Ramgopal vs State Of Mp

This Criminal Revision under Section 397/401 of CrPC has been filed against the judgment dated 31st January, 2011 passed by Additional Judge to the

Court of Fourth Additional Sessions Judge (Fast Track), Guna in Criminal Appeal No.155/2010,thereby confirming the judgment dated 06/04/2010,

passed by JMFC, Guna in Criminal Case No.185/2009, by which the applicant has been convicted under Section 25(1-B)(a) of Arms Act and has

been sentenced to undergo the rigorous imprisonment of one year and fine of Rs.200/- with default stipulation.

(2) The necessary facts for the disposal of the present revision in short are that on 14/12/2008, ASI Ashok Singh Tomar (PW5) was posted as SHO

Police Station Dharnawada. He received an information from an informer that the applicant on whom a reward of Rs.5,000/was declared, is hiding

near a Nala passing through Village Bilakhedi and is having a 12 bore country-made pistol. The SDO(P), Raghogarh, ASI Laurence Khes (PW6),

ASI Naval Singh Chaudhary, Constable Ashok Raghuvanshi (PW2), Constable Durgaprasad and other members of the police party went to the village

and searched for the applicant and found that the applicant was there along with a double barrel hatched gun. After noticing the police, the applicant

tried to run away, however, he was apprehended with the help of police force. The applicant was found in possession of one double barrel hatched

gun.

On personal search, one loaded 12 bore country-made pistol was also found in his possession. One live cartridge, eight hatched explosives and bullets

were found from his possession. ASI Ashok Singh Tomar (PW5) asked for licence to possess the same but the applicant could not produce the

licence. Accordingly, the firearms were sized vide seizure memo Ex.P1. The applicant was arrested by arrest memo Ex.P2. On the spot itself, Dehati

Nalishi Ex.P7 was recorded by ASI Ashok Singh Tomar (PW5) and firearms and cartridges were sent for ballistic report and the offence bearing

Crime No.283/2008 was registered.

(3) The police after concluding the investigation, filed the charge sheet against the applicant for offence under Section 25/27 of Arms Act.

(4) The trial Court by order dated 02/05/2009 framed the charge under Section 25(1-B)(a) of Arms Act.

(5) The applicant abjured his guilt and pleaded not guilty.

(6) The prosecution, in order to prove its case, examined Sarjan Singh (PW1), Ashok Singh Raghuvanshi (PW2), Anil Sharma (PW3), Mukesh Khulbe

(PW4), Ashok Singh Tomar (PW5) and Laurence Khes (PW6). The applicant did not examine anybody in his defence.

(7) The trial Court (JMFC,Guna) by judgment dated 06/04/2010, passed in Criminal Case No.185/2009 convicted the applicant for offence under

Section 25(1-B)(a) of Arms Act and sentenced him to undergo the rigorous imprisonment of one year and fine of Rs.200/with default stipulation.

(8) Being aggrieved by the judgment and sentence passed by thetrial Court, the applicant filed an appeal which too has been dismissed by judgment

dated 31st January, 2011 passed by Additional Judge to the Court of Fourth Additional Sessions Judge (Fast Track), Guna in Criminal Appeal

No.155/2010.

(9) Challenging the judgments and sentences passed by the Courtsbelow, it is submitted by the counsel for the applicant that the prosecution has failed

to prove the guilt of the applicant beyond reasonable doubt. The independent witnesses have not supported the prosecution case. The entire case

hinges on the evidence of police personnel which are not reliable. It is further submitted that the firearms as well as cartridges were not sealed on the

spot and the entire prosecution story is suspicious. The firearms and cartridges were sent for examination belatedly and the firearms were not tested

by Anil Sharma (PW3) by firing the same. At the time when the firearms were produced before the Court, it was found that the trigger of hatched

gun was broken, whereas at the time of seizure it is nowhere mentioned that the trigger was broken. It is further submitted that since the investigation

was done by the first informant himself, therefore, the prosecution story is liable to be rejected.

(10) Per contra, it is submitted by State Counsel that the prosecution has proved beyond reasonable doubt that the applicant was a wanted criminal, on

whom a reward of Rs.5,000/- was already declared and an information was received that the applicant armed with firearms, is hiding near a Nala of

Village Bilakhedi. The applicant was arrested on the spot and he was found in possession of firearms and cartridges. Both the Courts below after

appreciating the evidence in detail, have given concurrent findings of fact that the firearms and cartridges were seized from the possession of the

applicant and the applicant was not having any licence to possess the same. It is further submitted that since the applicant is a criminal and, therefore,

the jail sentence of rigorous imprisonment of one year awarded by the trial Court, does not require any interference.

(11) Heard the counsel for the parties.

(12) It is contended by the counsel for the applicant that when thehatched gun was produced in the Court, it was found that the trigger of the said gun

was broken, whereas as per the seizure memo the entire gun was intact, therefore, it appears that the seizure of hatched gun is doubtful.

(13) The submission made by the counsel for the applicant cannot beaccepted at this stage, because the trigger can get damaged because of negligent

handling of the gun after the same was checked by the Armourer. Anil Sharma (PW3) is the Armourer, who has checked the arms. In cross-

examination, he has specifically stated that at the time of inspection the trigger of gun was not broken. However, it is admitted that today when the

gun was produced before the Court, the trigger of hatched gun is broken. He has further stated that the firearms were found in working condition

although the gunshots were not fired but all the parts of the firearms were in working condition. It is true that the independent witness Sarjan Singh

(PW1) has not supported the prosecution case. However, he admitted that seizure memo Ex.P1 and arrest memo ExP2 contain his signatures. Ashok

Singh Raghuvanshi (PW2), Ashok Singh Tomar (PW5) and Laurence Khes (PW6) are the members of the Police Party, who had apprehended the

accused. These three witnesses have supported the prosecution case. Although these witnesses have been cross-examined in detail, but nothing could

be elicited from their evidence which may make their evidence unreliable. Mukesh Khulbe (PW4), the Arms Clerk, who has proved the sanction

granted from the District Magistrate for prosecution of the applicant under Section 25/27 of Arms Act. The sanction for prosecution is Ex.P6.

Although this witness has also been cross-examined by counsel for the applicant, but nothing could be elicited from his evidence, which may make the

sanction unreliable.

(14) It is further submitted by the Counsel for the applicant, that AshokSingh Tomar (P.W.5) had received the information and the search was carried

out by him and Laurence Khes (P.W.6) was also the member of search party and therefore, investigation by Laurence Khes (P.W.6) is vitiated, as

the Arresting Officer and the Investigating Officer was the same, therefore, the prosecution of the applicant is bad. In support of his contention that

the Arresting Officer and the Investigating Officer should not be the same person, the counsel for the applicant has relied upon the judgment of this

Court in the case of Raju Dubey vs. State of MP, reported in 1998 (1) JLJ 236 which read as under:-

xxxxxxxxxx In a recent decision the Apex Court has held that the arresting officer should not be Investigating Officer himself xxxxxxxxx.

The Supreme Court in the case of Megha Singh vs. State of Haryana, reported in AIR 1995 SC 2339 has held as under:-

''4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in

the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also

noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol

and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated.

He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the

case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted

to so that there may not be any occasion to suspect fair and impartial investigation.

However, this judgment was considered by the Supreme Court in the case of State Represented By Inspector Of Police, Vigilance and Anti

Corruption, Tirchirapalli, Tamil Nadu vs. V. Jayapaul, reported in AIR 2004 SC 2684 and it was held as under:-

Now, we may turn our attention to the case of Megha Singh v. State of Haryana on which reliance was placed by the High Court.

In Megha Singh's case, PW3, the Head Constable,found a country-made pistol and live cartridges on search of the person of the accused. Then,

he seized the articles, prepared a recovery memo and a 'rukka' on the basis of which FIR was recorded by the S.I. of police. However, P.W.3--the

Head Constable himself, for reasons unexplained, proceeded to investigate and record the statements of witnesses under Section 161 Cr.P.C. The

substratum of the prosecution case was sought to be proved by the Head Constable. In the appeal against conviction under Section 25 of the Arms

Act and Section 6(1) of the TADA Act, this Court found that the evidence of PWs 2 & 3 was discrepant and unreliable and in the absence of

independent corroboration, the prosecution case cannot be believed. Towards the end, the Court noted ""another disturbing feature in the case"". The

Court then observed:

PW 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the

accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have

proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the

investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any

occasion to suspect fair and impartial investigation"".

The conviction was set aside by this Court for theabove reasons.

At first blush, the observations quoted above mightconvey the impression that the Court laid down a proposition that a Police Officer who in the

course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further Investigation if the

FIR was recorded on the basis of the information furnished by him. On closer analysis of the decision, we do not think that any such broad proposition

was laid down in that case. While appreciating the evidence of the main witness, i.e., the Head Constable (PW3), this Court referred to this additional

factor-namely, the Head Constable turning out to be the investigator. In fact, there was no apparent reason why the Head Constable proceeded to

investigate the case bypassing the Sub-Inspector who recorded the FIR. The fact situation in the present case is entirely different. The appellant--

Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so, he did not have

personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of investigator--

pure and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of any witness, as was

done in Megha Singh's case, does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even

before the trial commenced.

Thus, it is clear that in absence of any bar under CrPC it cannot be said that merely because the first informant/complainant and the investigating

officer was the same person, therefore, the investigation was bad, unless and until it is shown that the investigation was biased or tainted.

The Supreme Court in the case of H.N. Rishbud and Another vs. State of Delhi, reported in AIR 1955 SC 196 has held that incompetence of the

Investigating Officer cannot be argued after the charge-sheet is filed. It is further held that invalidation of investigation would not always nullify the

cognizance or trial based thereon when the charge-sheet is filed. A defect or illegality in investigation, however, serious, has no direct bearing on the

competence or the procedure relating to a cognizance or trial because a valid and legal police report cannot be said to be a foundation of jurisdiction of

the Court to take cognizance.

The Supreme Court in the case of Union of India vs. Prakash P. Hinduja and Another, reported in AIR 2003 SC 2612 has held as under:-

''20. An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also

be examined. Section 5-A of the Prevention of Corruption Act, 1947 provided that no police officer below rank of a Deputy Superintendent of Police

shall investigate any offence punishable under Section 161, Section 165 and Section 165-A IPC or under Section 5 of the said Act without the order of

a Magistrate of the First Class. In H.N. Rishbud (supra) the investigation was entirely completed by an officer of the rank lower than the Deputy

Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings

on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the

said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed

and the following principle was laid down:- ""The question then requires to be considered whether and to what extent the trial which follows such

investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code

in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we

are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance

or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere

irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to

cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the

material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court

to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading ""Conditions requisite for

initiation of proceedings."" The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e.

Sections 193 and 195 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190

does not. While no doubt, in one sense, clauses (a),(b) and (c) of section 190(1) are conditions requisite for taking of cognizance, it is not possible to

say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or

(b) of Section 190(1) (whether it is one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error

in a proceeding antecedent to the trial.

The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. The King AIR 1950 PC 26 held that if cognizance is in

fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial,

which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an

illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position,

even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge sheet without the approval of CVC,

the cognizance taken by the learned Special Judge on the basis of such a charge sheet could not be set aside nor further proceedings in pursuance

thereof could be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence

and in quashing further proceedings of the case.

Thus, it is clear that unless and until the defence points out any bias on the part of the Investigating Officer, the prosecution case cannot be thrown

merely on the ground that the complainant as well as the Investigating Officer was the same. As nothing has been pointed out by the Counsel for the

applicant to show any mala fide action on the part of the investigation, therefore, it is held that the investigation done by Laurence Khes (P.W.6)

cannot be held to be illegal.

(15) It is next contended by the Counsel for the applicant that the entire case rests on the evidence of witnesses, who are police personnel and were

the member of the search party, therefore, their evidence should not be relied. The submission made by the Counsel for the applicant, cannot be

accepted as there cannot be a straight-jacket formula, that the evidence of police personnel cannot be accepted. The Supreme Court in the case of

Anil @ Andya Sadashiv Nandoskar vs. State of Maharashtra, reported in (1996)2 SCC 589 has held as under:-

''5. Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all

police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent

infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be

carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they

are police officials does not by itself give rise to any doubt about their credit worthiness. Xxxxxxxxxxxxxxxxxxx

The Supreme Court in the case of Gian Chand Vs. State of Haryana reported in (2013) 14 SCC 420 has held as under :

''31. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case

can be seen with doubt where all the witnesses are from the Police Department.

In Rohtash Kumar v. State of Haryana [(2013) 14 SCC 434 ] this Court considered the issue at length and after placing reliance upon its earlier

judgments came to the conclusion that where all witnesses are from the Police Department, their depositions must be subject to strict scrutiny.

However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in

the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought.

The Court held as under:

“Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that

the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to

the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.â€​

(See also Paras Ram v. State of Haryana [(1992) 4 SCC 662], Balbir Singh v. State [(1996) 11 SCC 139], Akmal Ahmad v. State of Delhi [(1999) 3

SCC 337], M. Prabhulal v. Directorate of Revenue Intelligence [(2003) 8 SCC 449] and Ravindran v. Supt. of Customs [(2007) 6 SCC 410].)

In State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652] this Court examined a similar issue in a case where no person had agreed to affix

his signature on the document. The Court observed that: (SCC p. 662, para 21)

“21. … it is an archaic notion that actions of the police officer should be approached with initial distrust. … At any rate, the court cannot [begin]

with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around.â€​

The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a

police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to

the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of

witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the

truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time

of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for

the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

In Appabhai v. State of Gujarat [ 1988 Supp SCC 241] this Court dealt with the issue of non-examining the independent witnesses and held as

under: (SCC pp. 245-46, para 11)

“11. … the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally

insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from

the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves.

This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this

handicap with which the investigating agency has to discharge its duties.â€​

The principle of law laid down hereinabove is fullyapplicable to the facts of the present case. Therefore, mere non-joining of an independent

witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the

version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.

As nothing could be pointed out by the Counsel for the applicant so as to make the evidence of the witnesses as unreliable, therefore, their evidence

cannot be discarded merely on the ground that they are police personnel or were the members of the search party.

(16) Furthermore, it is well-established principle of law that whileexercising the power under Section 397/401 of CrPC, this Court cannot re-appreciate

the evidence and cannot re-appreciate the findings of fact recorded by the Courts below, until and unless the findings are pointed out to be perverse

and contrary to record. The counsel for the applicants could not point out any perversity in the findings recorded by the Courts below. Accordingly, it

is held that the prosecution has succeeded in establishing beyond reasonable doubt that the applicant is guilty of committing an offence under Section

25(1-B)(a) of Arms Act.

(17) So far as the question of sentence is concerned, it is submitted bythe counsel for the applicant that the applicant had remained in jail for a period

of 120 days during pendency of trial. Now, he has been arrested on 15/12/2017 in connection with another case and is in jail, therefore, the period

already undergone by the applicant, is sufficient to meet the ends of justice. According to the prosecution case itself, on the date of arrest the applicant

was carrying a reward of Rs.5,000/-. Even at present also, the applicant is in jail in connection with some other case, which was registered against him

in the year 2010. Thus, under the facts and circumstances of case, it is clear that the applicant has a criminal history and even after committing the

offence in question in the year 2008 the applicant did not improve himself and had also committed another offence in the year 2010.

(18) Considering the conduct of the applicant, this Court is of theconsidered opinion that the jail sentence of rigorous imprisonment of one year as

awarded by the trial Court and confirmed by the appellate Court, does not require any interference. Accordingly, the judgment and sentence dated

31st January, 2011 passed by Additional Judge to the Court of Fourth Additional Sessions Judge (Fast Track), Guna in Criminal Appeal No.155/2010

and the judgment and sentence dated 06/04/2010 passed by JMFC, Guna in Criminal Case No.185/2009, are hereby affirmed.

(19) The applicant is on bail. His bail bonds and surety bonds are hereby cancelled. The applicant is said to be already in jail in connection with some

other case. Therefore, there is no need to give a direction to the applicant to surrender before the trial Court.

(20) It is made clear that even if the applicant is granted bail inanother case, then he shall not be released unless and until the sentence awarded in this

case is undergone by the applicant.

(21) The revision fails and is hereby dismissed.