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Andhra High Court · body

2022 DIGILAW 1300 (AP)

Cherive Munaswamy v. State Rep by P. P.

2022-11-16

A.V.RAVINDRA BABU

body2022
ORDER : 1. This is a Criminal Revision Case is filed on behalf of the petitioner, who was the appellant, questioning the judgment, dated 08.08.2008 in Criminal Appeal No. 71 of 2006, on the file of the III Additional Sessions Judge, Tirupati, where under the learned III Additional Sessions Judge, Tirupati, confirmed the conviction and sentence imposed against the petitioner in C.C. No. 227 of 2003, on the file of the Judicial Magistrate of First Class, Srikalahasthi, dated 22.03.2006. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience. 3. The case of the prosecution in brief according to the charge sheet filed by the State, represented by the Sub-Inspector of Police, K.V.B. Puram Police Station, is as follows: On 22.09.2002 at about 1-00 P.M. the Sub-Inspector of Police and staff of K.V.B. Puram Police Station, were conducting combing operation against the naxlities movement towards east side on forest area, near Brahmanalpalli Harijanawada. While so, at about 4-00 P.M. the Sub-Inspector of Police and staff heard fire arm firing sound and then they searched the area and found the accused in possession of S.B.M.L. Gun. The Sub-Inspector of Police under the cover of police proceedings, seized the said gun and arrested the accused and registered Crime No. 41 of 2002 under Section 25 (1B)(a) of Arms Act and investigated into. During investigation, he forwarded the accused to the concerned Court for remand. On 07.10.2002 the un-licensed S.B.M.L. Gun was sent to F.S.L. Hyderabad, for examination through Additional Munsif Magistrate, Srikalahasthi. The Assistant Director, Forensic Science Laboratory, Hyderabad, examined the same and opined that Item No. 1 is a country made S.B.M.L. Gun and it is working condition and it comes under the purview of the Arms Act. On 02.06.2003, the Collector and District Magistrate, Chittoor, issued sanction order to prosecute the accused. After completion of investigation, charge-sheet is filed. 4. The learned Judicial Magistrate of First Class, Srikalahasthi, took cognizance under Section 25(1B)(a) of Arms Act, against the accused and on appearance of the accused and after complying the formalities as required under Section 207 of Code of Criminal Procedure (“Cr.P.C.” for short), examined him under Section 239 Cr.P.C. for which he denied the offence. 4. The learned Judicial Magistrate of First Class, Srikalahasthi, took cognizance under Section 25(1B)(a) of Arms Act, against the accused and on appearance of the accused and after complying the formalities as required under Section 207 of Code of Criminal Procedure (“Cr.P.C.” for short), examined him under Section 239 Cr.P.C. for which he denied the offence. Then, a charge under Section 25(1B)(a) of Arms Act was framed against the accused and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried. The prosecution during the course of trial, got examined PWs. 1 to 6 and got marked Exs.P.1 to P.4 and M.O.1. After the closure of evidence of the prosecution, accused was examined under Section 313 Cr.P.C. with regard to the incriminating circumstances in the evidence adduced by the prosecution. He denied the incriminating circumstances and reported no defence evidence. 5. The learned Judicial Magistrate of First Class, Srikalahasthi, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the charge under Section 25(1B)(a) of Arms Act and convicted him under Section 248(2) Cr.P.C. and after questioning him about the quantum of sentence, imposed simple imprisonment for a period of one year and to pay a fine of Rs. 100/- in default to suffer simple imprisonment three months. Aggrieved by the said judgment of the trial Court, the present Revision Petitioner filed Criminal Appeal No. 71 of 2006 before the III Additional Sessions Judge, Tiurpati and the learned III Additional Sessions Judge, Tirupati, by virtue of the judgment, dated 08.08.2008, dismissed the same confirming the judgment of the trial Court in C.C. No. 227 of 2003, dated 22.03.2006. As against the judgment of the appellate Court, the unsuccessful appellant therein filed the present Revision Case challenging the same. 6. Now, in deciding the present Revision Case, the point that arises for consideration is whether the judgment, dated 08.08.2008 in Criminal Appeal No. 71 of 2006, on the file of the III Additional Sessions Judge, Tirupati, suffers with any irregularity and illegality and whether there are any grounds to interfere with the same? Point: 7. 6. Now, in deciding the present Revision Case, the point that arises for consideration is whether the judgment, dated 08.08.2008 in Criminal Appeal No. 71 of 2006, on the file of the III Additional Sessions Judge, Tirupati, suffers with any irregularity and illegality and whether there are any grounds to interfere with the same? Point: 7. The Advocate by name Sri J. Theja Saai, representing Sri K. Ramamohan, learned counsel for the petitioner, would contend that the Courts below delivered the judgments contrary to law, weight of evidence and probabilities of the case and failed to look into the fact that the investigating officer did not secure the independent witnesses, though the offence took place in the busy locality. The Courts below failed to appreciate that there was no credible and acceptable evidence to prove the guilt of the accused as the material witnesses turned hostile. There is no independent witnesses in support of the evidence of PWs. 1 to 6. The investigating officer simply filed a charge sheet without obtaining the finger prints on the M.O.1 to implicate the petitioner. 8. He would rely upon the judgments: (1) State of Himachal Pradesh vs. Trilok Chand and Others, AIR 2018 SC 609 (2) Vijay Pandey vs. State of Uttar Pradesh, AIR 2019 SC 3569 (3) Ramakant Rai vs. Madan Rai and Others, AIR 2004 SC 77 (4) Rafiq Ahmed vs. State of U.P. AIR 2011 SC 3114 (5) Avtar Singh and Others vs. State of Punjab, AIR 2002 SC 3343 (6) State of Punjab vs. Hari Singh and Others, AIR 2009 SC 1966 (7) Megha Singh vs. State of Haryana, AIR 1995 SC 2339 (8) Mukesh Singh vs. State (Narcotic Branch of Delhi), AIR 2020 SC 4794 (9) Gunwantlal vs. State of Madhya Pradesh, AIR 1972 SC 1756 Contended that the judgment of appellate Court confirming the judgment of the trial Court is not in accordance with the established principal of law, as such, the Revision Case is liable to be allowed. 9. 9. Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, seeks to support the judgment of the trial Court as well as appellate Court on the ground that the recovery was effected in a forest area where it was not possible to secure any independent witnesses and the trial Court as well as appellate Court recorded cogent reasons in recording conviction and the judgments cited by the petitioner have nothing to do in the case on hand, as such, the Revision Case is liable to be dismissed. 10. In the light of the above, now this Court has to see whether the prosecution before the trial Court was able to prove that on 22.09.2002 the police party seized un-licensed S.B.M.L. gun from the possession of the accused in the manner as alleged by the prosecution. 11. In order to prove the guilt against the accused, the prosecution examined PWs. 1 to 6. PW-1 is the then Sub-Inspector of Police, K.V.B. Puram Police Station, PW-2 is the then Head Constable, K.V.B. Puram Police Station, PW-3 is the then Police Constable, K.V.B. Puram Police Station, PW-4 is the then Head Constable, K.V.B. Puram Police Station, PW-5 is the then Assistant Sub-Inspector of Police, K.V.B. Puram Police Station, who received the prosecution sanction order against the accused and PW-6 is the then Sub-Inspector of Police, K.V.B. Puram Police Station, who filed the charge sheet. 12. Turning to the testimony of PW-1 on 22.09.2002 as per the instructions of the Superintendent of Police, Chittoor, he along with staff i.e. LWs. 2 to 4 conducted combing operations at Thummagunta Reserve Forest against Naxalite movement. They heard big fire arm sound. They searched the area. After 10 minutes they found the accused, who was trying to escape towards eastern side of the forest area. They caught hold of the accused along with fire weapon. He was in possession of S.B.M.L. Gun. He confessed that he purchased it from Tamilnadu without having any license. As the scene of offence is a forest area, he did not try for mahazar witnesses. So, he arrested the accused and seized S.B.M.L. Gun under the cover of police proceedings. On his dictation, Head Constable drafted the same. Ex.P.1 is the police proceedings. He confessed that he purchased it from Tamilnadu without having any license. As the scene of offence is a forest area, he did not try for mahazar witnesses. So, he arrested the accused and seized S.B.M.L. Gun under the cover of police proceedings. On his dictation, Head Constable drafted the same. Ex.P.1 is the police proceedings. He returned to the station along with the accused and seized gun and registered a case against the accused in Crime No. 41 of 2002 under Section 25(1B)(a) of Indian Arms Act and issued F.I.R. Ex.P.2 is F.I.R. On the next day, he sent the accused for remand. He forwarded seized gun to F.S.L. for expert report. On 22.02.2003 he received F.S.L. Report. Expert opined that the gun is country made S.B.M.L. gun. It is in working condition and it comes under the purview of Arms Act. Ex.P.3 is F.S.L. Report. On 24.02.2003 he sent a requisition to the District Collector through the Superintendent of Police by seeking sanction order to prosecute the accused. The remaining investigation was done by his successor. 13. PW-2, the then Head Constable, who deposed in support of the case of the prosecution and the evidence of PW-2 in so far as their conducting combing operations, hearing sound of fire arm, searching the area and noticing the accused, who was trying to ran away and his interrogation, etc., comes in corroboration with the evidence of PW-1. He testified further that he drafted the police proceedings on the dictation of PW-1. He further spoken that they arrested the accused and brought to the police station. M.O.1 is the S.B.M.L. Gun seized by PW-1. 14. PW-3, the then Constable, who deposed in support of the evidence of PWs. 1 and 2 and the evidence of PW-3 is also similar as that of the evidence of PW-1. He testified that he signed Ex.P.1. 15. The evidence of PW-4 means that he participated in the combing operations in the forest, near Brahmanapalli. They heard a sound of firing a gun, proceeded to some distance and found the accused is in possession of fire arm. The evidence of PW-5 is that he received prosecution sanction order against the accused and handed over to the Sub-Inspector of Police. The evidence of PW-6 is that he received prosecution orders from the Collector, Chittoor. Ex.P.4 is the proceedings of the District Collector, Chittoor and he filed charge-sheet. The evidence of PW-5 is that he received prosecution sanction order against the accused and handed over to the Sub-Inspector of Police. The evidence of PW-6 is that he received prosecution orders from the Collector, Chittoor. Ex.P.4 is the proceedings of the District Collector, Chittoor and he filed charge-sheet. 16. Now I would like to deal with the contention raised by the Revision Petitioner to challenge the judgment of the trial Court. As seen from Ex.P.1, the police proceedings, the place of offence is said to be located in Brahmanapalli Reserve Forest, which is far away from Brahmanapalli Harijanawada. The time of offence was at 4-00 P.M. It reveals that the police party were conducting combing operations, as such, they heard firing noise. Then, they searched the near and found a person, who was trying to abscond with S.B.M.L. Gun and then police interrogated him, who revealed his identity as that of the accused and that he had no license to possess it and he purchased the fire arm for the purpose of hunting of wild animals. It further discloses that as the area was a forest area, where no mediators were available, the entire seizure and arrest of the accused was done under the cover of police proceedings. 17. Now turning to the cross examination part of PW-1, they went to Rangaiahgunta village from his police station by a tractor. They made a G.D. entry about conducting combing operations against the naxalite movement. Forest area is located at a distance of 4 to 5 Kms. from Rangaiahgunta village. They heard fire arm sound from a distance of 50 yards approximately. The villages of Harijanawada Brahmanapalli are situated at a distance of 2 to 3 Kms., from the scene of offence. They took half an hour to complete the police proceedings. He denied that accused is not concerned with the offence and he implicated falsely. He did not obtain the finger prints of the accused on the gun. 18. Turning to the testimony of PW-2 during cross examination, he deposed that they boarded a bus up to Rajulakandriga and then they boarded a tractor and after that they went into the forest by walk. Police made a G.D. entry as regards the combing operations. They reached at Brahmanapalli and after that they heard sound of gun fire at a distance of half kilometer. Police made a G.D. entry as regards the combing operations. They reached at Brahmanapalli and after that they heard sound of gun fire at a distance of half kilometer. The distance from Brahmanapalli and to the scene of offence is 2 Kms. He denied that they never visited the scene of offence. 19. Coming to the cross examination part of PW-3, the distance from him and the sound of firing is about 100 yards. He denied that they never visited the scene of offence. PW-4 deposed in cross examination that the distance between the arrest of the accused and hearing of sound is one furlong. The accused by leaving the gun, tried to run away. He denied that he did not visit the scene of offence. 20. What is the evident from the answers spoken by PWs. 1 to 4 during cross examination is that the place where the accused was located and the place where the police party heard the fire arm sounds is about 50 to 100 yards or one furlong. As regards the mode of transport to the forest area, there was consistency between the evidence of PWs. 1 and 2, who deposed that they boarded a tractor and reached to the area. There are no discrepancies whatsoever in the evidence of PWs. 1 to 4. The facts and circumstances are not such that whether there was any possibility for the police party to search for mediators. When the place of offence was located in a forest area and virtually when there was no possibility for the police party to bring independent witnesses, the contention of the Revision Petitioner that the police party did not secure the independent witnesses, deserves no merits. 21. Apart from this, the contention of the Revision Petitioner is also that material witnesses turned hostile to the case of the prosecution. This contention of the Revision Petitioner is totally baseless. The Revision Petitioner canvassed in the grounds of revision as if the Courts below convicted the accused, though the material witnesses turned hostile to the case of the prosecution. But, in fact, all the witnesses fully supported the case of the prosecution. PWs. 1 to 4, who participated in the raid, never turned hostile to the case of the prosecution. On close scrutiny of the evidence of PWs. 1 to 4, this Court has no reason whatsoever to disbelieve their testimony. But, in fact, all the witnesses fully supported the case of the prosecution. PWs. 1 to 4, who participated in the raid, never turned hostile to the case of the prosecution. On close scrutiny of the evidence of PWs. 1 to 4, this Court has no reason whatsoever to disbelieve their testimony. In the facts and circumstances, police party were not expected to make any effort to secure the independent witnesses by leaving the accused at the spot. 22. Having regard to the above, the testimony of PWs. 1 to 4 cannot be disbelieved on the ground that their evidence is not corroborated by any independent source. In other words, a close scrutiny of evidence of PWs. 1 to 4 discloses that their evidence is quietly consistent and it is without any discrepancies whatsoever and it is inspiring confidence in the mind of the Court. The accused has no probable say when the incriminating circumstances were put to him during the examination under Section 313 Cr.P.C. as to how he would be available in the forest area when the police spotted him. His defence is denial simplicitor by saying that police implicated him for statistical purpose, which is not at all convincing. As seen from Ex.P.3, there is a valid sanction to prosecute the accused under the provisions of the Arms Act. In my considered view, the trial Court rightly believed the evidence adduced by the prosecution and the III Additional Sessions Judge, Titupati also rightly appreciated the evidence on record. 23. Now this Court would like to deal with certain citations relied upon by the learned counsel for the Revision Petitioner. The decision in Trilok Chand’s case (supra) dealt with a situation where several discrepancies in the evidence of prosecution witnesses. Here I do not find any discrepancies in the evidence of the prosecution witnesses. Hence, the above said decision is not useful to the case of the Revision Petitioner. 24. Turning to the decision in Vijay Pandey’s case (supra), it is a case arise under the provisions of the Narcotic Drugs and Psychotropic Substances Act. It also dealt with a situation where though laboratory report was obtained, identity of the sample was not conclusively established by the prosecution. Coming to the present case on hand, it is not that the prosecution did not establish the identity of the gun. It also dealt with a situation where though laboratory report was obtained, identity of the sample was not conclusively established by the prosecution. Coming to the present case on hand, it is not that the prosecution did not establish the identity of the gun. The contention of the Revision Petitioner is that the investigating officer did not obtain his finger prints to show that gun was handled by him. This argument of the Revision Petitioner is fallacious for the reason that it is not a case where the police recovered the gun from a open field, in such situation, only if there was any possibility to trace the finger prints, the investigating officer was expected to do. Here is the case that accused is found in possession of M.O.1-gun and he was caught hold red handedly. Hence, the above said decision has nothing to do with the defence of the Revision Petitioner. 25. Coming to the decision in Ramakant Rai’s case (supra), it arose under Section 302 of Indian Penal Code and the judgment of the High Court suffers with inherent improbabilities and incongruities in the conclusions, as such, the judgment of the High Court was reversed. The above said decision has nothing to do with the present case on hand. 26. Coming to the decision in Rafiq Ahmed’s case (supra), it also arose under Section 302 of Indian Penal Code and it has nothing to do with the present case on hand. The learned counsel for the Revision Petitioner while relying upon the same, made a mention in the memo that it is relevant to Section 313 Cr.P.C. with regard to putting incriminating material to the accused specifically. In this case, a look at the examination under Section 313 Cr.P.C. questionnaire put to the accused before the trial Court reveals that distinct and separate questions were put to the accused. Hence, the above said decision is of no use to the Revision Petitioner. 27. Coming to the decision in Avtar Singh’s case (supra), there were discrepancies in the testimony of PW-2 and other witnesses, as such, the evidence was not relied upon. Here, in this case, there is consistency in the evidence of PWs. 1 to 4, as such, it has nothing to do. 28. 27. Coming to the decision in Avtar Singh’s case (supra), there were discrepancies in the testimony of PW-2 and other witnesses, as such, the evidence was not relied upon. Here, in this case, there is consistency in the evidence of PWs. 1 to 4, as such, it has nothing to do. 28. Coming to the decision in Hari Singh’s case (supra), it also arose under the Narcotic Drugs and Psychotropic Substances Act and it is a case where mandatory provisions were not followed. It has nothing to do with the present case on hand. 29. Coming to the decision in Megha Singh’s case (supra), the facts were that the member of the raid party was the complainant and the complainant himself conducted investigation. In the above said case, the Hon’ble Supreme Court held that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation, as such, Court set aside the conviction and sentence. 30. Coming to the decision in Mukesh Singh’s case (supra), this Court has gone through it. In the above said decision, the Hon’ble Supreme Court held that this Court in case of Mohan Lal vs. State of Punjab, (2018) 17 SCC 627 took a view that investigation conducted by a police officer, who himself, is a complainant is vitiated and accused is acquitted. The Hon’ble Supreme Court further held that in case of Mohan Lal (supra) and the above said issue came up for consideration and that subsequently it also came up for consideration in Varinder Kumar vs. State of Himachal Pradesh, (2020) 3 SCC 321 and a three Bench in the case of Mohan Lal (supra), held that the decision of this Court in the case of Mohan Lal (supra) shall be applicable prospectively, as such, matter was referred to larger Bench. 31. This Court would like to make it clear further that in Mukesh Singh’s case (supra), the Hon’ble Supreme Court ultimately observed that: “In a case where the informant himself is the investigator, by that itself cannot be said that investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend on the facts and circumstances of each case. The question of bias or prejudice would depend on the facts and circumstances of each case. Therefore, merely because the informant himself is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of the Court in the case of Mohan Lal (supra) and any other decision taking a contrary view that the informant cannot be the investigator are hereby overruled specifically.” 32. So, in the light of the above decision, the learned counsel for the petitioner now cannot rely upon Megha Sing’s case (supra) or Mohan Lal’s case (supra). So, simply because PW-1 was the author of Ex.P.1-police proceedings and conducted part of investigation, accused cannot claim an acquittal. As this Court pointed out the evidence is consistent and the prosecution has put forth proper reasons for not joining independent witnesses. A perusal of the F.S.L. report discloses that M.O.1 was of fire arm for which the accused had no licence whatsoever to possess. 33. Turning to the decision of Gunwantlal’s case (supra), it is held that conscious possession has to be established to sustain conviction. 34. Here the accused was found red handedly while he was possession of fire arm. The learned counsel for the Revision Petitioner by relying upon as many as 9 citations cannot boost the contention of the Revision Petitioner in any way. In my considered view, the learned Judicial Magistrate of First Class, Srikalahasthi, rightly found the accused guilty of the offence and further the learned III Additional Sessions Judge, Tirupati, rightly appreciated the evidence on record. 35. Learned counsel for the Revision Petitioner would contend alternatively that in the event of confirmation of the judgment of the Courts below, the Court may took into consideration to modify the sentence, as the Revision Petitioner already put forth his version before the trial Court that his wife and children are depending on him and as of now, he has to perform marriage to one son and daughter. 36. Admittedly, it is a case where the accused before the trial Court put forth a version that three children and wife are dependent upon him. The trial Court awarded minimum sentence of one year. 36. Admittedly, it is a case where the accused before the trial Court put forth a version that three children and wife are dependent upon him. The trial Court awarded minimum sentence of one year. As on the date of offence, the offence under Section 25(1B)(a) of Arms Act is punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and the Court may for any adequate and special reasons to be recorded in the judgment may impose a sentence of imprisonment for not less than one year. 37. Subsequently, Section 25(1B)(a) of Arms Act, as regards the punishment was amended vide Amended Act No. 48 of 2019 and now the minimum punishment provided thereto is two years in the place of one year, however, the Court may adequate and special reasons may award imprisonment less than two years. So, as on the date of offence, the offence was punishable with imprisonment which shall not be less than one year which may extend to three years subject to a proviso that if the Court record adequate and special reasons, a lesser punishment than one year can be awarded. 38. As seen from the charge sheet, the prosecution has alleged that the accused was aged about 33 years as on the date of offence. Even according to Ex.P.1, the accused was using the gun for his livelihood by hunting the animals and on that day he fired towards a forest pig and it could escape. There is no dispute now that the children of the accused and his wife are dependent upon him. 39. Having regard to the above and on the strength of the proviso attached to Section 25(1B)(a) of Arms Act, I am of the considered view that it is a fit case to modify the sentence from that of one year to six months, to meet the ends of justice. Since, 2008, this Revision Case is pending. By this time, the accused must have been in the age around 53 years or 54 years. In the light of the above, while dismissing the Criminal Revision Case, it is appropriate to modify the sentence imposed against the Revision Petitioner. 40. Since, 2008, this Revision Case is pending. By this time, the accused must have been in the age around 53 years or 54 years. In the light of the above, while dismissing the Criminal Revision Case, it is appropriate to modify the sentence imposed against the Revision Petitioner. 40. In the result, the Criminal Revision Case is allowed in part modifying the sentence of simple imprisonment as that of six (06) months instead of one year and the judgment in Criminal Appeal No. 1222 of 2008 in other aspects shall stands confirmed. 41. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner/appellant in C.C. No. 227 of 2003, dated 22.03.2006 and to report compliance to this Court. 42. Consequently, miscellaneous applications pending, if any, shall stand closed.