Prem Narayan Singh, J
1. This criminal revision under Section 397 & 401 of Cr.P.C. has been filed by the petitioner being crestfallen by the judgment dated 04.02.2019, passed by the learned III Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore in Cr.A. No.42/2018, affirming the judgment dated 09.03.2018, passed by learned Judicial Magistrate First Class, Dr. Ambedkar Nagar, District Indore in Criminal Case No.743/2007, whereby the petitioner has been convicted for the offence under Section 25 (1-B)(A) of the Arms Act, 1959, sentenced to undergo one year R.I. with fine of Rs.500/- and usual default stipulation.
2. As per prosecution story, police received secret information that one person is carrying illegal weapons. Upon the said information, police party reached to Kishanganj Puliya, one person who was standing on the spot and caught hold him. On search, one pistol and four rounds was found from his possession. He showed his inability to produce the license. Accordingly case was registered. After investigation chargesheet was filed.
3. In order to bring home the charges, the prosecution has examined total 08 witnesses namely Malsingh, Head Constable (PW-1), Ramesh (PW-2), Vijay Khare, Reader (PW-3), Mulayamsingh, ASI (PW-4), R.K. Mithoriya, ASI (PW-5), Suresh Singh, Head Constable (P.W.-6), Komal Singh Jadon, DSP (PW-7) and Irfan Ali, Retd. Head Constable (PW-8). No defence witness has been adduced by the petitioner in his defence.
4. Learned counsel for the petitioner has relied upon the testimony of witness Ramesh (PW-2) who is independent witness and has not supported the prosecution case and has also been declared hostile.
5. It is further contended that the seizure of the pistol on spot, is also doubtful. The statement of Mulayamsingh, ASI (PW-4) has stated in his cross-examination that he has not remembered that who took the pistol from the pocket of petitioner. Further, witness Irfan Ali (PW-8) has stated in his statement that pistol and four live cartridge were seized and returned to concerned police station in sealed envelop after investigation annexed as (Exhibit-P/7). Later on, in his cross-examination, he stated in para 2 that neither there was any seal in Exhibit-P/7 nor inward-dispatch number was there. He also stated that he has not checked the running condition of the pistol by firing it and he said that seized cartridges were live, because firing pin on the cartridges.
6. The petitioner has preferred this criminal revision on several grounds but during the course of arguments, learned counsel for the petitioner did not press this revision on merits and not assail the finding of conviction part of judgment. He confines his argument on the point of sentence only and prays that since the petitioner has already undergone approximately six months six days in jail incarceration, his sentence be reduced to the period already undergone. The petitioner deserves some leniency as he has already suffered the ordeal of the trial since 2003 for a period of 21 years. It is further contended that this petition be partly allowed and the sentence awarded to the petitioner be reduced to the period already undergone by enhancing the fine amount.
7. Learned counsel for the State, on the other hand, supported the impugned judgment and prayed for dismissal of this revision.
8. Now, the point for consideration is, whether the findings of learned trial Courts regarding conviction of the petitioner and the order of passing the sentence is incorrect in the eyes of law and facts.
9. Coming upon the point of evaluation of the prosecution witnesses, certainly one independent witness Ramesh (PW-2) has not borne out the prosecution case. Even, having declared him hostile by the prosecution, in reply of leading questions of Public Prosecutor, he has not corroborated the prosecution story regarding seizure of pistol and cartridges from the petitioner. As such, the prosecution case has not been fortified by this independent witness.
10. At this juncture, the attention of this Court has been drawn towards the law rendered in State of M.P. v. Budhram 1996 JLJ 377, wherein, it has been held that where witnesses of memo statement of accused and recovery memo of weapon have not supported the prosecution case, recovery is not established. In this case, this High Court, having considered the hostility of the witnesses, has also ordained as under : -
"...Nevertheless, it can very well be said that a society gets justice, which it deserves. If the persons are not willing to state or depose about the facts which they have witnessed or regarding the events which took place in their presence, the Courts of law cannot help the situation, as the Courts of law are duty bound to give finding strictly in accordance with law and strictly within the four corners of law."
11. Here, it is also pertinent to mention that police has also filed the statement recorded under Section 161 of Cr.P.C. of other independent witness Mukesh but he has never been produced by the prosecution and no explanation in this regard has been placed before the trial Court. As such, this case has not been supported by any independent witness and it rests only upon the testimonies of police witnesses.
12. It is significant to mention here that all the remaining prosecution witnesses i.e. Malsingh, Head Constable (PW-1), Vijay Khare, Reader (PW-3), Mulayamsingh, ASI (PW-4), R.K. Mithoriya, ASI (PW-5), Suresh Singh, Head Constable (P.W.-6), Komal Singh Jadon, DSP (PW-7) and Irfan Ali, Retd. Head Constable (PW-8). are police officials and Vijay Khare, Reader (PW.-3) is a Government employee. Actually, they have supported the prosecution case in their own way. Now, the point ought to be ruminated is as to whether the testimony of these police officials in connection with the proceeding of prosecution case is trustworthy. Indubitably, the testimony of a witness is not to be doubted or discarded merely because he happens to be a police or Government official, but it is equally well recognized rule of caution that the Court should look for independent corroboration to the testimony of police officials in such type of cases. In Makhan Singh Vs State of Haryana (2015) 12 SCC 247, Hon'ble Apex Court has observed as under :-
"10. For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of official witnesses who made the recovery i.e. H.C.Suraj Mal, PW 2 and Inspector Raghbir Singh,PW 6, and found them sufficiently strengthening the recovery of the possession from the appellant. In our considered view, the manner in which the alleged recovery has been made does not inspire confidence and undue credence has been given to the testimony of official witnesses, who are generally interested in securing the conviction..... Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence..…"
13. The above precedent being adjudicated with reference to Narcotic Drugs and Psychotropic Substances Act, 1985, is also applicable as a guideline in the instant case of Arms Act, 1959. Here, it is also worth to note that the charge against the petitioner/accused in the case at hand, is punishable with the minimum punishment. In this context, the principle laid down by Hon'ble Supreme Court rendered in Ajmer Singh Vs State of Haryana (2010) 3 SCC 746, is also condign to quote here :-
"16......It is a well-settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence....."
14. In the instant case, the offence u/s 25(1-B)(a) of Arms Act, is punishable with the imprisonment for a term which shall not be less than one year and also with fine, as the offence has been said to be committed 29.08.2003. Here, it is apt to unearth that now the minimum punishment for the offence has been increased up to 2 years w.e.f. 14-12-2019. Therefore, looking to the stringent provisions of punishment, the standard of proof should be heavier on the prosecution.
15. In view of the aforesaid ratio, the testimony of these prosecution witnesses has to be scrutinized. Virtually, as per prosecution story only Malsingh, Head Constable (PW-1), Mulayamsingh, Head Constable (PW.-4) and Irfan Ali, Retd. Head Constable (PW-8) have supported the prosecution case regarding seizure. However, these witnesses have deposed that at the time of police raid, accused was standing on the spot with arms. On this, Malsingh, Head Constable (PW-1) stated that police team arrested the petitioner and took him to the police station where pistol and cartridge were seized, whereas Mulayamsingh, ASI (PW.-4) asseverated that the police caught the petitioner on the spot, recovered the pistol, but he has not remembered that who took the pistol from the pocket of the petitioner. The statement of another police witness Irfan Ali, Retd. Head Constable (PW.-8) that the pistol and four live cartridges were seized and returned to the police station in sealed envelop after investigation and also in his cross-examination, he stated that neither there was any seal in Exhibit-P/7 nor inward-dispatch number was there. As such, police witness Malsingh, Head Constable (PW-1) contradicted the statement of Mulayamsingh, ASI (PW.-4) in respect of seizure from the spot.
16. Certainly, such type of contradictions would not have been deemed as material, as long as the case was supported by independent witnesses. In this respect, the following extract of the judgment of Hon'ble High Court rendered in Samrath Madhuria v. State of Madhya Pradesh, 2005(2) MPLJ 11, is relevant to refer here :-
"5...So, the standard for judging the deposition of police officers and any other public man shall also differ and such minor discrepancies might be of greater importance while judging the deposition of police officers which could be ignored in case of other witnesses. Judging from this angle, the testimonies of the prosecution witnesses could not be safely relied…"
17. In backdrop of aforesaid proposition, the aforementioned contradictions evolved between the depositions of police Malsingh, Head Constable (PW-1) and Mulayamsingh, ASI (PW.-4) cannot be ignored, as this case rests upon the testimonies of police officials only.
18. Besides, on a perusal of Ex.P/7, it is disclosed that in seizure memo, Seizure Officer is required to put mark of specimen seal while sealing the recovered material. In this respect, the law laid down by Hon'ble High Court Anil Kerar v. State of M.P. 2010 (II) MPJRSN, 10 is worth referable, wherein it is held as if the specimen seal is not impressed on seizure memo, the seizure of firearm from the possession of the accused would be doubtful. In this context, learned counsel appearing for the petitioner has also placed his reliance upon Raju Dubey v. State of M.P. 1998(1) JLJ 236, wherein it is held that the seized weapon should be sealed and sent to the Magistrate for sanction, and if the weapon is not sealed on the spot, the seizure memo becomes doubtful.
18. No mark of such specimen seal is affixed while sealing the recovered country made pistol and cartridge, therefore, in view of the aforesaid ratio decidendi, it cannot be assumed that the recovered weapons were seized at the time of recovery. Having said that, no specific descriptions of said firearm has been mentioned in the seizure memo (Ex.P/7). Irfan Ali, Retd. Head Constable (PW.-8) himself accepted that he has not mentioned anything regarding specific identification of the said Katta. He has also not mentioned in seizure memo as to whether the barrel of said katta is completely made of iron or some parts are made of wood. It is further submitted that the Komal Singh Jadon, DSP (PW-7) has also conceded in his cross examination that it is true to say that nothing was mentioned in the seizure regarding length and width of the said katta.
19. In Jasbir Singh v. State of Punjab, 1998 LawSuit (SC) 217, it has been held that pistol and cartridge recovered not having any distinctive mark and not sealed after seizure, the identity of weapon and the cartridge produced before the Court were not established by the prosecution, therefore, the conviction can not be sustained. This principle has also been followed by Hon'ble High Court of M.P. in Rajesh Dubey & ors. v. State of Madhya Pradesh, 2012 LawSuit (M.P.) 1235.
21. In bedrock of aforesaid discussions, it appears that the recovery of articles is not established beyond reasonable doubts, as no independent witness has borne out the seizure memo (Ex.P/7) of articles. Having said that, contradictions on material points emerged in the testimonies of two police officials. Moreover, it is also not set up as to whether the said articles were sealed at the time of seizure or not, because no specimen seal has been affixed on due portion of seizure memo (Ex.P/7). The prosecution has also failed to evince whether the articles which was recovered from the possession of petitioner was the same one, as no identification mark or distinctive number has been mentioned on the articles as well as seizure memo Ex. P/7. Under these circumstances, it is quite vivid that the prosecution has failed to prove its case, on the touchstone of 'beyond reasonable doubts' that accused has committed the offence punishable u/s 25(1-B)(a) of Arms Act.
22. In the wake of the aforesaid analysis, the findings of the learned trial Court as well as learned Appellate Court regarding conviction of the petitioner under Section 25(1-B)(A) of Arms Act is perverse and against the propriety, legality and correctness, hence, deserves to be set aside. In the result thereof, the present revision filed by the petitioner is hereby allowed, having set aside the impugned judgment, the petitioner is acquitted from the charges under Section 25(1-B)(A) of Arms Act. The fine amount, if any deposited by the petitioner shall be returned to him accordingly.
23. The petitioner is already on bail. His bail bond would be canceled.
24. The judgment of learned trial Court regarding seized property stands confirmed, if any.
25. A copy of this order be sent to the trial Court concerned for necessary compliance.
26. Pending application, if any, shall be closed.
27. With the aforesaid, the present revision stands disposed off. Certified copy, as per rules.
