2007 Supreme(P&H) 182

2007(2) LAW HERALD (P&H) (DB) 1017
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Adarsh Kumar Goel
The Hon’ble Mr. Justice H.S. Bhalla
Murder Reference No.3 of 2006 with Criminal Appeal No. 588-DB of 2006 and Criminal Appeal No. 920-DB of 2003
The State of Punjab
v.
Sher Singh
Decided on 31.01.2007

MPORTANT POINTS
Independent Witness--Non-joining of an independent witness at the time of recovery of the arms and ammunition does not cause any dent in the prosecution version.
Cross-examination of witness--Cross examination is an unequal duel between a rustic and refined lawyer.
Prohibited Arm--Rifle ‘A K 47’ does not come within the purview of prohibited arms, as defined under Section 2(1)(i) of the Act of 1959.

Headnote:(A) Evidence Act, 1872, Section 3—Interested witnesses--Court to scrutinise his evidence with more than ordinary care--Once the Court is satisfied that the evidence of an interested witness has a ring of truth such evidence could be relied upon even without any corroboration. (Para 12)

       (B) Criminal Procedure Code, 1973, Section 154--First Information Report--Delay of--Mere delay in dispatching the First Information Report is not a circumstance, which can throw out the prosecution case in its entirety.

        (Para 13)

       (C) Evidence Act, 1872, Section 3--Minor discrepancies--Minor discrepancies on trivial matters not touching the core of the case, would case not ordinarily permit rejection of the evidence as a while--Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with a individuals. (Para 15)

       (D) Evidence Act, 1872, Section 27--Disclosure Statement--Independent witness--Non-joining of--Investigating Officer made effort to join the witness but no one was ready to join--Non joining of an independent witness at the time of recovery does not cause any dent in the prosecution version. (Para 16)

       (E) Evidence Act, 1872, Chapter X, Section 137--Cross-examination of witness-Cross examination is an unequal duel between a rustic and refined lawyer. (Para 15)

       (F) Evidence Act, 1872, Section 3--Defence Version--Appreciation of--Weak type of defence evidence is certainly liable to be rejected. (Para 17)

       (G) Arms Act, 1959, Section 2(1) (i), 27(3), 5--Arms Rules 1962, Rule 3, Schedule I--Prohibited arms or ammunition--Rifle ‘AK’ 47-Murder--Death Sentence--Appellant used the stengun of his gunman-deceased--No notification placed on record which could spell out that the stengun and ammunition used in the case was a prohibited arm and ammunition--Death sentence awarded by Trial Court under Section 27(3) of the Act, held, improper--Sentence modified to seven years under sub Section (1) of Section 27 of the Act. (Para 21)

       (H) Penal Code, 1860, Section 302, 307--Criminal Procedure Code, 1973, Section 366--Arms Act, 1959, Section 27(3), 2(1 )(i)--Death Sentence--Murder--Appellant murdered his gunman with ‘a stengun ‘A.K. 47’ allotted to, deceased--Death sentence under Section 27(3) of Arms Act--Life imprisonment under Section 300 IPC besides sentence under Section 307 IPC--Prosecution established beyond reasonable doubt that appellant/DSP committed the murder of deceased-Conviction and sentence under Section 302 and 307 of the IPC against appellant affirmed-Death sentence awarded under Section 27(3) of the Act set aside and modified to seven years under sub Section 27(1) of the Act Inter alia held;

       (i) The provision contained in Section 27(3) of the Arms Act laying down 9 the minimum sentence as death sentence is unfair, unjust and unreasonable.

       (ii) The weapon in question, i.e., rifle ‘A K 47’ does not come within the purview of prohibited arms, as defined under Section 2(1)(i) of the Act of 1959. No notification has been placed on record, which could spell out that the stengun and the ammunition used in the instant case is prohibited arm and ammunition.

       (iii) Without issuance of notification declaring the present arms and ammunition as prohibited, the question of conviction under Section 27(3) of the Act would not arise.

       (iv) Present case is not covered under Section 27 (3) of the Act and death sentence awarded by the learned Additional Sessions Judge is liable to be set aside. (Para 21)