Criminal Appeal No. 742-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 742-SB of 1995 Date of Decision: 05.05.2009 Bhant Singh @ Bhagwant Singh son of Kishan Singh, aged 55 years, Agriculturist, resident of village Sanghera, District Sangrur. ... Appellant Versus State of Punjab. ... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bikramjit Arora, Advocate, (Amicus-curiae), for the appellant. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgement of conviction, and the order of sentence, dated 13.11.95, rendered by the Court of Additional Judge, Designated Court, Sangrur, vide which, it convicted the accused, (now appellant), for the offence, punishable under Section 25 (1-B), Arms Act, 1959, and sentenced him, to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 2000/-, Criminal Appeal No. 742-SB of 1995 2 and in default of payment thereof, to further undergo rigorous imprisonment, for a period of six months. 2. The facts, in brief, are that on 10.03.90, Sub Inspector Pargat Singh, and other Police officials, were present in Police Station Barnala, in connection with the investigation of case FIR No. 66 of 06.03.90, under Sections 212 and 216 of the Indian Penal Code, against the accused. At that time, Naib Singh son of Munshi Singh, resident of Barnala, was also joined. During interrogation, the accused made a disclosure statement, that he had concealed 50 live cartridges of A.K. 47 rifle tied in a handkerchief, under the clothes, in an iron box lying in his house, of which he only knew, and could get the same recovered, by pointing out. Consequently, his statement was reduced into writing, which was signed by him (accused), and attested by the witnesses. Thereafter, the accused led the Police party, to the pre-disclosed place, and got recovered 50 live cartridges of A.K. 47 rifle, tied in a handkerchief, lying under the clothes, in an iron box. The said cartridges were taken into possession, vide recovery a separate memo. Ruqa was sent to the Police Station, on the basis whereof, formal first information report, was recorded. The site plan of the place of recovery was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Criminal Appeal No. 742-SB of 1995 3 Section 25 Arms Act read with Section 5 Terrorist and Disruptive Activities (Prevention) Act, 1987, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Anju Nagpal, Clerk, Office of the District Magistrate, Sangrur (PW1), Head Constable Bhupinder Singh (PW2), and Inspector Pargat Singh (PW3). The Public Prosecutor for the State, gave up Naib Singh, independent witness, as won over by the accused. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He produced order DA, dated 19.05.91, and closed the defence evidence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, the instant appeal, was filed by the accused (now appellant). 8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the appellant, at the very outset submitted that though Naib Singh, independent witness, was joined, yet he was not examined and, as such, an adverse inference could be drawn that Criminal Appeal No. 742-SB of 1995 4 had he been examined, he would not have supported the case of the prosecution. He further submitted that the prosecution, thus, withheld the best evidence, in its possession. The submission of the Counsel for the appellant, does not appear to be correct. No doubt, Naib Singh, independent witness, was joined during the course of investigation, yet he sided with the accused, during the trial of the case. As such, the Public Prosecutor for the State, gave him up as won over, as he knew that, in case, he was examined, he would damage the case of the prosecution. It is for the Public Prosecutor for the State to decide, as to which witness he wanted to examine and which witness he did not want to examine. However, such discretion is to be exercised, in a bonafide manner. The discretion exercised, by the Public Prosecutor for the State, in giving up Naib Singh, as won over by the accused, could not be said to be, in any way, arbitrary or capricious. In Masalti Vs. State of U.P., AIR 1965, SC, 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness must be examined, even though his evidence, may not be material, or even if, it is known that he has been won over or terrorized. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses, for the prosecution, who were considered to be not interested persons, their Criminal Appeal No. 742-SB of 1995 5 evidence cannot be doubted, on the ground of their official status. The evidence of the official witnesses on scrutiny has been found to be cogent, convincing, reliable, and trustworthy. The same was, thus, sufficient to bring home the guilt to the accused. The principle of law laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Non-examination of Naib Singh, independent witness, in view of the facts and circumstances, referred to above, did not prove fatal to the case of the prosecution. The submission of the Counsel for the appellant, thus, being devoid of merit is rejected. 10. It was next submitted by the Counsel for the appellant, that the appellant, had been in custody of the Police, for the last four days, when he made a disclosure statement, and, as such, it could be said that the same was not voluntary. Herein too, the submission of the Counsel for the appellant, does not appear to be correct. It was, during the course of investigation, in the other case, in which the appellant was already in custody, that when he was interrogated, he made a disclosure statement regarding the concealment of the cartridges, referred to above. The mere fact that the appellant had been in custody of the Police, in another case, for the last four days, when he made a disclosure statement did not mean that such a disclosure statement, was the result of duress or coercion. In his statement, under Section 313 of the Code of Criminal Procedure, no plea was taken up by the accused, that he was tortured, being in Police custody, for the last four days, and, as such, was pressurized to make a disclosure statement. The only plea, Criminal Appeal No. 742-SB of 1995 6 which was taken up by him, was that he was apprehended, from his house, in the presence of respectables of his village, and was falsely implicated in this case. He further stated that nothing was recovered from him. No defence witness was examined, by the accused, that he was falsely implicated, in the instant case. The Court, of its own, by merely acting on conjectures and surmises cannot hold so. No doubt, the case of the prosecution regarding the making of disclosure statement, by the accused, and consequent recovery, in pursuance thereof, is based on the evidence of the official witnesses only, but that does not mean, that the same should be distrusted and disbelieved. After careful and cautious scrutiny, if the Court, comes to the conclusion that the evidence of the prosecution witnesses, does not suffer from any serious infirmity, then the same cannot be disbelieved. In the instant case, the evidence of the prosecution witnesses has been subjected to indepth scrutiny, and the same has been found to be cogent, convincing, reliable and trustworthy. From the said cogent, convincing, reliable, and trustworthy evidence, it was proved that the accused made a voluntary disclosure statement, and got recovered the aforesaid cartridges in pursuance thereof. In this view of the matter, the submission of the Counsel for the appellant, that the disclosure statement was not voluntary, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant, that the cartridges were not converted into a parcel and, as such, the Criminal Appeal No. 742-SB of 1995 7 possibility of tampering with the same, at any point of time, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that the cartridges were not converted into a parcel, and sealed did not go to prove that the same were tampered with, at any point of time. The cartridges bore specific identification marks. Inspector Pargat Singh, who appeared as, PW3 , in his cross-examination stated that P1 to P50, cartridges were the same, which were got recovered by the accused. He further stated that, even if, those cartridges were mixed with other cartridges, he could well identify a few of them. The only obligation upon the prosecution was to get the cartridges identified, from the prosecution witnesses. In this case, the case property was produced and the same was got identified from the prosecution witnesses. The same stood connected with the present case. In the absence of any evidence, to the effect, that it was tampered with, at any point of time, the Court cannot act on mere conjectures and surmises to hold otherwise. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. Criminal Appeal No. 742-SB of 1995 8 14. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. 15. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 17. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 05.05.2009 (SHAM SUNDER) AMODH JUDGE