HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.921 of 2004 DATED: 08.08.2011 BETWEEN: Adaka Rattalu .. Petitioner And The State of A.P. Rep.by Public Prosecutor .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.921 of 2004 JUDGMENT: This criminal revision case arises out of the judgment dated 02.06.2004 passed by the learned XI Additional District and Sessions Judge, Fast Track Court, Guntur in Crl.A.No.423 of 2001 confirming the conviction and sentence passed on 03.09.2001 by the Principal Assistant Sessions Judge, Guntur in S.C.No.793 of 1998. 2. The appellant was tried for the offences under Sections 25(1) (A) of the Arms Act and 353 of IPC and he was convicted for both the offences and was sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/- for the offence under Section 25(1)(A) of the Arms Act and further sentenced to undergo simple imprisonment for a period of three months for the offence under Section 353 IPC. 3. I have heard Sri K.Srinivas, learned counsel appearing for the petitioner and the learned Additional Public Prosecutor representing the State. 4. It was the case of the prosecution that on 16.05.1997 at about 11.45 PM while PW.1-police constable along with another constable- PW.2 was on patrolling duty, noticed the revision petitioner at D.S.Nagar, Guntur. It is said that on seeing the police, the revision petitioner started running away. PWs.1 and 2 tried to stop the revision petitioner, but he threatened them by showing pistol. It is said that the Sub-Inspector of Police also came there at that time and subsequently all of them apprehended him. The revision petitioner was found in possession of 9mm caliber pistol with 11 live cartridges. The Sub-Inspector of Police seized the pistol in the presence of PWs.1 and 2-police constables under a cover of mediators’ report. The pistol is said to be unlicensed. PW.3– Incharge Sub-Inspector of Police investigated into the offence and PW.4-Regular Sub-Inspector of Police after taking charge verified the investigation conducted by PW.1, completed the investigation and filed charge sheet. 5. Before the learned trial Court, the prosecution, in order to prove its case, examined PWs.1 to 4, marked Exs.P.1 to P.4 and MOs. 1 and 2. 6. The pistol MO1 and 11 catridges-MO2 were said to be recovered by the police proceedings dated 16.05.1997 at about 11.45 PM and there are independent witnesses to the occurrence of incident. The trial Court recorded conviction and the appellate Court confirmed the same solely basing on the evidence of police witnesses. 7. Learned counsel appearing for the petitioner would submit that the evidence of PWs.1 to 3 is highly inconsistent and consists of material discrepancies. The learned counsel would further submit that though the evidence on record reveals that so many persons witnessed the incident, the police did not try to take any one of them as mediators and the investigating officer did not even cite any independent witness. The learned counsel therefore urges that the conviction and the sentence passed against the petitioner cannot be sustained and they are liable to be set aside in this revision case. 8. The evidence of PWs.1 to 3 shows that on seeing the police, the revision petitioner started running towards the tank. It is not understandable as to why the revision petitioner started running away on mere seeing the police without there being any attempt from the police to arrest him. Further when the revision petitioner started running away, the police prevented him and the revision petitioner released himself from their clutches, it cannot therefore be said that he obstructed or prevented the police from discharging their duties. Therefore, certainly the conviction under Section 353 IPC cannot be maintained. 9. In so far as the offence under Section 25(1)(A) of the Arms Act, the evidence of PW.1-constable reveals that the incident had taken place in a residential area, several people were present and witnessed the incident, and that the Sub-Inspector came there, street lights were also burning at the time when the apprehension of the accused took place. PW.1 also stated in his evidence that he did not find any person of the locality to act as mediator, though several persons were present there. Whereas PW.2 another constable stated in his evidence that nobody was present at the time when the police proceedings were drafted. He cannot say how they brought the accused to the police station. He also stated that he narrated the incident to the people, who met him on the way to police station and he would not give their names. PW.3-Incharge Sub-Inspector of Police and Investigating Officer stated in his evidence that the accused informed him that he came to D.S.Nagar to meet one Ongole Veeraiah, but he did not examine Ongole Veeraiah during his investigation. The evidence of PW.3 further discloses that the accused started running away only on seeing them, they were at the scene of offence for about one hour 15 minutes, but nobody complained about the accused threatening the public by showing the revolver. It is also stated that they noticed several people witnessing the incident and they were present till the arrest took place and recording of the confession and preparation of police proceedings under Ex.P.1 were completed. Curiously PW.3 stated that they did not examine anybody though several people were present. 10. The learned counsel for the revision petitioner/accused relied on the following decisions. 1) In SAHIB SINGH v STATE OF PUNJAB[1] the Supreme Court held as follows: “Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found, as in the present case, that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect weight of evidence of the police officer, though not its admissibility. “ 2) In NARSI v STATE OF HARYANA[2] the Supreme Court held as follows: “No independent witness was kept present at the time of either taking the appellant into custody or while seizing the pistol and the cartridge. The reason given by Ganga Ram in this behalf is that because his maternal uncle was present, he did not think it fit to call any other person to witness the seizure of the weapon and the cartridge. This obviously is a lame excuse. In the absence of any independent evidence, seizure of a pistol and a cartridge from possession of the appellant becomes doubtful. It is also highly improbable that the appellant had presented himself with a weapon which was unlicensed. He had not gone there to make confession. He had gone to the police station because he was wanted by the police in that case. No other witness was examined by the prosecution on the point of recovery of pistol and a cartridge from the possession of the appellant. As the evidence of Ganga Ram does not appear to be truthful, the conviction of the appellant will have to be set aside. “ 3) In PRADEEP NARAYAN MADGAONKAR AND OTHERS v. STATE OF MAHARASHTRA[3] the Supreme Court held as follows: “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 investigating or 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. In the present case the police officials did not join any independent witnesses of the locality and made an attempt to create an impression on the Courts that both the witnesses were witnesses of locality and were independent knowing full well that one of the witnesses was under their influence and available to them, as he had been joining the raids earlier also. The very fact that the police officers joined these witnesses in the raid creates a doubt about the fairness of the investigation.” 11. In the instant case, it is not the version of the investigating officer that no witnesses were available at the place of occurrence at the time when the accused was arrested and revolver and 11 cartridges were seized from him. PW.3-investigating officer admits that he did not take any steps to examine any of the persons present as mediators of the locality and also that he did not examine any of them. There is no explanation by the investigating officer as to why he did not cite any independent witness to act as mediator for effecting arrest of the accused and seizure of the material objects. The evidence of the investigating officer clearly shows that several people of the locality where the incident took place were present at the time of incident. In the absence of any explanation as to why the investigating officer did not cite any independent witness of the locality as mediators for arrest and seizure of the revolver and cartridges from the petitioner/accused, I am of the view that it is quite unsafe to convict the accused basing on the evidence of police witnesses. The conviction and sentence recorded by the trial Court which is confirmed by the appellate Court is therefore, unsustainable and is liable to be set aside in this revision case. 12. Consequently, the conviction and sentence passed against the petitioner by the learned XI Additional District and Sessions Judge, Fast Tract Court, Guntur in Crl.A.No.423 of 2001 confirming the conviction and sentence passed on 03.09.2001 by the Principal Assistant Sessions Judge, Guntur in S.C.No.793 of 1998 for the offences punishable under Section 25(1)(A) of the Arms Act and Section 353 IPC are set aside. The Criminal Revision Case is allowed. __________________ Date: 08.08.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Revision Case No.921 OF 2004 DATE: 08.08.2011 [1] 1996(2)ALD (CRL.) 904(S.C) [2] 1999(1)ALD(CRL.)8 (SC) [3] (1995)4 SCC 255