HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 05.07.2019 DELIVERED ON 06.09.2019 Court No. - 34 Case :- CRIMINAL REVISION No. - 620 of 1996 Revisionist :- [ENTITY] And Another Opposite Party :- [ENTITY] Counsel for Revisionist :- [ENTITY],[ENTITY] Counsel for Opposite Party :- Govt.Advocate Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned counsel for revisionists and learned A.G.A. for State.
2. This criminal revision has been filed against the judgment and order dated 18.04.1996, passed by Sri [ENTITY], Special Judge (EC Act), Banda, in [CASE NUMBER]. Both the aforesaid appeals have been decided by Special Judge by means of impugned common judgment dated 18.04.1996. By impugned judgment conviction and sentence awarded to Accused-Revisionists vide judgment dated 04.08.1994 passed by Chief Judicial Magistrate, Banda, has been affirmed.
3. Learned Trial Court vide judgment dated 04.08.1994 has convicted [ENTITY], Revisionist-2 under [SECTION] and [SECTION] of [ACT] (hereinafter referred to as "[ACT]") and sentenced to 3 months Rigorous Imprisonment. Revisionist-2, [ENTITY] has been convicted and sentenced under [SECTION] [ACT] to undergo one year rigorous imprisonment. It is also provided that period already spent in jail shall be adjusted towards the sentence awarded.
4. Being aggrieved with the judgment and order dated 04.08.1994, Accused-Revisionists approached Appellate Court separately. Accused-Revisionist [ENTITY] filed [CASE NUMBER] whereas Accused-Revisionist [ENTITY], filed [CASE NUMBER]. Both appeals were clubbed and heard together and have been decided by a composite judgment and order 18.04.1996, impugned in this revision. Appellate Court has dismissed appeals of Revisionists and affirmed judgment and order dated 04.08.1994 passed by Trial Court.
5. Feeling aggrieved by the judgment and order dated 18.04.1996 passed by Appellate Court this revision has been preferred by Accused-Revisionists.
6. The brief facts giving rise to instant revision are that on 14.2.1990, at about 10.00 AM, while Police of Police Station Mathaudh, District, Banda was on routine patrolling, they received an information through Informer that an illegal factory of manufacturing single barrel gun was running and apprehension of untoward incident was also expressed. Relying on this information, Station Officer, [ENTITY], along with Police personnel reached in front of the house of Revisionist-2, [ENTITY], at 10.00 AM and saw aforesaid Revisionist standing at the door along with a gun. Seeing Police, he tried to escape by going inside but Police seized and arrested him by force. On enquiry he disclosed his name as [ENTITY] son of [ENTITY], resident of village Duredi, Police Station, Mathaudh, District Banda.
7. From possession of Accused-Revisionist, [ENTITY], one single barrel factory made gun, two cartridges, one of red colour and another black, one another cartridge LG made in Holland, white in colour, one cartridge LG Indian, one LG ordinary and one empty cartridge were recovered, for which, he could not show any licence. He told that the said gun belong to Accused-Revisionist-1, [ENTITY], who had gone to attend nature's call leaving his gun and cartridges with [ENTITY]. Guns and cartridges were taken by Police in possession and after sealing the same, recovery memo was prepared and a copy thereof was handed over to accused.
8. Thereafter along with recovered articles Police returned to Police Station and deposited the same. Case under [SECTION] [ACT] against Accused-Revisionist-2, [ENTITY], and under [SECTION] of [ACT] against Accused-Revisionist, [ENTITY], were registered. Thereafter Investigating Officer (hereinafter referred to as "I.O.") PW-3, [ENTITY] investigated the case and prepared site plan Ext. ka-6. He sought necessary sanction to prosecute Accused-Revisionist, [ENTITY] under [SECTION] of [ACT]. District Magistrate vide order dated 04.10.1990 (Ext. ka-7) accorded sanction for prosecution against Accused-Revisionist, [ENTITY] under [SECTION] of [ACT]. After conclusion of investigation I.O. submitted charge sheet Ext. ka-2 in the Court of First Additional Chief Judicial Magistrate, Banda against Accused-Revisionist, [ENTITY] and, Ext. ka-3 against Accused-Revisionist, [ENTITY].
9. Additional Chief Judicial Magistrate-I took cognizance of the offence on 15.11.1990. Thereafter he framed charge against Accused-Revisionist, [ENTITY] on 07.05.1991 as under:
eSa vftr euksgj izFke vfr0 eq[; U;kf;d n.Mkf/kdkjh] ckank rqe vfHk;qDr cyohj flag ij fuEuor~ vkjksi yxkrk gwWa%& 1- ;g fd fnukad 14-2-90 dks le; djhc 10 cts fnu cgn xzke nqjsM+h Fkkuk eVkS/k esa vkids edku ls vkids ikl ls iqfyl deZpkfj;ksa us ,d cUnwd ,dukyh 12 cksj rFkk 6 dkjrwl 12 cksj ds cjken fd;s ftldks j[kus dk vkids ikl dksbZ oS/k ykbZlsal ugha FkkA bl izdkj vkius /kjk 25 vk;q/k vf/kfu;e ds vUrxZr n.Muh; vijk/k fd;k tks esjs izlaKku esa gSA ,rn~}kjk vki dks funsZ'k fn;k tkrk gS fd vki dk ijh{k.k bl U;k;ky; }kjk fd;k tk;sxkA I, [ENTITY], I Additional Chief Judicial Magistrate, Banda charge you accused [ENTITY] as under:-
1. That on 14.02.1990 at about 10.00 AM, in Village Duredi within P.S. Mathaudh police personnel recovered a single barrel gun of 12 bore and 6 cartridges of 12 bore from your possession at your house for which, you had no valid licence. Thus you have committed an offense punishable under [SECTION] [ACT] and within my cognizance. You are hereby directed to be tried by this Court for the aforesaid offense.
You are hereby directed to be tried by this Court for the aforesaid charges." (English translation by Court)
10. Accused-Revisionist, [ENTITY] was charged vide order dated 07.05.1991 as under:
eSa vftr euksgj izFke vfr0 eq[; U;kf;d n.Mkf/kdkjh] ckank rqe vfHk;qDr t;dj.k ij fuEuor~ vkjksi yxkrk gwWa%& 1- ;g fd fnukad 14-2-90 dks le; djhc 10 cts fnu cgn xzke nqjsM+h Fkkuk eVkSa/k esa cyohj flag ds ikl ls vkidh ykbZlsalh cUnwd 12 cksj iqfyl deZpkfj;ksa us cjkcn dhA ftldks vkius viuh cUnwd dk voS/k iz;ksx fd;k] bl izdkj /kkjk 29@[SECTION] vk;q/k vf/kfu;e ds vUrxZr n.Muh; vijk/k fd;k tks esjs izlaKku esa gSA ,rn~}kjk vki dks funsZ'k fn;k tkrk gS fd vki dk ijh{k.k bl U;k;ky; }kjk fd;k tk;sxkA "I, [ENTITY], First Additional Chief Judicial Magistrate, Banda charge you accused [ENTITY] as under:-
1. That on 14.02.1990 at about 10 AM in village Duredi, P.S. Mathaudh police personnel have recovered your 12 bore licensed gun from possession of [ENTITY] and thereby you have made illegal use of your gun and thus committed an offence punishable under [SECTION] [ACT] and within the cognizance of this Court.
You are hereby directed to be tried by this Court for the aforesaid charges." (English translation by Court)
11. Thereafter prosecution in order to substantiate the guilt of Accused-Revisionists, examined three witnesses namely PW-1 Constable [ENTITY], who was amongst the police team who arrested accused [ENTITY] at his house; PW-2 [ENTITY] who had also accompanied Police Party and a witness of recovery of arms and ammunition and arrest of the Accused, [ENTITY], and PW-3 [ENTITY], I.O., who proved site plan Ext. ka-6, sanction for prosecution of Accused-Revisionist, [ENTITY] (Ext. ka-7). PW-2 has also proved charge-sheet, Ext. ka-2, and ka-3 against Accused-Revisionists.
12. After closure of prosecution evidence, Accused-Revisionists were examined under [SECTION] [ACT] on 07.05.1991. They had denied prosecution story and stated that witnesses are deposing falsely. Accused-Revisionist, [ENTITY] has stated that co-accused [ENTITY] after leaving his gun and 10 cartridges with him inside his house, had gone to attend the call of nature. In the mean time Inspector reached and recovered the gun. They had not recovered LG cartridges from his possession. Similarly Revisionist, [ENTITY], has also denied prosecution story and stated the same to be false. Supporting statement of Accused [ENTITY], he has stated that he had left one licensed gun and 10 cartridges with his bhanja-[ENTITY] inside his house and had gone to attend nature's call. In the mean time, Inspector came and made recovery. He has stated that no LG cartridge was recovered.
13. It appears that both the Accused-Revisionist were again examined under [SECTION] [ACT] on 09.05.1994. [ENTITY] has reiterated his earlier statement and stated that on the date of occurrence at about 10.00 AM, [ENTITY] had kept his single barrel gun along with 10 cartridges in his house saying that he is going to attend call of nature. In the mean time Station Officer of Police Station arrived and recovered the aforesaid gun and cartridges from inside the house. He also stated that villagers had seen the occurrence but due to fear of police nobody came forward. In the mean time, [ENTITY], came over there and demanded his gun but police did not hand over and challaned them. [ENTITY] further has stated that PW-1 and PW-2 are police personnel and deposing falsely. They have prepared a fabricated case against him and never visited the place of occurrence; alleged sanction obtained from District Magistrate is also a manufactured document and since he did not give money to police, he has been falsely implicated. Accused-Revisionist, [ENTITY], on 09.05.1994 has reiterated his earlier stand saying that prosecution story is false.
14. Thereafter in defence, Accused-Revisionist, [ENTITY], examined himself as DW-1. He has stated that Accused, [ENTITY] is his Bhanja and on 13.09.1990 he had gone to his village and stayed at his house. He also had taken his lisensed gun and cartridges with him. In the next morning at about 9-10 AM he had gone to ease near Cane River where he also took bath. When he returned to the house of [ENTITY], he saw that Inspector was coming from inside the house of [ENTITY] with his gun. On enquiry, Inspector said that he was taking the accused [ENTITY] with the gun and cartridges to Police Station. He has also stated that in his belt there were no LG cartridges. He also had gone to Police Station but Police personnel had driven him away.
15. In defence accused have also examined [ENTITY] as DW-2. He has stated that on 13/14.09.1990, [ENTITY] had gone to the house of [ENTITY]. Next day, Inspector reached there and called [ENTITY] who came out of the house empty handed. In the meantime Police personnel along with the Inspector entered the house of [ENTITY]. Inspector sat in the courtyard and other police personnel got opened the lock of the room inside the house and took out a gun, cartridges and the belt. After taking the gun, cartridges, belt and licence, Inspector went away. There were no LG cartridges in the belt when Inspector left for Police Station. [ENTITY] had come back after easing himself. [ENTITY] had protested and said to Inspector that the gun is licensed and why he was taking away the same. Thereafter, Inspector had gone to Police Station along with gun, cartridges and Revisionist, [ENTITY].
16. On appreciation of evidence on record and after hearing counsel for the parties, Trial Court has convicted and sentenced Accused-Revisionist as stated above. Appeal against conviction and sentence recorded by Trial Court having been dismissed, the Accused-Revisionists are before this Court against the impugned order of dismissal of appeal and affirmation of order of Trial Court.
17. I have heard learned counsel for parties and perused the record.
18. Learned counsel for revisionists contended that in this case prosecution has set up its case totally founded on the statement of PWs-1 and 2, Constable [ENTITY] and Constable [ENTITY] and there was no independent witness, therefore, conviction on the basis of only police witnesses is illegal and it cannot be said that prosecution proved its case beyond doubt. He next contended that the gun was licensed and belong to Accused-Revisionist, [ENTITY], who has gone to attend his natural call. Only for a short period it was in the possession of Accused-Revisionist, [ENTITY] and short possession thereof cannot be said to be an offence under [SECTION] of [ACT].
19. It is true that entire prosecution case is founded on the evidence of police personnel but mere fact that witnesses are police personnel does not mean that their evidence must be rejected, if Courts find it clear, truthful and creditworthy.
20. As a matter of rule, there can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on Court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of police officer is found acceptable, it would be an erroneous proposition that Court must reject prosecution version solely on the ground that no independent witness was examined. In [PRECEDENT], it was held:
"Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation of the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
21. In [ENTITY] vs. State 1996(11) SCC 139, Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated time and again by Apex Court vide [PRECEDENT], [PRECEDENT] and [PRECEDENT].
22. In [PRECEDENT], a Two Judge Bench comprising of Hon'ble [ENTITY] and Hon'ble [ENTITY] JJ, in para 90, observed:
" We should not forget that the time of the raid was during the odd hours when possibly no pedestrian would have been trekking on the road nor any shopkeeper remaining in his shop nor a hawker moving around on the pavements."
23. In [PRECEDENT] in para-10, it is said:
"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."
24. Referring to some of the the aforesaid decisions, Court in [PRECEDENT] held:
"It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence." (para 25)
25. In view thereof contention that prosecution evidence comprised of only statement of police personnel, therefore, must be rejected, has no substance and not accepted.
26. Coming to second aspect, I find that recovery of gun and cartridges from possession of [ENTITY] is duly proved, as discussed above. Both the Courts below have recorded concurrent finding on this aspect, which could not be shown perverse or contrary to record.
27. Now the case set up by Accused-Revisionists is that the gun and cartridges were licenced of [ENTITY], who has gone to attend natural call and, therefore, a temporary possession was given to [ENTITY]. This was the explanation given by Accused-Revisionists and to prove it onus lie upon them. The said fact sought to be proved by Sri [ENTITY], DW-2, whose deposition has been found wholly untrustworthy. It is also evident from record that if gun and cartridges were taken by police personnel illegally no complaint was made by [ENTITY] or even by [ENTITY] to any police officer, superior to police personnel who had taken the gun and cartridges. Therefore, defence taken by Accused-Revisionists has been found untrustworthy and afterthought. The findings recorded by both the Courts below are concurrent and in absence of anything to show that same are perverse or there is any misreading or any relevant evidence has not been examined, I find no reason to take a different view in this revision.
28. On the question of sentence, learned counsel for revisionists sought to argue that punishment of one year awarded to Accused-Revisionist, [ENTITY] is excessive but he has been found to be in possession of firearm and cartridges without licence, which is a serious matter and I find no reason to remit the sentence. In my view sentence awarded by Courts below is justified and warrants no interference.
29. Dismissed. Interim order, if any, stands vacated.
[SECTION]. The accused, [ENTITY] and [ENTITY], are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodge in jail to serve out the sentence passed against them. The compliance shall be prepared within two months.
31. Certify this judgment to the lower Court immediately.
Order Date :-06.09.2019 AK