Punjab-Haryana High Court
Bhuptej Pal Singh vs State Of Punjab on 30 July, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-1633-SB-2002 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1633-SB-2002 (O&M)
Date of Decision: July 30, 2013
Bhuptej Pal Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. D.S. Sandhu, Advocate,
for the appellant.
Mr. Sandeep Chhabra, DAG, Punjab,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in this appeal is to the judgment of conviction and the order of sentence, dated 21.9.2002, passed by learned Additional Sessions Judge, Faridkot, whereby the appellant, Bhuptej Pal Singh, was held guilty for the offence punishable under Section 25 of the Arms Act and ordered to undergo rigorous imprisonment for one year besides payment of fine of ` 500/-; and in default to undergo further rigorous imprisonment for one month.
2. The facts in brief are that on 05.03.2000 a police party headed by Inspector Gurbaksh Lal (PW-2) was present in Rajindra Estate, 'D' Block, Moga, in connection with investigation of a case, titled as "State v. Dhanwant Singh and others", for the offences punishable under Sections 399 and 402, IPC. The Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 2 appellant, Bhuptej Pal Singh, was arrested and on his personal search, one country-made revolver of .38 bore (Ex. P1), in working condition, was recovered from the dub of his pant. When the revolver was unloaded, four live rounds of the same bore were recovered. The appellant could not produce any permit or licence for retaining the revolver (Ex.-P1) and the rounds (Exs. P2 to P5). Rough sketch of the revolver (Ex. PA/1) was prepared and the same was attested by Constable Harjinder Singh (PW4) and Constable Harmail Singh (not examined). The revolver and the rounds were taken into possession vide recovery memo (Ex. PB). Police Memo (Ex. PC) was sent to the Police Station for registration of the case, on the basis of which formal FIR (Ex. PC/1) was recorded by SI Jaswant Singh (not examined). Rough site plan (Ex. PD) was prepared and after disclosing the ground, the appellant was arrested. On his personal search, a sum of `120/- was recovered, which was taken into police possession vide separate recovery memo. Statements of the witnesses in terms of the Section 161, Cr.P.C., were recorded.
3. The revolver and the cartridges were sent to Armourer Kewal Krishan (PW3) for test and he submitted his report (Ex. PG). The sanction (Ex. PA) for the prosecution of the accused was obtained from learned District Magistrate and after completion of the investigation, report under Section 173, Cr.P.C., was presented before the learned Area Judicial Magistrate. Since the recovery of the revolver and the cartridges was in continuation of the preparation for committing decoity, therefore, the case in hand was also committed to the Court of Session for trial, as the Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 3 case for commission of the offences punishable under Sections 399 and 402, IPC, was already pending before the Court of Session.
4. The appellant was charged for the offence punishable under Section 25 of the Arms Act. He pleaded not guilty and claimed trial.
5. In order to substantiate its allegations, the prosecution produced the following witnesses:-
6. PW1 Harchan Sharma, Nazir in the Office of the District Magistrate, Moga, who proved the sanction (Ex. PA) granted for prosecution of the appellant for the offence punishable under Section 25 of the Arms Act.
7. PW2 Inspector Gurbaksh Lal of Police Station, City, Moga-I, deposed that on 5.3.2000, he was posted as a Station House Officer. Under the supervision of Deputy Superintendent of Police, Paramjit Singh, he and other police officials were present in Rajindra Estate, 'D' Block, Moga, City Moga, in connection with the investigation of a case under Sections 399 and 402, IPC. The appellant was apprehended and on his personal search, one country-made revolver of .38 bore in a working condition was recovered from the dub of his pant. The revolver was un-loaded and four live rounds were recovered. The accused could not produce any permit or licence for the possession of the revolver or the rounds, therefore, he was arrested in this case also. He also deposed regarding the remaining investigation conducted by him. In his cross- examination, he admitted that the revolver was not sealed on the Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 4 spot.
8. PW3 Kewal Krishan, Armourer, deposed that on 6.2.2000, HC Tara Chand had produced one revolver of .38 bore and four rounds of the same bore before him and after testing with the help of gauge, the revolver was found in working conditions and the rounds were alive. He prepared his report (Ex. PG) and handed over the revolver and the rounds to HC Tara Chand.
9. PW4 Constable Harjinder Singh deposed regarding the recovery of the revolver and the cartridges from the appellant, since he was accompanying the raiding party. In his cross- examination, he too admitted that the revolver was not sealed by the Investigating Officer in his presence. He also admitted that people were present when the accused was apprehended.
10. PW5 ASI Tara Chand deposed that on 5.3.2000, he was posted as Moharrier Head Constable at Police Station, City, Moga-I, and on that day, Inspector Gurbax Lal deposited with him one revolver .38 bore along with four rounds of the same bore, which were not made into a sealed parcel. On 6.3.2000, he got tested the revolver and the rounds from Kewal Krishan, Armourer, who after test gave his report (Ex. PG). He further deposed that so long as the case property remained with him, neither he nor anybody else was allowed to tamper with the same. He conceded in the cross-examination that the Armourer did not test the same by making a test fire.
11. After completion of the prosecution evidence, incriminating evidence, in terms of Section 313, Cr.P.C., was put Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 5 to the appellant. He denied the material appearing against him and pleaded innocence and further averred that he was already in custody in a case under Section 307, IPC, relating to Police Station, City, Moga.
12. No evidence in defence was led.
13. After hearing learned counsel for the parties, the learned Trial Court held the appellant guilty for the offence punishable under Section 25 of the Arms Act and ordered him to undergo the sentence as described in the initial part of this judgment.
14. Learned counsel for the appellant has assailed the impugned judgment on the following grounds:-
(i) The revolver (Ex. P1) and the live cartridges (Ex. P2 to P5), alleged to have been recovered from the appellant, were not sealed on the spot, therefore, there was no sanctity that the revolver and the cartridges remained un-tampered till the same were produced before the learned Trial Court;
(ii) In spite of availability, no independent witness was joined;
(iii) Since the bullet was not fired from the alleged recovered revolver, therefore, there was no material before the Armourer to say that the rounds were alive and the revolver was in a working condition. Therefore, there was no material before the learned Court below to hold Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 6 that the revolver (Ex. P1) was a fire arm, within the meaning of the Arms Act;
(iv) The appellant and his co-accused were acquitted for the offences punishable under Sections 399 and 402, IPC, by the learned Additional Sessions Judge in a separate trial though tried simultaneously on the basis of the evidence of almost the same witnesses; and
(v) It has emerged on the file that the raid was being supervised by Deputy Superintendent of Police, Paramjit Singh, but the prosecution has withheld him from the witness box without any explanation.
15. In support of his submissions, learned counsel for the appellant has placed reliance on the judgments of this Court in the cases of Jahangir v. State of Haryana, 1996 (2) R.C.R. (Criminal) 433; Kuldip Singh v. State of Haryana, 2000 (4) R.C.R. (Criminal) 103; Jasbir @ Banti @ Jasbir Singh v. State of Haryana, 2011 (1) R.C.R. (Criminal) 626; and a judgment of Madhya Pradesh High Court in the case of Dadu @ Indraka v. State of M.P., 2003 (2) R.C.R. (Criminal) 548.
16. On the other hand, learned counsel for the State submitted that non-sealing of the contraband articles on the spot would not cause any prejudice to the appellant since the same were deposited with the Moharrier HC Tara Chand (PW5) on the date of recovery itself and, in turn, the said witness produced the revolver and the live cartridges before the Armourer, Kewal Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 7 Krishan (PW3), on the very next day. Therefore, there was hardly any time left with the Investigating Officer or the other police officials to tamper with the recovered articles. He also submitted that the official witnesses have fully supported the prosecution case, therefore, non-joining of a witness from the public would also not cause any prejudice to the appellant. He further submitted that the Armourer had not only issued his report (Ex. PG) with regard to the working condition of the firearm and that the cartridges were alive, but also deposed so when he appeared as PW-3. Therefore, his testimony has well proved that the revolver so recovered was in a working condition and that the rounds so recovered were alive. He also argued that the acquittal of the appellant in a case for the offences punishable under Sections 399 and 402, IPC, would not help him, since the benefit of doubt was extended to him by the learned Trial Court in the said case. Lastly, he submitted that the ratio of the judgments cited by the learned counsel for the appellant is not applicable to the facts and circumstances of the case in hand.
17. I have heard learned counsel for the parties and with their able assistance gone through the record.
18. There is substance in the submissions of the learned counsel for the appellant. The revolver (Ex. P1) and the cartridges (Exs. P2 to P5) were concededly not sealed on the spot. There was every opportunity for the Investigating Officer or the members of his investigating team to tamper with the recovered articles and the benefit of the same has to be extended to the appellant. This fact assumes importance when Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 8 the learned counsel for the appellant submitted that in spite of the availability, no independent witness was joined. It has come in evidence of PW4, Constable Harjinder Singh, that so many people were present on the spot. The alleged raid was conducted at around 6:30 p.m. and the place of occurrence was Rajindra Park and the said area is situate in the thickly populated area of Moga City. In such a scenario, it was expected from the Investigating Officer to have joined one or more witnesses from the public to witness the recovery. It has also come in evidence that the raid proceedings were being supervised by Deputy Superintendent of Police, Paramjit Singh, but his absence from the witness box also casts serious doubt on the veracity of the prosecution case. The prosecution has even failed to prove that the revolver so recovered was in working condition and the cartridges so recovered were alive, since no test fire was done by the Armourer, Kewal Krishan (PW-3).
19. In Kuldip Singh's case (supra), in spite of recovery of country made .32 bore pistol along with three cartridges from a place where independent witnesses were available, but not joined, the appellant was held entitled to acquittal.
20. In Jasbir Singh's case (supra), it was held that in the facts and circumstances of the said case, it was not safe to convict the appellant on the basis of the testimony of police officials alone.
21. In Jahangir's case (supra), this Court held that during the proceedings of recovery of a country made pistol with cartridges, no witness from the public was joined and nor the Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order CRA-S-1633-SB-2002 (O&M) 9 recovered articles were sealed in a parcel, therefore, the accused was entitled to benefit of doubt.
22. In the case of Dadu @ Indraka (supra), Madhya Pradesh High Court held that there was no evidence that the pistol was in working condition or that the cartridge was alive, the conviction was set aside and the appellant was acquitted of the offence punishable under Section 25 of the Arms Act.
23. Keeping in view the totality of the facts and circumstances of the case and the ratio of the judgments discussed hereinabove, this Court is of the considered opinion that in the present case the prosecution has failed to bring home the guilt of the appellant for the offence punishable under Section 25 of the Arms Act, therefore, he deserves acquittal. Accordingly, the present appeal is allowed. The impugned judgment is set aside and the appellant is acquitted of the charge levelled against him. The amount of fine, if deposited, be returned to him in accordance with the norms on the subject.
24. The Registry is directed to forthwith send back the lower Court record along with a copy of this judgment.
(NARESH KUMAR SANGHI) JUDGE July 30, 2013 Pkapoor Kapoor Prashant 2013.08.06 10:35 I attest to the accuracy of this order