Jai Singh vs State

N.N. Sharma, J.—This appeal is directed against order dated 26-8-77 by Sri Suresh Chandra, learned Session Judge, Aligarh, in S. T. 136 of 77 by which Appellant was convicted u/s 25 Armt Act and was sentenced to one year''s R.I.

It appears that Appellant was charged for the murder of his wife Smt. Munni Devi on 26-7-76 at about 9 P. M. also; the second charge related to the recovery of country made pistol from his possession on 28-7-76 from the haycock of Badam Singh at about 2.30 P. M. in the area of village Lukhtia hamlet of Satloni P.S. Iglas district Aligarh. The charge u/s 302 Indian Penal Code , failed but conviction was recorded by learned trial Judge basing himself on the solitary testimony of investigator Sri Vishwanath Singh PW 8.

During investigation in presence of witnesses Ram Ji Lal PW 5 and Raghunath Appellant is alleged to have discovered country made pistol from the pile of straw of Badam Singh on 28-7-76 at 2.30 P.M. Investigator prepared recovery memo Exh. Ka 2 about country made pistol Exh. 1 and live cartridge Exh. 2 produced by Appellant. These articles were sealed up. Both the public witnesses viz. Raghunath Singh and Ram Ji Lal refused to support the prosecution story and they denied the said recovery of Exhs. 1 and 2 in their presence from the pile of straw of Badam Singh at the instance of Appellant. In his own statement in reply to question No. 7 Appellant denied it and alleged that he was already in custody of police from 27-7-76; all the allegations of recovery of pistol and live cartridge are false. No evidence was adduced in defence. Learned trial Judge believed the prosecution story and recorded the conviction and sentence aforesaid.

I have heard learned Counsel for parties and perused the record of the case.

The appeal is allowed on account of following reasons:

When both the public witnesses refused to support the prosecution version about recovery of pistol and cartridge from the possession of Appellant no conviction was sustainable on the solitary testimony of investigator as was held in Dasrath v. State 1971 ACR 334.

Testimony of investigator was to be taken with a grain of salt. He was interested in the fruition of his efforts. Under these circumstances when he himself was a material about this recovery he should not have conducted investigation himself. In order to inspire confidence the investigation must have been entrusted to some other officer. That has not been done in this case.

Possession implies exclusive control. It was not mentioned in recovery memo that Appellant in his statement alleged to have placed Exhs. 1 and 2 in the haycock of Badam Singh. It is possible that he might have gained knowledge of these weapons through any other source as the place was accessable to all and sundry. Recovery of pistol and cartridge from the haycock of Badam Singh even if accepted in toto cannot (sic) fix the liability on Appellant who cannot be considered as in possession of this haycock which belonged to Badam Singh and the arms were not secreted there by Appellants.

No other point was argued before me.

In the result the appeal is allowed. The conviction and sentence recorded by learned trial Judge are set aside and the Appellant is acquitted of the charge u/s 25 Arms Act. He is on bail. He need not surrender. His bail bonds are discharged.