did not give any description of the said person. He was confronted with his statement, Ex. PA where the witness had mentioned the presence of an other person and also gave details regarding him and his dress. He further stated that in his statement which was recorded in Mal Mandi where interrogation was done when he was taken into custody, he continued to state whatever the police wanted him to state and he put his signatures on each and every document as required by the police with a view to save himself from torture. He denied the suggestion that he had voluntarily made the statement, Ex. PA in which he had mentioned that the appellant had asked him to get ready if he wanted to be enrolled in the police department and meanwhile the appellant had informed him that he would come back after serving meals to his companion. There is no need to further mention the statement of this witness inasmuch as he did not support the prosecution version. Suffice it to say that he was confronted with his statement made before the police which he denied having made or simply stated that he had signed whatever documents the police wanted him to do so out of fear of torture. When cross-examined by the appellant, the witness stated that there was Bahak of Bakshish Singh in his fields. There was a hard-core terrorist of this area whose name was Avtar Singh Padri. He belonged to village Kawan. Said Avtar Singh was husband of wife's sister of Jaswant Singh. Avtar Singh Padri used to come to the Behak of Bakshish Singh quite often. Appellant was given a .303 rifle and he had been assigned the duty to keep watch in this area. He admitted that on the night of December 1-2 he and appellant were going along the bank of the canal minor (sic) at about 8-30 p.m. and that two persons came from the opposite side and there was an exchange of fire. He was also having a .12 gun. He also admitted that there was exchange of fire between them and those persons for 15/20 minutes. Thereafter, firing stopped and some person was heard saying Hai Hai. Appellant Bhupinder Singh then steeped further while he remained in his position and the appellant came back and said that one person was lying dead and his companion had already fled away. A number of empties were lying near the dead body and there was also a gun. He was not permitted by the appellant to come back during night and he told him that he would be recruited as constable. He continued to stay with him during night. In the morning, Chowkidar also came there. Appellant then asked him to stay near the dead body and he went to inform the police. Appellant came back with other police men at about 10-30 a.m. His statement was then recorded by him on December 2, 1993. The inquest report was also prepared in his presence. His signatures were also obtained on the inquest report. He identified his signatures on his statement which was part of the inquest report. After 6-7 days he was taken away by the police and kept in custody for 15 days. Dilbag Singh, PW. 6, SI/SHO, PS Mehta, stated that on December 2, 1993 he was working as SHO, PS, Ramdass. He along with SI Balbir Singh and other police officials, was coming for patrolling towards Gagge Mahal village. At about 7-45 a.m. when Bhupinder Singh appellant met them, he made statement before him which he recorded. The statement related to an encounter in which some unknown person was killed. This statement of appellant was sent to the police station for registration of the case and on its basis formal FIR was registered. He filled up the in quest report after going to the spot. Chowkidar signed it. When he went to the spot, he found blood stained earth there which was lifted and sealed into a parcel and was taken into possession. One SLR along with five live cartridges, two magazines and 23 empties were found lying there. The same was also taken into possession. There were four empties of .303 rifle which were also taken into possession. At some distance from there, there were empties of AK 47 and these were 17 in number. He also prepared site plan, Ex. PE and recorded the statements of witnesses. The clothes removed from the dead body by the doctor at the time of post mortem were produced before him by Narinder Singh HC on December 2, 1993 which were also taken into possession vide memo Ex. PF. During investigation, the witness felt that the report made by the appellant to the police was of suspicious nature. On this account, further investigation was done by DSP Balbir Singh. Thereafter, FIR No. 66 which was registered on the statement of the appellant was cancelled under the orders of the DSP and a new case was registered at the instance of the DSP himself. The DSP had taken into possession from him various documents which he had prepared in connection with the investigation of case FIR No. 66. In his cross-examination, he stated that he had recorded statement of Nirmal Singh on December 2, 1993. During the investigation conducted by him, he could not trace the origin of the SLR which was taken into possession from the spot. He admitted that when any fire arm and ammunition is issued to a police man, his signatures are obtained in the register. He also admitted that when from the Central Koth at head quarter, any ammunition and weapon is sent to the police station, then there is a proper authorisation in the form of Road Certificate after due entry in the register. He also admitted that the fire arms and ammunition are kept in the custody of the MHC of the police station and that if a weapon is stolen, a regular case is to be registered in that respect immediately. PW. 7 Constable Sital Singh stated that he had brought with him register No. 21 relating to road certificate. SLR No. 15365889 with Butt No. 357 was issued to ASI Satwant Singh on February 14, 1992 of Police Station Majitha. The entry was made in this regard on February 14, 1992. In his cross-examination, this witness also admitted that if any weapon is lost, then a regular FIR is recorded and enquiry held into the circumstances in which the loss had occurred. PW. 8 SI Satwant Singh stated that on December 22, 1993 he was posted as SHO, PS Majitha. Balbir Singh DSP had come to the police station that day. He made inquiry from him about the SLR His statement was recorded by the DSP. Gurnam Singh was working earlier as MHC in PS Ajnala as MHC. He was to handover the charge to Amrik Singh MHC and he had failed to account for the SLR with butt No. 357 and body No. 15365889. Orally, he had asked Gurnam Singh two three times to hand over this particular weapon to the new MHC but he had failed to handover the said weapon. The DSP had recorded his statement in this respect. In his cross-examination he stated that this particular gun did not come in his possession at any stage. Up to December 22, 1993 no FIR had been registered in PS Majitha regarding the theft of that weapon and he remained in the police station upto December, 1994. He joined that Police Station some time in the year 1993 but he did not exactly remember the date of his posting there. PW. 9 Satbir Singh MHC stated that on August 6, 1993 he was posted as MHC of PS Majitha. He took over the charge from the previous MHC Gurnam Singh. At the time of handing over charge to him, one SLR No. 1536889 was not handed over to him. Two magazines and 50 cartidges were also less which were not given to him. Gurnam Singh had been transferred as MHC to PS Ajnala and he was not in a position to hand over the complete charge of the arms and ammunition to him and for this purpose he used to come from ajnala but the charge remained incomplete. He had orally conveyed to the SHO that this particular weapon and magazines and ammunition were not given to him in charge. In his cross-examination he stated that arms, ammunition, cash, case properties and also the entire records remain in custody of the MHC. The entire quantity of arms and ammunition is mentioned in the register No. 16 kept in the police station. The entry regarding the ammunition and also these arms is made for the first time in register No. 16 when it is received in the police station. No entry is made in this register when the arms and a mmunition is distributed among various officials. He further stated that a separate register is kept where entries are made regarding distribution from time to time but that register is not a prescribed one. This witness also stated that if any weapon is lost, an FIR is written and there is a regular enquiry about it. No formal FIR was written in connection with this particular weapon and no entry was made in the DDR regarding this particular fire arm being missing. The particular register in which entries are made regarding distribution of arms was also shown by him to the DSP who recorded his statement. PW. 10 Gurnam Singh MHC stated that the appellant was posted at PS Majitha during 1992 and he had distributed SLR No. 15365889 and butt No. 357 to the appellant. He could not tell as to on which date the SLR was given to the appellant. He, however, stated that the signatures of the officials are obtained as and when a weapon is distributed and an entry is also made in the register kept in the police station for the purpose. He had not brought the register with him that day. That register was taken into ossession by DSP Balbir Singh in the course of inquiry which was held regarding this weapon. The said register had not come in his custody at any later stage. He was then transferred to Ajnala on July 9, 1993. He could not give charge of this weapon to his successor as this particular weapon was already distributed by him to the appellant. On the request of the PP the matter was adjourned and the witness was asked to bring the register in which entry regarding distribution of the weapon was made. The request of the PP was accepted. The witness then appeared on January 24, 1996 for his further examination. He stated that he had brought with him the arms distribution register kept in the police station. As per entry in the said register, on March 15, 1993 one SLT No. 357/15365889 was given to appellant. The magazines of this SLR and 50 rounds were also distributed to him. In his cross-examination he admitted that the register that he had brought was not a prescribed one. This register was maintained with a view to keep a memorandum regarding distribution of the weapons. There was another prescribed register kept in the police station in which particular arms on allotment to the police station are entered. On the request made by the defence counsel, the matter was once again adjourned and the witness was asked to appear on the next date of hearing. When the witness came to depose for the third time, he stated that he did not remember the exact month when he was posted in police station, Majitha as MHC in the year 1992. He was transferred from the police Station on July 9, 1993. Avatar Singh was the MHC of the police station before he joined the police station in the year 1992. He took over the charge from Avatar Singh and not from Amrik Singh. He further stated that Avatar Singh had remained posted only for ten days and on this account formal charge was taken by him from Sucha Singh, who was MHC earlier to Avatar Singh. Road certificates were also received whenever any fire-arms were allotted to a particular police station and were brought there. MHC present in the PS would sign the road certificates and he also used to make entries in the Rojnamcha. He did not receive the particular SLR. Only the concerned MHC who had received this SLR could reply if any entry was made in the Rojnamcha or not. In register No. 16 which he had brought, there was, however, a mention that DDR No. 14 dated February 14, 1992 was entered in this respect. Entry dated 14-2-1992 had not been made by him and he could not identify the handwriting of the official who made this entry. He admitted that after recording the details in the entry in column No. 2, the words "DD No. 14/14-2-1992" were mentioned. On the request of the counsel, a photo copy of this entry dated February 14, 1992 was placed on record and exhibited as Ex. DB. There was no mention in this entry as to how the arms were distributed and among whom. During the period PW 10 remained posted in the PS, he did not make any written complaint to any officer regarding this particular fire-arm nor he made any particular entry in his hand in his respect in any register or Rojnamcha. He denied the suggestion that particular SLR was not distributed by him to the appellant. He admitted that in the register that he had brought there were some blank pages. PW-11 Rajwinder Singh only deposed with regard to photographs of the dead body that he had taken. PW-12 HC Gurvinder Singh tendered his affidavit, Ex. PJ in evidence. In his cross-examination, he stated that the case property in connection with case FIR No. 66/93 was deposited. On December 22, 1993 DSP Balbir Singh had deposited blood-stained earth, clothes of the deceased, one identity card of the appellant, 10 rounds of. 303 rifle and one rifle. 303, one bandolior and also currency note of Rs. 10/-. The particular rifle mentioned above was earlier issued in the name of the appellant. This rifle was of. 303 bore which was issued to him on November 2, 1993. Pritam Singh Sarpanch PW-13 stated that he was called by the police in P.S. Jandiala Guru on December 22-23, 1993. There was one Daljit Singh Dalla belonging to their village, who was a terrorist. Some dead body was lying in the police Station and he was called to identify the said dead body being that of Daljit Singh Dalla or not. He went to the Police Station and observed that the dead body was not of Daljit Singh Dalla. PW-14 Balbir Singh, retired DSP deposed with regard to the steps that he had taken while investigating this case. In his cross-examination, he stated that he did not know if during the days of terrorism, certain public persons who were deployed as Cats were given any official weapons. He did not take into possession any road certificate relating to this particular weapon vide which this rifle was allotted to particular official. He did not take into possession any order of any officer vide which particular weapon was allotted to the appellant. When the particular weapon became missing, the MHC concerned was Gurnam Singh.
7. When examined under S. 313 of the Code of Criminal Procedure, appellant stuck to the version given by him while lodging the FIR, mention whereof has been made above.
8. We have heard Mr. R. S. Cheema, learned counsel representing the appellant and Mr. S. S. Dhaliwa, learned Deputy Advocate General, Punjab and have also carefully gone through the records of the case. Mr. Cheema vehemently contends that there is no admissible evidence available on records of the case which may even remotely link the appellant with the commission of crime. The statement of appellant, on the basis of which only FIR came into being, cannot in any circumstance be held to be an admission or confession made by him of his guilt. The prosecution cannot succeed by simply saying that the statement made by the appellant should be accepted only to this extent that it is because of firing resorted to by him that Manga died. If statement of the appellant is to be believed, it has to be believed as a whole and if the statement of the appellant has to be rejected, being a clever attempt on his part to shield his crime and to further show that in fact and reality the appellant killed an innocent man simply with a view to earn award, the prosecution must stand on its own legs, further contends the learned counsel.
9. Mr. Dhaliwal, learned Deputy AG, Punjab, with equal vehemence, contends that the incident having been admitted, the prosecution had only to prove that it was not a case of encounter as alleged by the appellant and there is sufficient evidence to show that Manga died on account of injuries sustained by him by a. 303 bore rifle which was issued to none other than the appellant.
10. We have given our anxious thoughts to the rival contentions of learned counsel for the parties but have no hesitation in holding that the prosecution has miserably failed to bring home the offence against the appellant. It could not be disputed during the course of arguments that the statement of appellant, if accepted, has to be accepted as a whole. The prosecution cannot depend upon inculpatory part of the statement made by the appellant and secure conviction on the basis of that alone. If that be so, the prosecution has to come up with an independent evidence to link the appellant with the crime or in any case to probabilise that the occurrence leading to death of Manga could not possible be result of firing between two parties, as is the case of the appellant.
11. Concededly, insofar as independent evidence is concerned, but for making an attempt to prove that the SLR which was found from the place of occurrence or was either stolen by the appellant or was issued to him, and then drawing a presumption that the appellant had tried to show it a case of encounter, by making it look like that the SLR was with the deceased and his companion, no other evidence whatsoever has been brought on records of the case. With regard to the SLR being stolen or having been issued to the appellant, evidence is not sufficient. In other words, from the evidence led by the prosecution, it cannot be said with certainty that the appellant had stolen the SLR or the same was issued to him. It may be recalled that initial case of the prosecution, as culled from the prosecution version, is that the appellant is alleged to have stolen the SLR. The theory was, however, given a complete go-bye at the time of evidence and the prosecution then endeavoured to prove that the SLR was legally issued to the appellant. The shift brought about in the prosecution version that the SLR was issued to the appellant, appears to be with a purpose. Every relevant witness, who has been examined on the issue aforesaid, had to candidly admit that if arms and ammunitions were stolen, a proper FIR is registered and investigation made. Concededly, insofar as SLR in question is concerned, neither any FIR was registered nor any enquiry was made. There being, thus, a lacuna in the evidence of the prosecution and in the allegation that SLR had been stolen, a crude attempt was made to prove that the SLR in question as such had been issued to the appellant. We are of the view that even in that endeavour the prosecution has miserably failed. PW-7 Constable Sital Singh stated that he had brought with him register No. 21 relating to road certificates and SLR in question was issued to ASI Satwant Singh on February 14, 1992 of Police Station Majitha. The entry in this regard was made on February 14, 1992. As per the statement of this witness, thus, the SLR in question was issued to ASI Satwant Singh on February 14, 1992. PW-8 S.I. Satwant Singh, to whom the SLR was said to have been issued, deposed that on December 22, 1993 he was posted as SHO, P.S. Majitha. He stated that Gurnam Singh, who was earlier working as MHC in P.S. Majitha, was transferred to P.S. Ajnala. He was to handover the charge to Amrik Singh, MHC but he had failed to account for the SLR in question. Orally, he had asked Gurnam Singh two-three times to had over this particular weapon to the new MHC but he had failed to do so. From the deposition made by this witness, it is, thus, clear that ASI Satwant Singh, to whom the SLR was issued, had not deposited the same with the MHC Gurnam Singh or his predecessor Amrik Singh, MHC. In his cross-examination, the witness aforesaid further stated that this particular gun did not come in his possession at any stage and up to December, 22, 1993 no FIR had been registered in this regard in P.S. Majitha. The witness remained posted in the Police station Majitha up to December, 1994. PW-9 Satbir Singh MHC stated that on August 6, 1993 he was posted as MHC of P.S. Majitha. He took over the charge from the previous MHC Gurnam Singh. At the time of handing over to him, the SLR in question was not handed over to him. Two magazines and 50 cartridges were also less which were not given to him. Gurnam Singh had been transferred as MHC to P.S. Ajnala and he was not in a position to hand over the complete charge of the arms and ammunition to him and for this purpose he used to come from Ajnala but the charge remained incomplete. He had orally conveyed to the SHO that this particular weapon and magazines and ammunition were not given to him in charge. PW. 10 Gurnam Singh, MHC, had, however, a different story to tell. He stated that the appellant was posted at P.S. Majitha during 1992 and he had distributed SLR No. 15365889 and butt No. 357 to the appellant. He, however, could not tell as to on which date the SLR was given to the appellant. He further stated that the signatures of the officials are obtained as and when a weapon is distributed and an entry is also made in the register kept in the police station for the purpose. He had not brought the register with him on the date he was examined as the said register was taken into possession by DSP Balbir Singh in the course of inquiry which was held regarding this weapon. On the request of the PP the matter was adjourned and the witness was asked to bring the register in which entry regarding distribution of the weapon was made. The witness thus appeared on January 14, 1996 for his further examination. He then stated that he had brought with him the arms distribution register kept in the police station and as per the entry in the said register, on March 15, 1993 one SLR was given to appellant. The magazines of this SLR and 50 rounds were also distributed to him. In his cross-examination he admitted that the register that he had brought was not a prescribed one. This register was maintained with a view to keep a memorandum regarding distribution of the weapons. There was another prescribed register kept in the police station in which particular arms on allotment to the police station are entered. This time, on the request made by the defence counsel, the matter was once again adjourned and the witness was asked to appear on the next date of hearing. When the witness came to depose for the third time, he stated that he did not remember the exact month when he was posted in police station Majitha as MHC in the year 1992. He was transferred from the Police Station on July 9, 1993. Avatar Singh was the MHC of the Police Station before he joined the Police Station in the year 1992. He took over the charge from Avtar Singh and not from Amrik Singh. He further stated that Avatar Singh had remained posted only for ten days and on this account formal charge was taken by him from Sucha Singh, who was MHC earlier to Avatar Singh. Road certificates were also received whenever any fire-arms were allotted to a particular police station and were brought there. MHC present in the PS would sign the road certificates and he also used to make entries in the Rojnamcha. He did not receive the particular SLR. Only the concerned MHC who had received this SLR could reply if any entry was made in the Rojnamcha or not. In register No. 16 which he had brought, there was, however, a mention that DDR No. 14 dated February 14, 1992 was entered in this respect. Entry dated 14-2-1992 had not been made by him and he could not identify the handwriting of the official who made this entry. He admitted that after recording the details in the entry in column No. 2, the words "DD No. 14/14-2-92" were mentioned.
He also admitted that there was no mentione in this entry as to how the arms were distributed and among whom. During the period he remained posted Police Station Majitha, he did not make any written complaint to any officer regarding the SLR nor the made any entry in his hand in this respect in any register or Rojnamcha. He admitted that the register had some blank pages.
12. From the evidence that has been fully discussed above, it cannot be said with certainty that the appellant alone was issued the SLR which was found from the place of occurrence. The deposition made by PW 10 is not in tune with the statements made by PWs. 7, 8 and 9. Insofar as PW 10 is concerned, he had to be called thrice and it is only on his last appearance in the Court that he brought the register where there is said to (be) an entry regarding issuance of SLR in question to the appellant. The register was not a prescribed one and there were blank pages. There was also no mention in the register as to how the arms were distributed and among whom. The evidence of the prosecution with regard to issuance of the weapon, i.e. the SLR that was found from the place of occurrence, is shrouded in mystery. As mentioned above, prosecution has led no other evidence but for to show that the SLR either stolen by the appellant or issued to him, was found from the place of occurrence and inasmuch as the appellant himself had thrown it at the spot, with a view to make it out a case of encounter, therefore, the version given by him, while lodging the FIR, reference whereof has been made above, was false and that should be enough to prove the guilt to the appellant. If the aforesaid factum, i.e. of the appellant throwing the SLR at the spot with a view to make it a case of encounter, is disbelieved, the entire prosecution case has to pack up. That apart, the prosecution has led no evidence from where it may appear that it could not possibly be a case of cross-firing between the appellant and the deceased and his companion. The investigating officer did nothing to improbabilise the version of the appellant. The empties of the SLR found at the spot were not sent for comparison to show as to whether the same were fired from the same very SLR or not. The empties of AK 47 found from the spot were also not sent for any kind of comparison. Further, no attempt was made to find out as to wherefrom the empties of AK 47 had come. The investigating officer had also not shown the place from where the dead body of Manga was found and the place from where the the appellant might have fired at him. He also did not show distance of the empties from various fire-arms and from dead body of Manga. As mentioned above, no evidence at all has been brought on record to show that it could not be a case of cross-firing resulting into death of Manga.
13. Insofar as SLR having been stolen by the appellant or having been issued to him is concerned, we have already rejected the prosecution version on that count. We are further of the view that if the SLR had actually been issued to the appellant, there was no question for him to have thrown the same at the place of occurrence. By doing so, he was only to create evidence against himself. Further, the very fact that empties of AK 47 were also found at the spot and prosecution did not lead any evidence to show that the same were also handi-work of the appellant, i.e., that he alone had thrown the same at the spot, leads us to draw an inference that the version of the appellant as given by him in the FIR, referred to above, could also be true.
14. Looked from any angle, we are of the view that the prosecution has miserably failed to bring home the offence against the appellant. Consequently, we allow this appeal and set aside the impugned order of conviction and sentence dated April 24, 1996 recorded by the learned Sessions Judge, Amritsar. Appellant be set at liberty forthwith, if not required in any other case.
15. Appeal allowed.