State of Haryana vs Sadhu

A.S. Nehra, J.

This appeal is directed against the judgment of the Additional Sessions Judge, Kurukshetra, dated 14.5.1988, by which the respondent has been acquitted of the charge under section 25 of the Arms Act. 1959.

Briefly stated, the prosecution story is that on the night 22/23.4.85, SubInspector Rajpal Singh, the then Station House Officer, Police Station, Sadar Kaithal, accompanied by Constable Puran Mal and other police officials, left Kaithal at about 10.00 p.m. for anti robbery patrolling. At about 12.30 a.m. during the night the police party was present at the crossing in the area of village Dilanwali when the respondent came from the side of village Malheri and, on seeing the police party he tried to slip away. On suspicion he was apprehended and his personal search was conducted in accordance with law. As a result thereof, one countrymade 12 bore pistol exhibit P1 was recovered from the left side dub of his chadder and four live cartridges (Exhibits P.2 to P.5) were recovered from the right side pocket of his shirt. He could not produce any licence or permit for the possession of the firearm and ammunition. Accordingly, rough sketch of the pistol was drawn and then the pistol and the cartridges were taken into possession vide seizure memo attested by the witnesses. A ruqa was sent to the Police Station, Sadar Kaithal, and on its basis the present case against the respondent was registered. A rough site plan of the place of recovery along with correct marginal notes were prepared. After obtaining the sanction of the District Magistrate, the respondent was prosecuted.

The present case against the respondent is connected with the main case relating to FIR No. 111 dated 14.4.1985 under sections 309/402, Indian Penal Code, as the respondent along with four others was found making preparation for committing dacoity in the area of village Padla on the night of 14.4.1985, by Sub Inspector Rajpal Singh and on a raid being conducted, the respondent along with Bhalla and Chander were successful in escaping from the spot while two others, namely, Sharma and Banarsi, were apprehended at the spot.

In order to sustain the charge against the respondent, the prosecution examined Sub Inspector Rajpal Singh PW1, Investigating Officer of the case, who stated that on the night intervening 22nd and 23rd April, 1985, he was present at the crossing in the area in village Dillanwali that the respondent came from the side of Malheri and was apprehended that on the personal search of the respondent, one country made pistol (Exhibit P1) and four live cartridges (Exhibits P2 to P5) were recovered from his possession which he had kept without any valid licence that he carried out the entire investigation of the case and that on 1.5.1985 he got the pistol tested by ASI Arjan Singh Armour who found the same to be in working condition. In short, this witnessed supported the prosecution version on all the material points. The prosecution examined Constable Puran Mal PW2, a witness of the recovery, who also supported the prosecution version regarding the recovery of the pistol and the cartridges from the possession of the respondent in the manner alleged by the prosecution and ASI Arjan Singh PW 3 who proved having tested the pistol on 1.5.1985 and found the firearm to be in working order.

When examined under section 313, Code of Criminal Procedure, the respondent refuted the allegations levelled against him and pleaded false implication.

The learned counsel for the appellantState argued that the prosecution case has been proved against the respondent from the evidence of the PWs beyond reasonable doubt.

It is evident that the Investigating Officer did not join any witness from the public. It is admitted by PW1 S.I. Rajpal Singh that the police party started from the police station at about 10.00 p.m. and reached the place of recovery at mid night and that the police party had conducted checking at the bus stands of Garhi and Padla before reaching the place of recovery. PW1 SI Rajpal Singh further admitted that the police party had checked some persons at the above mentioned two places but he did not remember their exact number. The police party failed to join any independent witness. It is not believable that no independent person was available. It seems that no effort whatsoever was made to join independent person and nonjoining thereof seems to be a deliberate attempt on the part of the Investigating Officer. It is also not believable that no independent person came to the spot during the entire period of investigation. It is pertinent to observe here that during cross examination PW1 S.I. Rajpal Singh admitted that Sathu respondent is a licence holder of S.B.B. L. gun. That gun is alleged to have been recovered from the possession of one Bhalla during the investigation of case FIR No. 11 dated 14.4.1985 and it is also admitted by Investigating Officer that he came to know about this fact during the investigation but he neither mentioned this fact in the report submitted under section 173, Code of Criminal Procedure, in a case against Bhalla accused under section 25 of the Arms Act nor did he prosecute Sadhu respondent under section 30 of the said Act. In all likelihood, when Sadhu respondent is a licence holder of a gun, he would not keep an illegal weapon in his possession particularly when he knew that a case under sections 399/402, Indian Penal Code, stood already registered against him and the police was searching for him. In all probability, therefore, the recovery of the pistol and the cartridges from the possession of the respondent is doubtful. PW2 Constable Puran Mal has stated that he had not sent Sadhu respondent previously. It was mid night and there is no explanation on the file much less just to show the manner in which Constable Puran Mal was able to identify the respondent in the darkness. It is pertinent to observe here that, on a secret information alleged to have been received by S.I. Rajpal Singh that the respondent alongwith four others were preparing for committing dacoity in the town of Kaithal, he made a raid in the area of village Padla when the five persons including the respondent were found present there with arms and ammunition and two of them, namely Sharma and Banarsi, were apprehended at the spot while three others including the respondent were successful in feeling away from the spot. It is strange that on the night of 21.4.1985 the Investigating Officer (PW1) held a nakabandi and apprehended Bhalla and Chander, and on the next night he was able to apprehend Sadhu respondent. It shows that the prosecution story is totally false and fabricated and the recovery of the pistol and cartridges did not take place in the manner alleged by the prosecution.

In view of the above mentioned discussion, there is no merit in this appeal and the same is dismissed.