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2016 DIGILAW 1055 (GAU)

Sarat Das S/o Late Hiteswar Das v. State of Assam

2016-11-25

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER (ORAL) The accused petitioner stood convicted of offence u/s 25(1)(a) of the Arms Act and sentenced to R.I. for 3 years by the learned CJM, in G.R. Case No. 629/1995 vide his judgment dated 27.09.2004. The judgment of the trial court was affirmed by the learned Sessions Judge, Darrang, Mangaldoi, vide judgment dated 29.11.2005 in Crl. A. No. 34(D-4)/2004. 2. Aggrieved by the judgment of the appellate court, the accused petitioner has filed this revision for setting aside the judgment of conviction. 3. Heard Mr. M. Khataniar, learned counsel appearing for the revision petitioner and also heard Mr. N. K. Kalita, learned Addl. PP, Assam. 4. The case projected by the prosecution in brief is that on the morning of 22.10.1995, PW 2 Ramakanta Nath, I/C, Dimakuchi Police Out Post along with his staff conducted search in the house premises of the accused petitioner situated at village Rajgarh and recovered one SBBL gun from his house. The gun was accordingly seized and sent to the armarour for examination. The armarour Bokul Hazarika examined the arm and submitted his report Exbt. 3 certifying that the gun was in serviceable condition. On completion of investigation and after obtaining necessary sanction from the competent authority charge sheet was submitted against the accused petitioner u/s 25 (1) (a) of the Arms Act. 5. During the trial prosecution examined 5 witnesses including the IO and the armarour who examined the arm and ammunitions. 6. Mr. Khataniar, learned counsel for the accused petitioner submits that no independent witness was present at the time of seizure of the arms and as a consequence it cannot be said with certainty that the arm and ammunitions were recovered from the possession of the accused. His next contention is that the police officer PW 2 who conducted the search and allegedly recovered the gun himself filed the FIR and conducted the investigation of the case and as such, implicit reliance cannot be placed in his evidence, he being a highly interested witness eager to secure conviction of the accused. Relying on the decision of the Apex Court in Megha Singh vs State of Haryana reported in (1996) 11 SCC 709 , Mr. Khataniar submits to project that investigation by the very police officer who lodged the FIR is not conducive to fair and impartial investigation. Relying on the decision of the Apex Court in Megha Singh vs State of Haryana reported in (1996) 11 SCC 709 , Mr. Khataniar submits to project that investigation by the very police officer who lodged the FIR is not conducive to fair and impartial investigation. In the aforesaid case the Apex court observed as follows:-- “It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 CrPC. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.” 7. Mr. Khataniar submits that on the basis of the evidence of PW2 who himself conducted search and filed the complaint and to some extent conducted investigation of the case it cannot be held that the investigation of the case was impartial and as such recovery of the gun cannot be attributed to the accused person on his evidence. 8. As regards non examination of independent witness Mr. Khataniar also relied on the decision of this Court in the case of Md Mainul Hoque vs State of Assam reported in 2012 STPL 16934 Gauhati. In the aforesaid case the court observed as follows:-- “13. The law requires that before conducting a search the concerned police officer is bound to call upon some independent respectable people of the locality to witness the search. It may be dispensed with in case independent person is not available in a given case. In such a situation, if the police conducts the search, it cannot be disbelieved simply on the ground that no independent and respectable witness was examined by the prosecution. Here is a case where the search was made in a village and it was possible to call and have the presence of independent and respectable persons of the village. The learned courts below put overemphasis and reliance on the evidence of the village VDP Secretary (PW1), who was not an independent witness in real sense as he was a party to the raid and search by police. The learned courts below put overemphasis and reliance on the evidence of the village VDP Secretary (PW1), who was not an independent witness in real sense as he was a party to the raid and search by police. In this regard reference may be made to the decision of the Apex Court in Sahib Singh -Vs.- State of Punjab, reported in AIR 1997 SC 2417 , wherein it has been observed and held in paragraph 7 as reproduced below- “Having gone through the record we find much substance in each of the above contentions. 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 the weight of evidence of the Police Officer, though not its admissibility. We next find from the record that the arms and ammunitions allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh V. State of Punjab, 1995 Supp (3) SCC 217 this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by P.W. 3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.” 9. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.” 9. In the instant case also it is found that all the witnesses examined by the prosecution are police officials and no attempt was even made to secure the presence of independent witness. It is not the case of prosecution that independent witnesses were not available in the village and it was not possible to secure their presence, rather it appears from the evidence of PW 2 that independent witness had shown the house of the accused to the police party and if that be the case the persons who had allegedly shown the house should have been examined as a witness by the prosecution but that has not been done which obviously affect the weight of the evidence of the police personals. That apart, the gun was not recovered from the house of the accused and it was allegedly recovered from the outhouse (Tongi House) which was constructed for the purpose of guarding the sugar cane cultivation to drive away the wild elephant. It is not the case of the prosecution that accused petitioner was the absolute owner of the said house rather it appears that some other persons were also in occupation of the house and accused petitioner was allegedly present at the time of alleged recovery of the gun and for his mere presence at the house, possession cannot be attributed to him without substantial corroboration to prove that he was in conscious possession of the gun. 10. The third contention of Mr. Khataniar is that the sanction for prosecution of the accused was not produced and proved during the trial of the case and consequently the entire trial got vitiated. In the instant case from the evidence it is found that the purported sanction issued by the sanctioning authority was not tendered in evidence by the prosecution and the same has not been proved. Depreciating the practice this court in Madhusudan Harijan vs State of Assam reported in 2001 3 GLR 452. In the instant case from the evidence it is found that the purported sanction issued by the sanctioning authority was not tendered in evidence by the prosecution and the same has not been proved. Depreciating the practice this court in Madhusudan Harijan vs State of Assam reported in 2001 3 GLR 452. Observed that the accused has a right to challenge the legality and validity of the sanction accorded and he is entitled to cross examine the prosecution witness on the point, when the document according sanction is not tendered in evidence before the trial court nor brought to the notice of the accused affording him opportunity to cross examine the prosecution witness, taking into note of the sanction lying in the connected file is against the principles of criminal jurisprudence. 11. In the instant case also although the purported sanction is with the record, it was neither tendered in evidence nor brought to the notice of the accused and consequently the purported sanction found with the record cannot be held to be a valid sanction in the eye of law. 12. For the reasons aforesaid and considering the materials in its entirety, I hold that the prosecution apart from committing serious lapses, miserably failed to establish the case against the accused petitioner and consequently the revision filed by him is allowed. He is acquitted and set at liberty forthwith. Bail bond stands discharged. 13. The seized gun be confiscated in favour of the State. 14. Return the Lower Court Record.