Anwar @ Bhugra vs The State Of Haryana

ANWAR @ BHUGRA … Appellant

Versus

STATE OF HARYANA … Respondent

JUDGMENT

Rajesh Bindal, J.

1. The appellant convicted by the trial court and his

conviction and sentence having been confirmed by the High Court

under Sections 394 and 397 of the Indian Penal Code, 1860 as well

as under Section 25 of the Arms Act, 1959, has filed the present

appeals before this Court.

2. The facts as available on record are that FIR No. 104

dated 05.04.1994 was registered at P.S. Gharaunda, (Haryana)

under Sections 394 and 397 of the Indian Penal Code, 1860 (for

short ‘the IPC’). On 04.04.1994, Jahid (PW-4), the complainant had Signature Not Verified Digitally signed by Indu Marwah Date: 2023.03.29 17:43:53 IST Reason: come to village Barsat for purchasing grocery items from his village

1 Rana Majra. While he was returning to his village after purchasing

the goods, he was apprehended by three persons near the

cremation ground at about 8.00 P.M. They asked him to hand over

whatsoever he had otherwise he would be eliminated. When Jahid

(PW-4), the complainant, disclosed to them that he possessed only

grocery items, two of them started giving him fist and leg blows.

The accused were armed with drant, knife and pistol. The person

who was having knife forcibly took his wrist watch.

3. In the meanwhile, a tractor came from side of village

Barsat. Seeing the same, Jahid (PW-4), the complainant raised hue

and cry for help. Harun Ali (PW-6) and Jain Singh (PW-5) were

sitting on the tractor. They tried to catch hold of three persons. In

the scuffle, the person who was having a drant gave a blow from its

reverse side which struck Jahid (PW-4), the complainant, below his

right eye. Another blow struck his left shoulder. Jain Singh (PW-5)

was also inflicted injuries with the drant. The person who was

having knife inflicted injuries to Harun Ali (PW-6). His purse

containing ₹20/- and an identity card were taken away. Other

person took away purse from the pocket of Jain Singh (PW-5)

containing ₹15/-. In the meantime, Mahinder Singh a resident of

village Balehra came on the spot and on seeing those three persons

tried to run away, but one of them who was armed with a knife was

2 apprehended. He disclosed his name as Satpal son of Radhu Ram,

resident of village Sadarpur. He also disclosed the names of other

accused persons i.e Anwar @ Bhugra, son of Manga Ram resident

of Mundi Garhi having pistol and Bablu @ Om Prakash, son of Ram

Singh, resident of Baroli having drant.

4. Taking advantage of the darkness even Satpal ran away

from the spot. This was the basis of the FIR. Accused were

apprehended on 12.04.1994 and recoveries were made. A country

made pistol of .12 bore was recovered from the possession of the

appellant, following which FIR No. 111 of 1994 was registered at P.S.

Gharunda, (Haryana) u/s 25 of the Arms Act, 1959.

5. The prosecution produced eight witnesses in support of

the case in FIR No.104 of 1994. After trail, the learned Additional

Sessions Judge, Karnal convicted Anwar@ Bhugra, son of Manga

Ram, Satpal son of Radhu and Om Parkash @ Bablu, son of Ram

Singh u/s 394 and 397 IPC and sentenced them to undergo

imprisonment for a period of seven years along with fine of

₹2,000/-. In default for payment of fine, imprisonment of 1-3/4

years was provided. In FIR No.111 of 1994, the trial court convicted

the appellant under Section 25 of the Arms Act, 1959 and ordered

to undergo rigorous imprisonment for a period of three years and

to pay a fine of ₹ 500/-. In appeal, by a common judgment,

3 conviction and sentence awarded by the trial court in both the

cases was upheld.

6. The argument raised by the learned counsel for the

appellant is that the story built by the prosecution on the basis of

the complaint is concocted. In fact, no such incident had taken

place. It is alleged that the appellant was carrying pistol, however

there is nothing either in the complaint or in the evidence brought

on record that the same was ever used. Recovery of the pistol itself

is in doubt as the memo of the personal search after the arrest of

the appellant mentions that nothing was found at the time of his

personal search. In the recovery memo of the pistol, it is mentioned

that during the course of investigation the appellant was arrested

and at the time of arrest his personal search was carried out and

from the left pocket of his pyjama, one country made pistol (Cutta)

of .12 bore and from his right pocket three live cartridges were

recovered. This itself was contrary to the memo of personal search.

The recovery of the purse was also seriously doubtful as in the FIR

there is no allegation that purse was taken by the appellant.

7. Further, there are serious defects and anomalies in the

deposition of the complainant/ Jahid (PW-4). Jain Singh (PW-5), who

was stated to be a person sitting on the tractor on which he reached

the place of incident, did not support the prosecution version. In his

4 statement recorded for the case under the Arms Act, Jain Singh

denied recovery of any weapon of offence in his presence. He was

declared hostile. Even in his cross-examination, he denied recovery

of any weapon as he stated that his signatures were got on certain

blank papers by the police. Similar was the position in the

statement of Harun Ali (PW-6) who also did not support the

prosecution version. He was declared hostile and cross-examined

by the prosecution.

8. On the other hand, learned counsel for the State

submitted that the entire prosecution version has been duly

supported by the witnesses. Merely because some of them were

won over and had to be declared hostile will not demolish the case

of the prosecution. There is concurrent finding of facts recorded by

the courts below and it does not call for interference by this Court.

9. Heard learned counsel for the parties and perused

relevant referred record. As per the version given by the

complainant, the case sought to be made out is under Sections 394

and 397 IPC as the complainant was waylaid. The incident is stated

to have taken place at 8.00 P.M on 04.04.1994. The appellant, as

per the version of the complainant and the official witness, was

carrying a pistol with him, however, there is nothing on record

either in the form of statements of the witnesses or even the

5 medical report that the pistol was ever used. Further, the recovery

of pistol from the appellant is also seriously doubtful. As per the

memo prepared at the time of his personal search, it is mentioned

that nothing was recovered from him. However, in the memo of

possession regarding the pistol, it is stated that during the course of

the investigation, the appellant was arrested and his personal

search was carried out and from the left side pocket of his pyjama

country- made pistol was recovered. It is strange to note that the

appellant will continue to carry the pistol in his pocket days after

the incident and will be arrested along with that. The two versions

of the prosecution namely the memo of his personal search and the

memo of possession of country made pistol demolish the case of

the prosecution.

10. Two witnesses, namely, Jain Singh (PW-5) and Harun Ali

(PW-6) who, according to the complainant and the prosecution, had

reached the scene of crime on a tractor, did not support the

prosecution version, neither for the scene of crime nor for the

recoveries. Jain Singh (PW-5) in his statement states that it was

Bablu who snatched his purse which contained ₹15. Harun Ali (PW-

6) turned hostile. No allegations were made against the appellant.

The presence of the appellant at the crime site becomes highly

doubtful.

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11. There was improvement in the statement of Jahid (PW-4),

the complainant, which makes the case of the prosecution doubtful.

In the FIR, he stated that there were two persons on the tractor

namely Jain Singh and Harun Ali. However, in his statement before

the court, he said that a child was driving the tractor and two

persons were sitting on that. All the three came down for his help.

12. Moreover, there are major discrepancies in the FIR and

the evidence of Jahid, the complainant (PW-4). In the FIR, he states

that the person holding Drant (Bablu) forcibly took away the purse

from the right side pocket of Harun Ali (PW-6) which was containing

his identity card and ₹ 20 and the other person (none specified)

took away the purse of Jain Singh (PW-5) from his pocket which had

₹15 and tobacco. However, in his evidence he states that Bablu

snatched his purse and Anwar, the appellant, snatched the purse

from Harun Ali (PW-6).

13. Mahinder Singh who is named in the FIR and on whose

arrival at the scene of crime the accused ran away, has not been

produced by the prosecution. He was the material witness.

14. From the aforesaid material on record, the presence of

the appellant at the scene of crime and recovery of pistol from him

becomes highly doubtful and the guilt of the appellant having not

been proved beyond reasonable doubt, conviction and sentence

7 cannot be upheld.

15. Accordingly, the appeals are allowed. The judgment and

order passed by the High Court and the Trial Court as regards the

appellant are set aside. Bail Bonds submitted by him stand

cancelled.

.….………………J. [Abhay S. Oka]

.….………………J. [Rajesh Bindal]

New Delhi March 29, 2023.

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