Prem Narayan Singh, J
1. This criminal revision under Section 397 & 401 of Cr.P.C. has been filed by the petitioner being disgruntled by the judgment dated 07.11.2019, passed by the learned II Additional Sessions Judge, District Badwani in Cr.A. No.83/2019, affirming the judgment dated 30.07.2019, passed by learned Judicial Magistrate First Class, District Badwani in Criminal Case No.827/2015, whereby the petitioner has been convicted for the offence under Section 25 (1-B)(A) read with Section 3 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 Sulabh Complex, one person who was standing on the spot and caught hold him. On search, two pistols was found from his possession. He showed his inability to produce the license. Accordingly case was registered. After investigation charge-sheet was filed.
3. In order to bring home the charges, the prosecution has examined total 06 witnesses namely Mukesh Chouhan, Assistant Grade-II, Collectrate Office (PW-1), Bilu @ Veeru (PW-2), Rahul Rayakwar, Sub-Inspector (PW-3), Suresh Patidar, Head Constable (PW-4), Mukesh Panwar, Constable (PW-5) and Onkar (PW-6). No defence witness has been adduced by the petitioner in his defence.
4. Learned counsel for the petitioner has relied upon the testimony of witnesses Bilu @ Veeru (PW-2) and Onkar (PW-6) who are independent witnesses and have not supported the prosecution case and have also been declared hostile.
5. It is further contended that the seizure of the pistol on spot, is also doubtful. In the statement of Rahul Rayakwar, Sub-Inspector (PW-3), he has stated in his cross-examination of his statement that when information was received, he was on motorcycle alongwith Head Constable Suresh, but further he stated that witnesses went on the spot by his motorcycle. The statement of Suresh Patidar, Head Constable (PW-4) is also significant, who has stated in para 2 of his cross-examination that Rahul Rayakwar, Sub-Inspector (PW-3) called two witnesses namely Bilu @ Veeru (PW-2) and Onkar (PW-6) to come at Bus Stand but in para 3 of cross-examination himself again stated that Rahul Rayakwar, Sub-Inspector (PW-3) did not call the independent two witnesses namely Bilu @ Veeru (PW-2) and Onkar (PW-6). Further, witness Mukesh Pawar (PW-5) has stated in his statement that it cannot be said how much time old is the article and he could not check the arms by firing. He further stated that any pistol cannot be said pistol without fire. Likewise, he said, the working conditin of the pistol can also not be confirmed without firing with cartridge.
6. The petitioner has preferred this criminal revision on several grounds but during the course of arguments, learned counsel for the petitioner alternatively placed his arguments on the point of sentence only and prays that since the petitioner has already undergone approximately eight months 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 2015 for a period of 09 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 maintaining 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 Court and the Appellate Court 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 two independent witnesses namely Bilu @ Veeru (PW-2) and Onkar (PW-6) have not borne out the prosecution case. Even, having declared them hostile by the prosecution, in reply of leading questions of Public Prosecutor, they have not backed the prosecution story regarding seizure of pistol and its nature from the petitioner. As such, the prosecution case has not been fortified by this independent witnesses.
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 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 two independent witnesses have not supported the prosecution case and it rests only upon the testimonies of police witnesses. It is significant to mention here that all the other prosecution witnesses i.e. Rahul Rayakwar, Sub-Inspector (PW-3), Suresh Patidar, Head Constable (PW-4) and Mukesh Panwar, Constable (PW-5) are police officials and Mukesh Chouhan, Assistant Grade-III (PW-1) is Government employee of Collectorate Office. 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..…"
12. 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 Makhan Singh (supra), 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....."
13. 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 on 28.08.2015. 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.
14. In view of the aforesaid ratio, the testimony of these prosecution witnesses has to be scrutinized. Virtually, as per prosecution story only Rahul Rayakwar, Sub-Inspector (PW-3), Suresh Patidar, Head Constable (PW-4) and Mukesh Panwar, Constable (PW-5) have supported the prosecution case regarding seizure. However, there is major contradiction available in the statements of these witnesses. These witnesses have deposed that at the time of police raid, accused was standing on the spot with arms. On this, Rahul Rayakwar, Sub-Inspector (PW-3) stated that police team arrested the petitioner and searched thereon. Thereafter, pistols were seized where two independent witnesses were available on the spot, whereas Suresh Patidar, Head Constable (PW-4) has asservated in para 2 of his cross-examination that Rahul Rayakwar, Sub-Inspector (PW-3) called two witnesses namely Bilu @ Veeru (PW-2) and Onkar (PW-6) to come at Bus Stand but in para 3 of cross-examination himself again stated that Rahul Rayakwar, Sub-Inspector (PW-3) did not call the independent two witnesses namely Bilu @ Veeru (PW-2) and Onkar (PW-6). As such, police witness Suresh Patidar, Head Constable (PW-4) contradicted the statement of Rahul Rayakwar, Sub-Inspector (PW.-3) in respect of seizure from the spot.
15. Similarly, the statement of another witness Mukesh Pawar, the Armourer is also vital. The Armourer (PW-5) has also conceded in his statement that it cannot be said as to how much old is the said article seized. Further, he stated that he could not check the arms by firing it. He further stated that any pistol cannot be said pistol without fire. Likewise, he said, the working condition of the pistol can also not be confirmed without firing with cartridge.
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 of law, the aforementioned contradictions evolved between the depositions of police Rahul Rayakwar, Sub-Inspector (PW-3) and Suresh Patidar, Head Constable (PW.-4) cannot be ignored, as this case rests only upon the testimonies of police officials.
18. Besides, on a perusal of Ex.P/2, 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.
19. 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/2). Mukesh Pawar, the Armourer (PW-5) himself has not narrated anything regarding specific identification of the said Katta. On the contrary, he has stated that it is correct to say that the seized firearm is not completely in running condition.
20. 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 this Court 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/2) and seizure 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 seized from the petitioner because no independent witness has supported the prosecution case and no specimen seal has been affixed on due portion of seizure memo (Ex.P/2). 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 in jail, if he is not required in any other case, he should be released forthwith.
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.
