Ram Lal vs State of Rajasthan

Guman Mal Lodha, J.—This criminal revision petition is against the judgment upholding the conviction and sentence of the petitioner u/s 25(1)(a) of the Indian Arms Act, 1959 to one year RI with a fine of Rs. 1,000/-, in default, six month RI as passed by the trial court.

The petitioner was prosecuted u/s 25(1 )(a) of the Indian Arras Act, 1959. This case is an off shoot of sessions case No. 28/75 in which the petitioner stood convicted u/s 452 IPC. and sentenced to 2 year''s R.I. with the fine of Rs. 1,000/-. Against the aforesaid conviction, SB. Criminal Appeal No. 948/76 has been filed.

The prosecution case is that the accused petitioner was arrested on 26-3-1975 in FIR No. 11/75 under Sections 452 & 307, IPC. It is alleged that at 1.30 at night on 27-3-1975, the petitioner gave an information to the Investigating Officer u/s 27 of the Indian Evidence Act and it is alleged (hat he got a country made pistol recovered in the presence of motbir Ram Karan (PW 1), Beni Prasad (PW 2), Balbir Singh (PW 3). The alleged recovery is from a ''Bara''.

For the main case, the petitioner was prosecuted under Sections 452 & 307, IPC, where in however, the trial court found that the offence u/s 307, IPC is not made out. The trial court in the main case observed that from the statement of Ram Singh, it cannot be held that accused Ram Lal had the pistol and he can also not be held liable for the fire.

I have just now decided S.B. Cr. Appeal No. 848/76 and observed in that case that once it was found that the offence of Section 307, IPC was not made out then importance of subsidiary offence of Section 452. IPC is also undermined and minimised. In the present case, a separate case was registered against the petitioner for the offence u/s 25(1)(a) of the Indian Arms Act on the basis of recovery of the country made pistol.

Shri N.L. Tibrewal, the learned Counsel for the petitioner submitted that out of five prosecution witnesses including Ram Karan (PW 1), Beni Prasad (PW 2), Balbir Singh (PW 3) all of them have not supported the prosecution case of recovery. Only Prabhunarain (PW 4), the Investigating Officer has supported the prosecution case.

The trial court placed reliance upon the evidence of Prabhunarain (PW 4) and convicted the accused by raising presumption u/s 35 of the Indian Arms Act. Section 35 reads as under:

Criminal responsibility of persons in occupation of premises in certain cases-Where any arms or ammunition in respect of which any offence under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises vehicle brother place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone;

Shri Tibrewal invited my attention to the evidence of Prabhunarain (PW 4), the investigating officer, who in his cross-examination has admitted as under

okds ls igys esjk bl ckM+s ij tkus dk dke ugh iM+k A eq>s O;fDrxr dksbZ tkudkjh ugh gS fd

ckM+k fdldk gS A

xkWo ds iap o ljiap dks eS O;fDrxr ugh tkurk A

It is also important that in the cross-examination, he also admitted that when the accused gave information he did not disclose the boundaries of the Bara nor he made inquiry about it, and he did not inquire as to in which direction the ''Bara'' is located. He is not certain as to whether the ''Bara'' is having some fencing and he did not remember whether even in the Bara anything was lying in the form of bed (Charpai) or clothes. He did not remember as to whether father and mother of the accused were alive or not and he did not know as to whether he went to the village by jeep or not. He further stated that he could not say as to whether he went by bullock cart and where these three persons Beni Prasad and Balbir Singh and Ramkaran met him. He did not know the Panch and Sarpanch of the village.

It would be obvious from the above that the Investigating Officer has faultered and showed his ignorance of material points of the recovery. It is true that the conviction can be based only on the testimony of the investigating officer and there is no presumption either in law or fact that the police officer should not be believed or their evidence should be taken with a pinch of doubt. In my opinion Investigating Officer is as good as any witness produced in the case. Many a times, his task is very difficult and his testimony cannot be rejected solely on that ground.

However, the present case is one of those where the Investigating Officer has almost shown ignorance rather utter ignorance and it may be true as culpable ignorance cum negligence in the matter of the knowledge about the place from which the recovery was made, he has not even been able to describe the place nor he tried to get its description in the information in which he wanted to place reliance.

It is true that the information given by the accused u/s 27 of the Evidence Act is an important link and piece of evidence if the recovery is made in pursuance of that. Even for that the Investigating Officer''s testimony should be straight forward and inspire confidence. It should not be forgotten that when the information is only proved by the Investigating Officer and it is based on information to the Investigating Officer in the closed barrack of the police station. If the Investigating Officer''s straight forwardness trust-worthiness, credibility, integrity is shaken in the cross-examination then that information and evidence become tainted and cannot be relied upon to convict the accused.

Mere mechanical writing of ownership of the place of recovery of the accused in the recovery memo cannot be treated as the last word because if on cross examination, the sole witness who is the Investigating Officer is not able to give good or sufficient or cogent reasons for describing it as owned by the accused, the recovery memo''s description of the ownership looses its sancity and weight. It would be very unsafe to invoke Section 35 of the Indian Arms Act in such cases.

Section 35 of the Act in terms requires proof that the recovery has been made from premises or place in the joint occupation or under the joint control of several persons. The Investigating Officer has shown utter ignorance about the parents of the accused and it is not his case that there was joint ownership of this ''Bara''.

15 In view of the above, I am of the opinion that the invoking of Section 35 of Arms Act in the present case was wholly misconceived and based on the fallacious logic and wrong interpretation of the provisions of Section 35 of the Indian Arms Act.

I am firmly of the opinion after giving a thoughtful consideration to the rival contentions of the learned Counsel for the accused and the learned Public Prosecutor and perusal of the statement of the Investigating Officer and the other relevant record that the present case is a case where the Investigating Officer''s evidence is wholly unreliable because he has avoided the answers on all material aspects of the recovery. The Investigating Officer in order to be believed as a sole witness should be straight forward in cross-examination and inspire confidence. The description of the place, ownership, fetching of the recovery motbirs, their whereabouts and manner and method of approaching field, all are material aspects of the recovery and so also the information details. All this links are evasive and its evasion in my considered opinion is deliberate and not on account of bonafide lapse of memories.

It is of utmost importance that an Investigating Officer should act with due care and caution and when they come in evidence in court he should try to give positive answer rather than to avoid or evade. The evasion or avoidance only proves that the Investigating Officer is not credible and trustworthy and recovery made by him or the investigation made by him cannot be fair and relied upon for putting a citizen in the dock and behind bars. It is high time that the Investigating Officer should realise their responsibilities because in each case where their evidence is believed, can result in conviction and if there are such serious lacunas as are in the present case, there is no option for the court but to reject such testimony.

In the result, this revision petition succeeds and is hereby accepted, and the petitioner is acquitted of the offence u/s 25(1)(a) of the Indian Arms Act, 1959, and the impugned judgments of both the lower courts are set aside. The petitioner is on bail and need not surrender.

Since the petitioner-accused has not claimed the pistol to be of his own pistol alleged to have been recovered in this case, is forfeited and be sent to the District Magistrate concerned for disposal according to law.