Dalbir Singh vs State of Sikkim

S.P. Wangdi, Actg. C.J.

This Petition has been preferred against the impugned judgment dated 17.02.2011 of the learned Sessions Judge, Special Division-I, Sikkim at Gangtok in Criminal Appeal No. 15 of 2010 upholding the conviction and sentence passed by the learned Judicial Magistrate, First Class, North & East Sikkim at Mangan against the Petitioner for the offence u/s 381 of the I.P.C., 1860.

The brief facts of the prosecution case is that a written complaint was received from the Commandant, 8th Battalion Indo-Tibetan Border Police (ITBP) established at Pegong, Chungthang, North Sikkim, stating that a 9 mm Pistol Butt No. 209 Body No. 7366768, 9 mm CTN - 35 rounds and 2 Magazines were found missing from the "Koth" (Gun House) of ITBP at its border post at Naku, North Sikkim and that the accused/Petitioner, a constable of ITBP Unit, had been caught with the arms, magazines and ammunition at Jind, Haryana and arrested by the Haryana Police. Based on such complaint, a case u/s 381 of the Indian Penal Code, 1860 was registered against accused/Petitioner and investigation was taken up which, on completion, revealed that the accused/Petitioner, who is a permanent resident of Bahadur Garh, Haryana, while being posted at 8th Battalion ITBP at Naku border post, Muguthang, North Sikkim, during the relevant time assisted one Havildar Naval Singh, who was In-charge of "Koth", in cleaning the arms stored therein. On one of such days, i.e. on 03.12.2005, the accused/Petitioner allegedly stole from the "Koth" one 9 mm pistol, 2 magazines for the pistol and 35 live cartridges, which he concealed in a ruck-sack and managed to send to Muguthang unit on 05.12.2005 where he later went along with other ITBP personnel. On 10.12.2005, he left for his native village at Haryana. On 11.12.2005, the In-charge of the "Koth" discovered the arms and ammunition missing from the "Koth" and accordingly, informed the Assistant Commandant stating that he suspected the accused/Petitioner of having stolen them, which resulted in the said Assistant Commandant lodging an FIR and subsequent arrest of the accused/Petitioner and recovery of the arms and ammunitions from him at Haryana.

After investigation, the I.O., having found prima facie material against the accused/Petitioner u/s 381 of the Indian Penal Code, 1860, submitted charge-sheet against him for trial before the Court of the Judicial Magistrate, North Sikkim at Mangan.

After the trial, the learned trial Court found the Petitioner guilty of the offence and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs. 5,000/-only for the said offence and further in default of payment of fine, to undergo further imprisonment for a period of six months.

Aggrieved by the judgment and sentence, the accused/Petitioner filed an appeal before the Sessions Judge, Special Division-I, Sikkim at Gangtok, who upon hearing came to a concurrent finding and accordingly, upheld the conviction and sentence passed by the learned trial Court.

The accused/Petitioner has approached this Court on revision seeking to assail the findings of the learned Courts below. Before this Court, Mr. A. Moulik, learned Sr. Advocate, raised principally two grounds, which are as follows:

I. (i) that the offence for which the accused/Petitioner had been tried at Jind Court, Haryana, was u/s 3 of the Arms Act, 1959, i.e. possession of firearms and ammunition without licence issued in accordance with the provision of the Act. For institution of prosecution against a person for such offence, it is necessary to obtain previous sanction for prosecution from the District Magistrate u/s 39 of the Arms Act, 1959. In the present case, No. sanction had been obtained and accordingly, the entire proceedings against the accused/Petitioner at the Jind Court, Haryana were rendered a nullity and non-est in the eye of law;

(ii) that the case at Jind Court, Haryana and the one before the Judicial Magistrate, North Sikkim at Mangan have emanated from the same transaction and since the one at Jind, Haryana was a nullity all other cases arising out of the same set of facts and in the course of the same transaction would also be rendered nullity, non-est and non-existent; and

(iii) in any case, since the case at Jind Court, Haryana, was dismissed, the present case at Gangtok having arisen from the same transaction would also face the same consequence deserving it to be quashed outright.

II. That the prosecution had utterly failed to prove that the weapon and ammunition that were exhibited in the present case were the very weapon and ammunition seized from the accused/Petitioner as there is No. proof of seizure of the questioned arms and ammunition.

Elaborating the first point, Mr. Moulik submitted that the entire documents including the charge-sheet are completely silent on the question as to whether the sanction u/s 39 of the Arms Act, 1959 has been obtained or not and, therefore, necessary inference that No. sanction had been obtained, would naturally have to be drawn.

Relying upon the judgment in the case of Smt. Javitri Devi Vs. State, , it was submitted by Mr. Moulik that such inadequacy rendered the prosecution against the accused/Petitioner improper, completely divesting the Court of its jurisdiction to take cognizance of the case against him and that in such cases, where want of sanction takes away the jurisdiction of the Court, the defect is not curable under the Code of Criminal Procedure, and the entire proceedings are vitiated. It was then submitted that the accused/Petitioner had been acquitted in the case under the Arms Act, 1959 at Jind, Haryana, which arose out of the same transaction as the one u/s 381 of the Indian Penal Code, 1860, presently under consideration by this Court and hence, he could not be again tried or punished on the same facts u/s 381 of the Indian Penal Code, 1860 or any other provision of Indian Penal Code, 1860 or any other statute.

In support of his contention, Mr. Moulik sought reliance in the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao and Another, . The relevant portion of which are reproduced below:

The learned Counsel for the Appellant submitted that the Appellant was already convicted u/s 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts u/s 420 or any other provision of Indian Penal Code, 1860 or any other statute. We find force in this submission.

It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) Code of Criminal Procedure. Article 20(2) states:

(2) No. person shall be prosecuted and punished for the same offence more than once.

On the other hand, Section 300(1) Code of Criminal Procedure states:

Person once convicted or acquitted not to be tried for same offence. - (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof

Thus, it can be seen that Section 300(1) Code of Criminal Procedure is wider than Article 20(2) of the Constitution. While Article 20(2) of the Constitution only states that "no person shall be prosecuted and punished for the same offence more than once", Section 399(1) Code of Criminal Procedure states that No. one can be tried and convicted for the same offence or even for a different offence but on the same facts.

On the second question, Mr. Moulik submitted that the evidence clearly indicates that the prosecution had failed to prove that the pistol and ammunition exhibited in the present case were the very pistol and ammunition seized from him at Jind, Haryana. Apart from the fact that the case against the accused/Petitioner in the Jind Court, Haryana had been dismissed resulting his acquittal. It was submitted that Exhibit-5, which was proved by PW-7, Dharam Vir Singh, Assistant Sub Inspector at Jind Police Station, was a certified copy of the original taken from the Court of the learned Chief Judicial Magistrate, Jind City, Haryana before which the case under the Arms Act, 1959 had been pending against the accused/Petitioner. The original, as per Mr. Moulik, ought to have been produced and proved by the seizure witnesses, who had signed on the seizure memo Exhibit-5, but it is quite manifest from the impugned judgment of the learned trial Court at paragraphs 30 and 31 that although the witnesses were available in Jind City, Haryana, they were not produced attracting the principle of adverse inference against the prosecution. It was then submitted that the seizure memo even otherwise could not be accepted as a valid piece of evidence as all the attesting witnesses to the seizure memo were two Head Constables, who were subordinate to Assistant Sub Inspector, PW-7. No. civilian was asked to witness the seizure although the seizure took place in broad day light at about 11 a.m. in the premises of the accused/Petitioner which was in a busy locality. Mr. Moulik submitted that such seizure could not be considered as reliable and for this reason it cannot be said that the weapon and the ammunition exhibited in Court are the very weapon and ammunition alleged to have been seized from the accused/Petitioner beyond all reasonable doubt.

In support of his contention, Mr. Moulik referred to the case of Sans Pal Singh Vs. State of Delhi, , more particularly following portion:

...It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head constable, Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, P.W.6, Sub Inspector, Mahipal Singh has also stated that No. public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been No. public witness available or none was willing to associate. Here, as said before, public witnesses were available but No. explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the Appellant for the offences charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith.

Reference was also made to the case of Som Parkash Vs. State of Punjab, , the relevant portion of which is extracted below:

...We agree with the learned Counsel for the Appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the Appellant being unbelievable, the conviction of the Appellant cannot be sustained. The guilt of the Appellant has not been proved beyond reasonable doubt and as such the benefit must go to him.

The case of Bhagwan Singh Vs. The State of Rajasthan, , was also referred to by the learned senior counsel but need not be dealt with as the very same principle as the one set out in the aforesaid decisions has been stated. For the aforesaid reason, it is submitted that the findings of the learned Courts below deserved to be quashed and set aside and the Petitioner acquitted of the charges.

Mr. Karma Thinlay Namgyal, learned Addl. Public Prosecutor, supporting the judgment of the learned Courts below, submitted that there was No. error either of law or fact in the findings of the Courts below and that the grounds raised on behalf of the accused/Petitioner seeking to assail the impugned judgment were manifestly unsustainable. On the question of want of sanction for prosecution in the case under the Arms Act at Jind Court, Haryana, learned Addl. Public Prosecutor submitted that the case was widely different from the one in Sikkim because the case against the Petitioner before the Chief Judicial Magistrate, Jind, Haryana was u/s 25 of the Arms Act and the one before the learned Judicial Magistrate, North Sikkim u/s 381 of the Indian Penal Code, 1860. Therefore, although the weapon seized from the accused/Petitioner at Jind, Haryana was the very same weapon that was stolen by him in Sikkim, yet the two offences are quite distinct and cannot be stated to be part of the same transaction.

So far as the question of the dismissal of the case in the Court of learned Chief Judicial Magistrate, Jind City, Haryana is concerned, it was submitted that the dismissal of the case was due to the non-examination of the Investigating Officers and the In-charge of the "Koth", Naval Kishore, who is PW-2 in the present case due to which the link evidence was found to be missing and not because the accused/Petitioner was found to be innocent. Mr. Karma Thinlay Namgyal referred to the judgment of the learned Chief Judicial Magistrate, Jind City, Haryana, which is reproduced below:

In the Court of Sundeep Singh, Chief Judicial Magistrate, Jind.

Criminal Case No. 42/2 of 03.02.2006 Date of Institution: 03.02.2006 Date of Decision: 23.11.2009

State v. Dalbir Singh son of Daya Singh, r/o Village Bahadurgarh, P.S.Safidon, District Jind.

... Accused.

FIR No. 448 of 12.12.2005 Under Section: 25 of Arms Act. Police Station: City, Jind

Present:Shri Y.S. Rathi, APP for the State. Accused on bail with Shri R.K. Sheokand, Advocate.

Judgment:

The above named accused has been sent up by S.H.O. Police Station City, Jind to stand his trial for the commission of offence punishable u/s 25 of the Arms Act.

Brief facts of the case are that on 12.12.2005 at 11.30 A.M. a telephonic message was received to the effect that Constable Dalbir Singh, 8 BN. ITBP, Sikkim had deserted with one pistol 9mm alongwith 35 cartridges. She (sic) is resident of House No. 4261, Defence Colony, Jind and he be arrested as he had taken the weapon and ammunition with malafide intention. On receipt of the information, the accused was arrested from House No. 4261, Defence Colony, Jind. On interrogation, he failed to produce any permission or licence of the pistol and cartridges, which were recovered from his bag. Accordingly, he was arrested and present case was registered against him.

Site plan was prepared. Statements of witnesses were recorded. The accused was arrested in this case. Sanction for prosecution was obtained from the District Magistrate, Jind. After completing all other usual acts of investigation and interrogation challan was prepared and submitted in the court for trial.

Copy of challan was supplied to the accused free of costs as provided u/s 207 Code of Criminal Procedure

After perusing the report u/s 173 Code of Criminal Procedure and other documents a prima facie case for the commission of offence punishable u/s 25 of the Arms Act was made out against the accused and charge against the accused was framed accordingly vide order dated 14.08.2008, to which he pleaded not guilty and claimed trial.

In order to prove its case against the above named accused, the prosecution has examined two witnesses in all PW1 ASI Dharambir Singh, Armourer has proved his test report Ex.PW1/A. PW2 Ramdhan, SI (retired) has proved FIR Ex.PW2/A. No. other witness was examined. Thereafter, the prosecution evidence was closed by court order, as the prosecution failed to conclude its entire evidence despite availing a number of opportunities, including last opportunity.

Statement of accused u/s 313 Code of Criminal Procedure was recorded, in which he denied all the allegations levelled against him and pleaded his false implication. However, he has led No. evidence in his defence.

I have heard learned Assistant Public Prosecutor for State as well as learned defence counsel and have gone through the record on case file and I am of the considered opinion that the prosecution has miserably failed to prove its case against the accused.

Although by examining two witnesses, the prosecution has tried to prove its case but failed to prove the same. First of all the prosecution has not been able to examine any independent witness to prove its case regarding recovery of the pistol and 35 live cartridges. It is settled law that No. implicit reliance can be placed on the testimony of official witnesses. My view finds support from the law laid down in Jagtar Singh v. State of Punjab, 1992 (2) CCC 117, wherein it was held that No. implicit reliance on the testimony of official witnesses is to be placed unless corroborated by independent witnesses, therefore, a reasonable shadow is cast over the version of the prosecution.

The prosecution has failed to examine the MHC with whom the case property was deposited by the Investigating Officer. Due to non-examination of the MHC, link evidence is missing in this case which is fatal to the prosecution case.

The Investigating Officer has also not been examined by the prosecution, thus, leaving much to be done. Non-examination of the Investigating Officer though not always fatal as in the present case, undoubtedly seriously prejudiced the right of the accused as he has not been given an opportunity to cross-examine the Investigating Officer in respect of the flaws in the investigation. Had the Investigating Officer stepped into the witness-box the defence would have got precious right to cross-examine him about the site plan, the mode in which the recovery was effected, the reason for non-joining of independent witness in the investigation. But on account of non-examination of the Investigating Officer the precious right of the accused was denied to the defence and benefit of withholding of an important witness has to be therefore, given to the accused.

Further more, the prosecution has not cared to prove the sanction order of the District Magistrate, Jind, which leads much to be done on the part of the prosecution and in absence of sanction order, the prosecution could not have possible lodged.

It is basic law that it is for the prosecution to prove the charge beyond any reasonable doubt. Further the law is "greater the offence, sticker (sic) the proof" if defence creates reasonable doubt in the story of prosecution, the benefit of such doubt has to go to accused and not the prosecution.

In view of the foregoing discussion, the prosecution has miserably failed to prove its case against the above named accused beyond the shadow of reasonable doubt. Hence, the above named accused is hereby acquitted of the charge framed against him by giving him benefit of doubt. Case property is ordered to be returned to Inspector G.D.Anil Kumar, ITBP, Sikkim, who is resent today in the court as per rules. File be consigned to the record-room after due compliance.

Pronounced. November 23, 2009

Sd/ (Sundeep Singh)

Chief Judicial Magistrate, Jind.

Certified that all the pages of this judgment have been checked and signed by me.

Sd/Chief Judicial Magistrate,

Jind. 23.11.2009

Replying to the contention on behalf of the accused/Petitioner on the alleged deficiency in the evidence with regard to the identification of the questioned arm and ammunitions, Mr. Namgyal submitted that there could be No. doubt as to the identity of the weapon as the seizure memo had been proved by PW-2, PW-4, PW-7 and PW-8, namely, Naval Singh, a Havildar, who was the "Koth" In-charge at ITBP camp, Pegong, Chungthang; Chandra Singh, a Havildar and ITBP personnel at Naku, Pegong, Chungthang, Dharam Vir Singh, Assistant Sub Inspector, Jind, Haryana, who, in fact, seized the arms and the ammunition of the questioned seizure memo, Exhibit-5 and SI Rabden Bhutia, the I.O. in the present case. In so far as the point as to non production of the original seizure memo from Jind, Haryana is concerned, it is submitted that the certified copy of the seizure memo from Jind Court, Haryana had been obtained on the direction issued by the learned trial Court upon the prosecution and since the certified copy had been issued by the Court of the learned Chief Judicial Magistrate at Jind, Haryana in respect of a document which was pertaining to a pending case before it, there could be No. doubt as to the authenticity of the seizure through the seizure memo. Mr. Namgyal referred to the judgment of M. Chandra Vs. M. Thangamuthu and Another, , the relevant portion of which reads as under:

...It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through No. fault of that party....

In view of the above position, it was submitted that there could be No. doubt that the certified copy, a secondary evidence, has been authenticated by foundational evidence that the alleged copy, in fact, is a true copy of the original. As per Mr. Namgyal, the certified copy has been issued by the Court in response to a direction of another Court. The document being a part of the judicial record, the inference that the certified copy is indeed a copy of the original, can be reasonably drawn without any doubt.

In reply, Mr. Moulik pointed out certain anomalies with regard to particulars of the pistol alleged to have been seized from the accused/Petitioner and submitted that in the written complaint originally lodged by the ITBP, description of the weapon, i.e. the pistol, has been given as 9 mm Pistol Butt No. 209 Body No. 7366768 - 01. In the FIR drawn by Jind PS, the description of the weapon is given as Pistol Mark CALGMN/NO.T. 366768 and in the charge framed by the learned Judicial Magistrate, North Sikkim at Mangan, it has been described as 9BB Pistol (Butt No. 209, Body No. 7366768). In other words, it was the submission of Mr. Moulik that there was gross discrepancies in the description of the weapon and under such circumstances, it cannot be said most categorically that the weapon in question is the very same weapon that is alleged to have been seized from the accused/Petitioner.

To this, Mr. Karma Thinlay Namgyal submitted that the discrepancies indicated are not of such a nature as to vitiate to the very foundation of the prosecution case as it can be seen clearly that the so called discrepancies are only as a result of inadvertence and that there is No. inconsistency otherwise in its description.

I have carefully perused the documents, the rival contentions placed by the learned Counsel and also the documents and evidence available on record. As regards to the first contention urged on behalf of the accused/Petitioner that the case at Jind, Haryana having been rendered a nullity for want of sanction u/s 39 of the Arms Act, 1959 the other events connected with the offence are also rendered a nullity, in my view, does not hold water and is quite unsustainable for reasons that follow hereafter.

On careful perusal of the judgment of the learned Chief Judicial Magistrate, Jind dated 23.11.2009 in Criminal Case No. 42/2 of 03.02.2006 registered in that Court, I find that the charge against the accused/Petitioner is u/s 25 of the Arms Act and not u/s 3 as was being urged by Mr. Moulik. This fact clearly displaces the defence raised on behalf of the accused/Petitioner on the question of want of sanction for prosecution u/s 39 of the Arms Act, 1959. Sanction for prosecution u/s 39 of the Arms Act would be necessary only for instituting the prosecution against the person u/s 3 of the Arms Act. For convenience I may reproduce Section 39 of the Arms Act, which is as under:

Previous sanction of the District Magistrate necessary in certain case. -No prosecution shall be instituted against any person in respect of any offence u/s 3 without the previous sanction of the District Magistrate.

(emphasis supplied)

For the aforesaid reason, the foundation of defence, therefore, crumbles and stands rejected accordingly.

The next contention raised on behalf of the accused/Petitioner as we have seen is that the offence u/s 381 of the Indian Penal Code, 1860 presently under consideration before this Court and the one under the Arms Act at Jind, Haryana, in which he was acquitted, having arisen from the same transaction, the accused/Petitioner was entitled to acquittal in this case also by application of Article 20(2) of the Constitution of India and Section 399(1) of the Code of Criminal Procedure as the accused/Petitioner cannot be tried and convicted for the same offence or even for a different offence but on the same facts. In my view, this principle cannot be applied in the facts and circumstances of the present case. This is because while the offence of theft u/s 381 of the Indian Penal Code, 1860 resulted on the weapon and ammunitions being stolen by the accused/Petitioner from "Koth" at Naku, Pegong, North Sikkim, the offence u/s 25 of the Arms Act was as a consequence of the seizure of the weapon and ammunitions from the accused/Petitioner at Jind, Haryana.

Therefore, the two are distinct offences resulting from distinct transactions and different ingredients constitute the two offences under different enactments and, therefore, separate trials for distinct offences resulting in different punishments are not barred under the law.

In the case of State of Bihar Vs. Murad Ali Khan and Others, , where while dealing with the offences under Sections 9(1), 50(1) and 55 of the Wild Life (Protection) Act, 1972 and Sections 447, 429 and 379 of the Indian Penal Code, 1860 were involved, it has been held as under:

The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the Indian Penal Code, 1860 and at the same time constitute an offence under any other law. The observations of this Court made in the context of Section 2(3) of Contempt of Courts Act might usefully be recalled. In Bathina Ramakrishna Reddy v. State of Madras this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of Section 2(3) of the Contempts of Courts Act, 1953, which provided that:

No High Court shall take congnizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

The contention before this Court was that the allegations made in the article constituted an offence u/s 499 of Indian Penal Code, 1860 and, that therefore, cognizance of such offence under the Contempts of Courts Act was barred. Repelling the contention, Mukherjea, J. said: (SCR p. 429)

In our opinion, the Sub-section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the Sub-section which uses the words "where such contempt is an offence" and does not say "where the act alleged to constitute such contempt is an offence.

It is, however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly No. prior conviction and sentence for an offence u/s 429, Indian Penal Code, 1860 even assuming that the two offences are substantially "the same offence". Suffice it to notice, prima facie, that the ingredients of an offence u/s 9(1) read with Section 50(1) of the Act require for its establishment certain ingredients which are not part of the offence u/s 429 and vice versa.

It may be noted that the Hon''ble Supreme Court while arriving at the above decision, examined the import of Sections 9(1), 50(1) of the Wile Life (Protection) Act, 1972 and 429 of the Indian Penal Code, 1860 on the anvil of the ratio laid down in various decisions of that Court set out in paragraphs 21 to 30 of the Judgment.

In the case of Kapil Singh and Others Vs. State of Bihar, , a Division Bench of the Patna High Court, referring to the case of Murad Ali Khan (supra), has held as under:

The offence under Arms Act is different from that under the different sections of the Indian Penal Code, though the same set of facts may be common for the different provisions of law, but the ingredients for one offence are or may be different from the ingredients for establishing the offence under the different provision of law. But the acquittal under one provisions of law will not form the proceeding under the same series of prosecution under the different provision of law.

In view of the above position of law, the second contention raised on behalf of the Petitioner also cannot be sustained and, therefore, stands rejected.

On the question of failure on the part of the prosecution to prove the identity of the weapon and the ammunition as being the very ones seized vide Exhibit-5 by PW-7 at Jind, Haryana is concerned, I find that there does not appear to be any doubt as to its proof from the evidence produced by the prosecution.

PW-2, the Havildar at Naku, Pegong, who was In-charge of "Koth", who the accused/Petitioner assisted in cleaning the guns including the weapon in question, has identified the same as the very one which was found missing. PW-4, also a Havildar, to whom the pistol and the ammunition had been issued and later had deposited them with PW-2 before being forwarded to Pegong Unit Hospital for medical treatment, also identified the weapon and ammunition as the very ones that had been deposited by him. PW-7, Dharam Vir Singh, was the Assistant Sub Inspector at Jind, Haryana, who, in fact, seized the weapon and ammunition vide seizure memo Exhibit-5. He had most categorically identified the weapon as the very ones by Exhibit-5. There is consistency in evidence of all the three witnesses, which have withstood the test of cross-examination and I do not find any reasons as to why they should not be believed.

Mr. Moulik''s submission that other witnesses, who had signed on the seizure memo, were not examined and that even if they had been examined, they could not be treated as reliable witnesses being Head Constables directly supporting to the Assistant Sub Inspector, PW-7 may have some substances but, in my view, in the facts of the present case, the authenticity of the seizure memo and the identification of the weapon and the ammunitions appear to be well established. The fact that the two attesting witnesses are police head constables directly under the Assistant Sub Inspector, who had investigated the case and therefore, as per Mr. Moulik, interested or partisan witnesses, by itself cannot be a ground for discarding the evidence. The decisions of Sans Pal Singh v. State of Delhi, Som Parkash v. State of Punjab and Bhagwan Singh v. The State of Rajasthan cited by Mr. Moulik, in my view, do not lay down any ratio decidendi but rather are obiter to the facts of those cases.

The law, as regards the evidence of interested or partisan witnesses is well settled. All that it requires is that the Courts ought to be more circumspect and subject the evidence of such witnesses to a closer scrutiny. Having applied this principle to the facts of the present case, I do not find any reason to doubt or disbelieve the witnesses. The document Exhibit-5 is a certified copy of the original seizure memo lying in the Court of the learned Chief Judicial Magistrate at Jind, Haryana and has been furnished as a consequence of a warrant of production issued by the Court of learned Judicial Magistrate, North Sikkim. This, in my view, is sufficient to discard any doubt as regards the existence of the seizure memo and its authenticity.

The discrepancies in respect of the number of the pistol indicated by Mr. Moulik do not appear to be of such as to vitiate the substance of the prosecution case which, in my view, have been sufficiently established. In any case, I find that the Investigating Officer, who deposed as PW-8, has clarified that it was due to inadvertence that the pistol number had been mentioned as ''7366768'' instead of ''T.366768'' and that the Deputy Commandant, ITBP had issued certificate Exbt.7 to that effect which we find at page 37 of the paper book. These facts have withstood the test of cross-examination and have remained undemolished.

Under such circumstances, I do not find any reason for this Court to interfere with the concurrent findings of the learned Courts below.

In the result, this Criminal Revision Petition stands dismissed. No. order as to costs.

However, as regards the sentence I would prefer to exercise a more lenient approach considering the fact that there was No. adverse report as regards the character and antecedents of the accused/Petitioner and also do not find any blemish in his conduct while in service. He appears to have been quite exemplary even during the trial of the case. This Court has reason to believe that the offence was committed by the accused/Petitioner as a consequence of a sole indiscretion on his part and was of the age of 41 years at the time of commission of the offence and, therefore, naturally would now be of 47 years. Under such circumstances, interest of justice would be served if the sentence is reduced to simple imprisonment for 3 (three) months with the sentence of fine of Rs. 5,000/-remaining unaltered. Failure to pay the fine of Rs. 5,000/-shall entail further imprisonment of 1 (one) month.

The accused/Petitioner is directed to appear forthwith before the Sessions Judge, Special Division-I, Sikkim at Gangtok to face the process for execution of the sentence.

Let a copy of this judgment and order along with the original records be transmitted to the learned Court of Sessions Judge, Special Division-I, Sikkim at Gangtok, forthwith for its due compliance in accordance with law.