Baghel Singh vs State of Haryana

Gurdev Singh, J.—The Petitioner-accused, Baghel Singh, was convicted by Judicial Magistrate Ist Class, Sirsa, for the offence u/s 25 of the Arms Act, 1959 (hereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of `1000/-and in default of payment of fine to undergo further imprisonment for a period of two months, vide judgment dated 25.10.2001. He preferred appeal against that conviction and sentence but the same was dismissed by Additional Sessions Judge, Sirsa, vide judgment dated 19.9.2005. Now, the present revision petition has been preferred by him against that conviction and sentence.

He was intercepted on 11.3.1994 by the police party headed by Vijay Kumar SI, SHO, which after joining Surjit Singh, PW-1, as an independent witness, was proceeding towards Berwala Kalan in connection with patrolling and detection of crime. Personal search was conducted by SI and one country made pistol 32 bore was recovered from the right dub of his paijama When that pistol was unloaded, one live cartridge was recovered. The SI prepared the rough sketch of the pistol and took that into possession, along with the live cartridge, vide Memo Ex.PA. He sent his ruqa Ex.PD to the police station on the basis of which formal FIR Ex. PD/1 was recorded against the accused. He prepared the rough site plan Ex. PE of the place of recovery and on going back to the police station deposited the case property with Balwan Singh MHC, PW-5. On 20.3.1994, the pistol and the cartridge were sent to Hind Singh, PW-3 through Ram Pal ASI, PW-7, who after technically testing the same gave his report Ex. PC, that the pistol was fit for firing and the cartridge was a live cartridge. The relevant papers and the case property were sent to the District Magistrate, Sirsa, who accorded the sanction for the prosecution of the accused u/s 39 of the Act, vide order Ex. PW 6/A. After completion of the investigation, the challan was put in before the JMIC, Sirsa. The accused was charged for the offence u/s 25 of the Act. To prove his guilt prosecution examined Surjit Singh, PW-1, Ram Avtar SI, PW-2, Hind Singh, PW-3. Vijay Kumar, SHO. PW-4, Balwan Singh HC, PW-5, Ved Parkash, PW-6 and Ram Pal, PW-7. After the evidence was closed by the prosecution, the accused was examined by the trial court and his statement was recorded u/s 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence.

I have heard learned Counsel for both the sides.

It has been argued by the counsel for the Petitioner that the prosecution case in the court was not supported by the independent witness and in the absence of corroboration by the independent witness, the conviction of the accused could not have recorded on the basis of the statements of the official witnesses, who have made contradictory statements in the court. The pistol and the cartridge, alleged to have been recovered from the possession of the accused, were never sealed at the spot by the Investigating Officer. There was opportunity with the Investigating Officer to join the other independent witnesses but they were not joined. The pistol was never tested by any expert and the test firing was not done. In the absence of any report of the expert and the test firing, it cannot be said that the article, so alleged to have been recovered from the possession of the accused, was an arm. According to him, in view of these submissions, the conviction and sentence of the accused are liable to be set aside. In support of his arguments, he has placed reliance on Gurdial Singh v. State of Punjab 2004(2) RCR(Criminal) 745 , Sahib Singh Vs. State of Punjab, and Chitwant Singh v. State of Punjab AIR 1999 Supreme Court 1606.

On the other hand, it has been submitted by the State counsel that the Investigating Officer did join an independent witness before the search of the accused was taken, who opted not to support the prosecution case in the court. Therefore, it cannot be said that it is a case where no independent witness was joined. Both the recovery witnesses examined by the prosecution have made trustworthy and reliable statements and on the basis thereof the correct finding was recorded by the trial court that a pistol and one live cartridge were recovered from the possession of the accused. There is no requirement of law that such a pistol and live cartridge must have been sealed at the spot. There is cogent evidence produced by the prosecution that this arm and ammunition were deposited with the MHC on the day of recovery itself by the Investigating Officer and were sent to the Armourer without tampering with the contents thereof and the pistol was found to be fit for firing and the cartridge was found to be live. There is no ground for setting aside the conviction and sentence of the accused.

The facts of the judgments so cited by the counsel for the Petitioner were different. In those cases no independent witness was joined by the Investigating Officer and it was in those circumstances that was taken as one of the circumstance for not placing reliance on the prosecution evidence. In the present case, Surjit Singh was joined as independent witness though he did not support the prosecution case in the Court. Therefore, it cannot be said that it is a case where no independent witness was associated. It is a matter of common knowledge that the witnesses from the public, avoid to join the police investigations and even if they join such investigations they seldom come forward to support the prosecution case in the courts. On account of non-supporting of the prosecution case by the independent witness, the only duty caste on the court was to scrutinize the statements of the official witnesses with more care an caution.

According to counsel for the accused, the statements of both the police officials, who have been examined to prove the recovery, are full of contradictions. After having gone through their statements it has been found by this Court that there are no such glaring contradictions. There are only normal and minor discrepancies which may be the result of fading of the memory of the witnesses by the passage of time. The type of discrepancies, which have occurred in the statements, suggests that they are truthful witnesses and are not tutored one. Only tutored witnesses can make perfect statements in the court. No illegality was committed by the trial court while recording the conviction of the accused on the basis of the statements of the police officials, who were found to be trustworthy and reliable.

The very purpose of sealing the case property on the spot is to rule out the possibility of tampering with the contents thereof. In Gurdial Singh''s case (supra), reliance was not placed on the test report of the Armourer as the case property was not sealed at the spot and the weapon was tested by the expert after 8 months. In Sahib Singh''s case (supra), no evidence was produced so as to indicate with whom the revolver was after the seizure thereof till the same was sent to Arms expert for testing. In Chitwant Singh''s case(supra), the rifle and the cartridge, alleged to have been recovered from the possession of the accused, were not sealed and the description of the rifle produced in the court at the time of trial was different from the rifle, which was mentioned in the documents, and no opinion of the expert was obtained regarding the working condition of that rifle.

The facts of the present case are altogether different. After the recovery, the pistol and the cartridge were deposited on the same day with Balwan Singh, MHC, PW-5 and according to him, on 20.3.1994, i.e. just after nine days, he sent the same for obtaining the report of the expert through Ram Pal, ASI. His statement was further corroborated by that Ram Pal, who was examined as PW-7. The prosecution examined Hind Singh, PW-3, who tested that pistol and cartridge and proved on record his report Ex. PC. According to him also those were brought to him by Ram Pal, ASI. Thus, even if this pistol and cartridge were not sealed at the spot still those were sent to the Armourer in the same condition. He stated in so many words that he technically tested the pistol after comparing the same with the rough sketch, Ex. PB, which further shows that it was the same pistol which was so recovered from the accused. This witness stated that he was working as Armourer and his statement to that effect was never challenged during his cross examination. Being an Armourer he was an expert to test the fire arms etc. He specifically mentioned in his report Ex. PC that this pistol was fit for firing and cartridge was a live cartridge. The prosecution was able to prove beyond any reasonable doubt that the country made pistol and live cartridge were recovered from the possession of the accused. Correct finding to that effect was recorded by the trial court which was upheld by the appellate court.

It has been submitted by the counsel for the accused that the accused has already undergone sentence of imprisonment for a period of three months and nine days and he has been standing his trial for along period and that he never committed any such offence before the registration of this case or after the registration thereof. He prayed that sentence of imprisonment, so imposed upon him, be reduced to already undergone.

It is not the case of the State that the accused is a previous convict. He has been standing his trial since the year 1994. It is also not the case of the State that the accused was involved in any other case after his conviction in this case.

Keeping in view all these circumstances, the sentence of imprisonment so imposed upon the accused, is reduced to the period already undergone by him.

Revision petition is disposed of accordingly.

Records of the trial court be returned forthwith.