1. This is an appeal by Mehar Singh. He has been convicted under Section 4 of the Explosive Substances Act 1908 and sentenced to rigorous imprisonment for two years.
2. The facts of the prosecution case are as under :-
3. The appellant is resident of village Peringiri. On receipt of secret information Harbans Singh, A S. I. Accompanied by Gian Chand , Major Singh and Nazar Singh visited the house of the appellant on May 7, 1966. On interrogation the appellant mad disclosure statement Exhibit P. A. saying that he had kept concealed a hand grenade and five cartridges in a corner of the deohri jointly used by him and his brother Tara Singh. He led the police party and got the hand grenade P. 1 along with five cartridges recovered from that corner. The hand grenade and the cartridges were taken into possession by Harbans Singh A. S. I. Memo pertaining to their recovery is Exhibit P. B. It is attested by Major Singh and Nazar Singh. Harbans Singh A. S. I. Sent ruqa Exhibit P. C. incorporating the facts pertaining to the recovery of the hand grenade and cartridges. On the basis of that ruqa first information report Exhibit P. C/1 was registered at Police Station Sirhali.
4. The hand grenade was examined by Inspector of Explosives, North Circle, Agra. By report Exhibit P. E., he gave the opinion that the hand grenade P. 1 recovered was an explosive substance.
5. In his statement under S. 342, Cr. P. C. made on March 24, 1969 the appellant pleaded that while he was working in his field, the Police party came there and enquired him where his brother Tara Singh was as he was wanted by the police in connection with the recovery of some illicit arms, that he was made to march from there to the police station and that hand grenade was foisted on him in the precincts of the police station.
6. The appellant was also separately tried under Section 25 of the Arms Act, 1959 for recovery of five cartridges made in pursuance of the above referred to disclosure statement and on the basis of the recovery memo referred to above. To prove the case the recovery of those five cartridges that case of prosecution was supported by the testimony of Major Singh and Nazar Singh, who have appeared as witness in the present case. Major Singh and Nazar having not toed the line of prosecution version pertaining to the recovery of five cartridges at the instance of the appellant, the appellant was in that case acquitted by judgment dated April 25, 1968. The appellant relied in his defence on that judgment claiming acquittal in the present case as well.
7. While assailing the evidence of Major Singh P. W. Sri Nandlal Dinghra, appearing for behalf of the appellant contended that whereas the witness stated before the Committing Magistrate , that the police has raided the house of the appellant and made search for grenade in his house, the witness at the trial said that it was in pursuance of disclosure statement exhibit P. A. made by the appellant that the hand grenade P. 1 was recovered from a corned of the deohri. Before the Committing Magistrate, the witness stated that something wrapped in a piece of cloth was seen by the witness in the Gurudwara of the village and hand grenade was not recovered in pursuance of any statement made by the appellant. On the other hand, at the trial, the witness said that a hand grenade had been recovered at the instance of the appellant on a disclosure statement made in course of his interrogation by Harbans Singh A. S. I. Before the trial Court the witness said that the constables while searching the house dug out the earth from the corner of the deohri and it was as a result of their digging and the hand grenade was recovered. The witness thus refused to toe the line of prosecution version that it was the statement made by the appellant that led to the recovery of the hand grenade.
8. When this witness was confronted with the above report to discrepancies, he had the audacity to deny that he ever made such statements before the Committing Magistrate.
9. The evidence of Nazar Singh P. W. is also analogous to that of Major Singh P. W. Before the Committing Magistrate he stated that after he had been shown hand grenade P. 1 in the Gurudwara village he was made to append, his thumb marks to the disclosure statements Exhibit P. A. and Recover Memo Exhibit P. B., whereas at the trial he toed the prosecution version and stated that the recovery of the hand grenade followed in the wake of the disclosure statement made by the appellant. Before the Committing Magistrate this witness stated that no disclosure statement was made in his presence nor anything was recovered in his presence but his thumb marks were obtained on blank papers. At the trial, he averred that the hand grenade was recovered after disclosure statement had been made by the appellant and he led the police party to the corner of the deohri where he disclosed and pointed out by the appellant the hand grenade had been buried and kept concealed. When the witness was confronted with his above contradictory statements made before the Committing Magistrate he flatly denied that he had made any such statements before that Court.
10. Thus, both the eye-witnesses having refused to support the case of the prosecution as to hand grenade having been recovered in pursuance of disclosure statement made by the appellant, they went back upon the stand taken by them before the committing Magistrate and took a somersault in choosing to support the prosecution at the trial. The statements by them before the committing Magistrate and the trial court were made on oath. They have scant regard for truth. No implicit reliance can be had on their testimony. They were independent witnesses. In the face of their sworn conflicting statements, it will not be safe to convict the appellant on the solitary statement of police officer Harbans Singh A. S. L., interested as he is in the success of the prosecution case.
11. Harbans Singh A. S. I. Has admitted that the deohri, from the corned of which the hand-grenade P. 1 was recovered, is jointly owned and possessed by the appellant and his brother Tara Singh. If the deohri from which the hand grenade was recovered is jointly possessed and is being used by both the brothers, the probability of the hand grenade having been buried by Tara Singh cannot be excluded. Finding of the exclusive possession of the deohri by the appellant could not be given when according to Harbans Singh A. S. I., the deohri is admittedly in joint use and occupation of both the appellant and his brother Tara Singh.
12. Hand-grenade P. 1 and five cartridges were recovered in pursuance of the same transaction of disclosure statement Exhibit P. A. proved in this case and the recovery in pursuance of that disclosure statement effected as per recovery memo Exhibit P. B. The appellant was separately prosecuted for unlawful possession of five cartridges. The prosecution version in that case was supported by the testimony of the same witnesses as in the present case, namely Major Singh and Nazar Singh. Major Singh and Nazar Singh gave a complete go-by to the prosecution version in that case. That being the state of prosecution evidence, the trial Court held that the prosecution had failed to prove the guilt of the accused and acquitted the appellant. The transaction of the recovery of hand grenade P. 1 in the present case is inseparable from the recovery of five cartridges effected in one and the same transaction in pursuance of one and the same disclosure statement made by the appellant. The story of the prosecution as to five cartridges having been recovered in pursuance of the same disclosure statement made and the effecting of recovery on the basis of the same recovery memo as made in the present case, was the subject-matter of prosecution in the other case. The appellant has been acquitted of the offence of unlawful possession of five cartridges recovered jointly with the hand-grenade in the present case. Their Lordships of the Supreme Court in Lalta v State of Uttar Pradesh reported in 1968 Criminal Reporter 259 = (AIR 1970 Sc 1381)observed as follows :
'Where an issue of fact has been tried by a Competent Court on a further occasion and finding has been reached in favour of an accused, such a finding would constitute estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for different offence but as precluding the reception of evidence to disturb that finding of fact, when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403(2) of the Code of Criminal Procedure.'
13. In course of his statement under Section 342, Code of Criminal Procedure made on March 24, 1969, the appellant placed before the trial Court certified copy of the judgment dated April 25, 1968 Exhibit D. A. inviting the attention of the Court that in the face of the acquittal earned by the appellant, he could not be tried in the present case for possession of hand-grenade. The trial Court, however, negatived the contention and gave no importance to the plea raised on behalf of the defence.
14. For the foregoing reasons, I will allow the appeal, set aside the conviction and sentence of the appellant and acquit him.
15. Appeal allowed.