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2003 DIGILAW 71 (HP)

State of H. P. v. Halku Ram

2003-04-03

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This appeal is directed against the judgment dated 1.1.1999 passed by the learned Sessions Judge, Mandi whereby the conviction and sentence of the respondent/accused (hereafter referred to as 'the accused') under section 25 (1) (a) of the Arms Act recorded by the Learned Sub-Divisional Judicial Magistrate, Jogindemagar has been set aside and the accused has been acquitted of the charge against him. 2. The facts leading to the presentation of this appeal are as follows. On 18.2.1994 ASI Jashi Ram (PW-6) along with Constable Karam Singh (PW-5) was present in village lapas for inquiry in a complaint. He received a secret information that the accused was in possession of a gun bearing no number and for which the accused had no licence and in the event of immediate raid, the gun could be recovered. PW-6 recorded reasons for his inability of search warrant and formed a raiding party consisting of himself, constable Karam Singh (PW-5) and independent witnesses Lchhu Ram (PW-2) and Mangat Ram (PW-3). He proceeded to the spot, conducted the search of the house of the accused and recovered a muzzle loading gun Ext. P-1 from the upper storey of the house. The gun did not bear any number nor the accused was having any licence for possession of the gun. After getting the requisite sanction from the concerned District Magistrate Ext. P-7/A, the charge-sheet was submitted against the accused for the commission of an offence under section 25 (1) (a) of the Arms Act and a charge was accordingly framed against the accused. 3. To prove the charge against the accused, prosecution examined seven witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the prosecution case as a whole and claimed to be innocent. The accused, however, did not instead any defence evidence. 4. On consideration of the evidence on record, the learned trial Magistrate held the accused guilty of the offence punishable under Section 25 (1) (a) of the Arms Act and accordingly convicted and sentenced him to imprisonment till the rising of the Court and fine of Rs. 1000/-. In default of payment of fine, the accused was to undergo simple imprisonment for two months. 5. 1000/-. In default of payment of fine, the accused was to undergo simple imprisonment for two months. 5. Being aggrieved, he accused preferred an appeal which was heard and decided by the learned Sessions Judge, Mandi who, by the impugned judgment, set aside the conviction and sentence as passed by lie learned trial Magistrate and acquitted the accused. Hence this appeal by lie State. 6. I have heard the learned Additional Advocate General for the e and the Learned counsel for the accused and have also gone through lie records. 7. Be it stated at the very outset that the independent witnesses, i.e. W-2 and PW-3, who were joined in the raiding party have not supported lie prosecution version. The fate of the case, therefore, depends entirely on the evidence of Constable Karam Singh (PW-5) and Asi Jashi Ram (PW-6) 10th official witnesses. 8. There is no rule of law that the testimony of official witnesses should not be believed because they are official witnesses. However, it is a rule of caution that their statements must be read with care and caution and if found trustworthy and confidence inspiring, conviction can be passed on their statements. However, in the event of any suspicion about the version given by them, conviction cannot be based solely on their statements and the Court will have to see for some corroboration which may alley the suspicions which may arise about the truthfulness of the official witnesses. 9. In the case in hand, the statements of PW-5 and PW-6 are highly suspicious and the entire case has been built up on shady circumstances. It is case of the prosecution itself that the aforesaid secret information was received by PW-6 at Lapas and he had constituted the raiding party at Lapas as is evident from the contents of Rooka Ext. PW-6/A on the basis of which FIR. Ext. PW-4/B had been recorded. However, it is further evident from Ext. PW-6/A that this document had been prepared at Kshemal. According to PW-6, the distance between Lapas and Kshamar is two to three kilometres. There is no explanation as to why the 'Rooka' was not drawn up by PW-6 at Lapas where he received the secret information and constituted the raiding party. He was expected to prepare the 'Rooka' immediately op receipt of the information disclosing commission of a cognizable offence. There is no explanation as to why the 'Rooka' was not drawn up by PW-6 at Lapas where he received the secret information and constituted the raiding party. He was expected to prepare the 'Rooka' immediately op receipt of the information disclosing commission of a cognizable offence. This conduct of PW-6 is not explained in any manner and thus raises suspicion not only about the fairness of the investigation but also about the facts as alleged in Ext. PW-6/A. 10. The aforesaid suspicion is further multiplied by the admissions made by PW-5 in his statement who has stated that the written information about possession of a gun without licence had been received at the police station itself. Had such information been received at the police Station, there was no occasion for recording the 'Rooka' at Lapas or Kshamal but the case ought to have been registered at the Police Station on receipt of the said written information and the search there after could be carried out after obtaining a search warrant which, admittedly was not obtained in the case. 11. According to the contents of PW-6/A, the 'Rooka' Ext. PW-6/A was 'being sent' to the Police Station through PW-5. However, it further reveals that PW-5 was not sent to the Police Station along with the 'Rooka' immediately after preparing the 'Rooka' but he was included in the raiding party and was taken to the place of search and the search was allegedly conducted in his presence. It is evident from the perusal of the site plan Ext. PW-1/C prepared by PW-6 that close to the house of the accused are the houses of Jia and Saharu Ram. Just ahead of the court-yard of the houses of the accused and the aforesaid persons, is a patwarkhana. Thus, there are three houses including one patwarkhana in the close vicinity to the house of the accused which was allegedly searched and from where the gun Ext. P-1 was recovered. PW-5 who in the ordinary course was to take 'Rooka' to the Police unambiguously stated that the house of the accused is at a lonely place and has specifically denied that there are three other houses in the dose vicinity of the house of the accused. He has clearly and unambiguously stated that PW-2 and PW-3 were joined in the raiding party when PW-6 and this witness reached village Kshmal whereas according to Ext. He has clearly and unambiguously stated that PW-2 and PW-3 were joined in the raiding party when PW-6 and this witness reached village Kshmal whereas according to Ext. PW-6/A, the raiding party had been constituted at lapas. Further more, according to the Investigating Officer PW-6, such a distance is two to three kilometres. Therefore, in view of the statement of PW-5 Karam Singh, it can safely be inferred that he was not at all at the place of recovery that is why he has given wrong distance between the two villages, has misstated the facts about constitution of raiding party and has denied the existence of other houses in the vicinity of the house allegedly raided by the Police despite the existence of such houses. The existence of the houses as aforesaid and the distance between the two villages being two to three kilometres, has been clearly admitted by PW-6 in his statement. The statement of Karam Singh (PW-5) is, therefore, utterly unreliable. 12. PW-6 in his statement has admitted that a woman was also present on the spot. He admittedly did not try to find out as to who were the other occupants of the allegedly searched house. Having found a woman present in the house, it was all the more necessary for the Investigating officer to find out whether there are other occupants of the house or not. Presuming that the gun was recovered from within the house which was searched, there is no evidence to prove that the house was solely occupied by the accused and the possibility of the gun having been kept inside the house by any other occupant has not ruled out. Therefore, the accused could not be held to be in actual and conscious possession of the gun Ext. P-1. Thus, there is no cogent, reliable, trustworthy and confidence inspiring evidence on the record to prove that the gun Ext. P-1 was in actual and conscious possession of the accused. Therefore, the learned Sessions Judge has correctly arrived at the conclusion that there was not reliable evidence to connect the accused with the commission of the offence. The impugned judgment, therefore, does not call for any interference. 13. As a result, this appeal merits dismissal and is accordingly dismissed.