IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.362/2017 c/w CRIMINAL REVISION PETITION No.490/2017 IN CRIMINAL REVISION PETITION No.362/2017: BETWEEN:
Raghuraj Singh Bagel S/o Vijaya Karan Singh Bagel Aged about 32 years Residing at Meehoni House Nimrav Post, Bind District, Madhya Pradesh, Now R/at Beeramma Compound Laxmi Temple Road Basavanagudi, Lower Car Street Mangaluru-575 001, D.K.District.
(By Sri B.Lethif, Advocate) AND:
State of Karnataka by Mangaluru Rural Police Station, D.K.District, Mangaluru, Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment and order dated 18.01.2017 passed by the Principal Sessions Judge, Dakshina Kannada, Mangaluru, in Criminal Appeal No.201/2015 and judgment and order dated 13.07.2015 passed by the J.M.F.C. (III Court), Mangaluru, D.K., in C.C.No.3421/2011 by allowing this Criminal Revision Petition and acquit the petitioner.
IN CRIMINAL REVISION PETITION No.490/2017: BETWEEN:
Shri Shrikantha S/o B.K.Nagaraja Aged about 31 years R/a D.No.23-3-300, Mallappa Compound, G.V. Road, Marnamikatte, Mangaluru, Dakshina Kannada-575 002.
(By Sri T.H.Avin, Advocate) AND:
State of Karnataka by Mangaluru Rural Police Station, Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) …Petitioner …Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment of conviction and sentence against the petitioner/accused No.2 dated 13.07.2015 passed by the J.M.F.C. (III Court), Mangaluru, D.K., in C.C.No.3421/2011 and the judgment dated 18.01.2017 passed by the Principal Sessions Judge, Dakshina Kannada, Mangaluru, in Criminal Appeal No.195/2015 confirming the judgment conviction and sentence of petitioner/accused No.2 and to acquit the petitioner/accused No.2 for the offence punishable under Section 3 r/w. Section 25 of ARMS Act.
These Criminal Revision Petitions coming on for Admission, this day the Court made the following:-
O R D E R Criminal Revision Petition No.362/2017 has been filed by petitioner-accused No.1, Criminal Revision Petition No.490/2017 has been filed by petitioner-accused No.2 challenging the judgment passed by Principal Sessions Judge, D.K. Mangalure in Criminal Appeal Nos.195/2015 and 201/2015 dated 18.1.2017, whereunder the judgment of J.M.F.C.(III Court), Mangaluru in C.C.No.3421/2011 dated 13.07.2015 was confirmed by dismissing the appeals filed by the petitioners-accused.
2. I have heard the learned counsel appearing for the petitioners-accused and the learned High Court Government Pleader for respondent-State.
3. The brief facts as per the case of the prosecution are that on 19.3.2010 at about 2.30 p.m. the Sub- Inspector of Police was on patrolling duty and when he came near the place of seizure he found two persons moving in a suspicious manner. On seeing the police the accused were tried to run away from the spot and the police surrounded and caught hold of them, apprehended them and when they made a search of accused No.1, they found in possession of one revolver and five live bullets, subsequently accused No.2 was also personally searched and he was found in possession of four live bullets. They were not having any permit or licence and were transporting the same for illegal purpose. On the basis of the complaint a case was registered in Crime No.70/2010 and after investigation charge sheet was filed against accused Nos.1 and 2. The learned Magistrate secured the presence of the accused and after following the procedure and supplying the copies of the charge sheet, the accused were heard and their plea was recorded. They pleaded not guilty and claims to be tried and as such the trial was fixed.
4. In order to prove the case of the prosecution, it has got examined 8 witnesses and got marked 12 documents and 12 material objects. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material. Accused denied the same, thereafter the accused has neither led any defence evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the Court below convicted accused Nos.1 and 2 for the offence punishable under Section 3 r/w 25 of the Arms Act and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo three months simple imprisonment for the said offences and against the said order the accused preferred the appeal. The appellate Court dismissed the appeal by confirming the conviction and sentence of the trial Court.
5. The main grounds urged by the learned counsel for the petitioners jointly are that the complainant himself is the Investigating Officer, he himself investigated the case and filed the charge sheet and as such the said procedure adopted is not in accordance with law. It is his further submission that the informant and the investigator must not be the same person. If the same person investigates, there is possibility of bias or pre-determined conclusion and in order to have a fair trial, the investigation has to be conducted by some other person other than the informant. In order to substantiate their contention they have relied on the decision in the case of Bhagwan Singh Vs. The State of Rajasthan reported in (1976) 1 SCC 15, another decision in the case of State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu Vs. Rajangam reported in (2010) 15 SCC 369, another decision in the case of Govindaraju Alias Govinda Vs. State by Sriramapuram Police Station and Another reported in (2012) 4 SCC 722, another decision in the case of Narsi Vs. State of Haryana reported in (1999) 1 SCC 166, another decision in the case of Jasbir Singh Alias Javri Alias Jabbar Singh Vs. State of Haryana reported in (2015) 5 SCC 762, another decision in the case of Mohan Lal vs. State of Punjab reported in (2018) 17 SCC 627 and another decision of Co-ordinate Bench of this Court in the case of State by Upparpet Police Station Vs. Sampangi reported in Laws (Kar) 2004 page 193.
6. It is the submission of the learned counsel for accused No.2 that the complaint Ex.P6 states that three live bullets were recovered from the possession of accused No.2, but when the charge sheet was filed it has been brought as four live bullets have been recovered from him, another live bullet has been planted to which there is no explaination by the prosecution, that itself clearly goes to show that the entire case has been planted only with an intention to inculcate the accused persons in the said crime. It is his further submission that the said articles were said to have been seized from the possession of the accused and the same were seized in the presence of PWs.1 and 2 by drawing a mahazar as per Ex.P1, but the said recovery from the possession of the accused has not been proved since PWs.1 and 2 have not supported the case of the prosecution. Though other witnesses have deposed with regard to the recovery of the pistol and live cartridge, how it was kept, where it has been kept there is no consistency in the statement of the witnesses. One witness has deposed that it has been kept in the waist, another witness has deposed that the said pistol was kept in the pant, another witness has deposed that it was hooked to the belt. When the same witnesses have identified and searched the accused, when they deposed, then there must be consistency with regard to possession from where the said pistol and live cartridges have been recovered. It is his further submission that though the said complaint was registered stating that 5 live bullets have been recovered from the possession of accused No.1 and 3 live bullets were recovered from the possession of accused No.2, the Chemical Examiner who came to be examined before the Court as PW3 has categorically deposed that the said pistol was not in working condition and even the cartridges have not been examined to ascertain whether they are alive or not, whether the pistol was in a working condition or not.
7. In order to prove the charge under Section 3 of the Arms Act there must be a specific and cogent evidence to come to the conclusion that the said pistol which has been recovered from the possession of the accused is in working condition and the bullets were live bullets. Without establishing the said fact the Court below has erroneously passed the impugned order. It is their further submission that what is the relationship between accused Nos.1 and 2 and in what context they were roaming together has also not been established. In the absence of such material the seizure of the said articles from the possession of the accused and they were found with arms is not justifiable. They further submitted that ignoring the said aspects the Courts below have erroneously come to a wrong conclusion and they wrongly convicted the accused. On these grounds they prayed to allow the petitions and to set side the impugned orders and to acquit the accused.
8. Per contra, the learned High Court Government Pleader vehemently argued and submitted that PWs.1 and 2 have not supported the case of the prosecution, but PWs.4 and 5 are Police Constables who accompanied the informant, they have categorically supported the case of the prosecution and their evidence is corroborated with the evidence of PW.8 the complainant. He further submitted that as per Section 39 of the Arms Act valid sanction has been obtained from the District Magistrate. That itself clearly goes to show that it is not a false case. It is his further submission that the accused persons were found in possession of pistol and live bullets. They have not explained under what circumstances they have come in possession of the said arms. In the absence of any explanation, the only presumption is that they were in possession of the said articles and the trial Court after considering the said facts and circumstances have come to a right conclusion and rightly convicted the accused. On these grounds he prayed to dismiss the petitions.
I have carefully and cautiously gone through the submissions of both the parties.
9. The first and foremost contention which has been taken up by the learned counsel appearing for the petitioners-accused is that the prosecution has got examined the Assistant Director of FSL. In his evidence he has deposed that the said pistol is not in a working condition and the cartridges were not examined whether they are live and as per the charge framed by the Court below. It has specifically framed the charge that the prosecution has proved that accused Nos.1 and 2 were found in possession of four live bullets without holding any legal documents and they were transporting the same illegally and thereafter committed the alleged offence.
10. I have carefully and cautiously gone through Section 3 of the Arms Act which reads as under:
3. Licence for acquisition and possession of firearms and ammunition.-
(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with provisions of the this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognized by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section.
11. On close reading of the said Section nowhere it contemplates that the person must be carrying a live pistol or the live cartridges or bullets. What has been enumerated under Section 3 of the Arms Act is no person shall acquire, have in his possession, or carry any firearms or ammunition without there being any licence in accordance with the provisions of the said Act. Under the said facts and circumstances the contention of the learned counsel for the petitioners that the prosecution has failed to prove that the said pistol was in working condition and the bullets were live bullets, does not have any force.
12. The second contention of the learned counsel for petitioner-accused No.2 is that as per the contents of the complaint Ex.P6, three live bullets have been recovered and subsequently when the charge sheet has been filed it has been found that four live bullets have been recovered from the possession of accused No.2. that itself creates a doubt in the case of the prosecution. I have carefully and cautiously gone through the contents of the complaint Ex.P6. In his complaint he has specifically stated that from the possession of accused No.2 Shrikantha, from the pant pocket three live bullets were found and the same have been recovered. But at the time of recovery, the recovery mahazar Ex.P1 says that from the right side pant pocket of accused No.2, four live bullets have been recovered and same have been seized by drawing a mahazar as per Ex.P1. Even as could be seen from the evidence of PW4- the Police Constable he has deposed that from the right side pant pocket of accused No.2, four live bullets have been found and the same have been seized by drawing a mahazar as per Ex.P1. and in their evidence they have deposed that from the place, where the said articles have been seized, there were shops and residential houses and they have not secured any local persons from that area. In the evidence of PW4 he has deposed that when the personal search of accused No.1 was done, a revolver was found hooked to the belt and there they found five live cartridges. PW5 is another Constable who appointed the Investigating Officer. He has also reiterated the evidence of PW4. But during the course of cross-examination he has deposed that the punch witnesses have been called by PSI over the phone and the said phone number was there with the police and the said punch witnesses were known to the Police Inspector. He has further deposed in his cross-examination that prior to making the personal search of the accused, PSI have not made any personal search and without any search they have only conducted the search over the body of the accused and the said PSI himself prepared the mahazar and the seizure mahazar was drawn and apart from the panch witnesses, so many other persons were also gathered.
13. On going through the evidence of PW8, he has deposed that accused No.1 has affixed the gun in the waist of the pant pocket and they have also seized five live bullets and from the right side pant pocket of accused No.2 four live bullets have been seized. During the course of cross-examination he has deposed that the panch witnesses were available at the place of residence and they have not made the personal search before searching of the accused and further suggestions have been denied.
14. On going through the evidence of PWs.4, 5 and 8 there is no consistency with regard to the place where the revolver was kept by accused No.1 and the revolver has been seized. At one stretch in the complaint they have said three live bullets have been seized from the possession of accused No.2 and in the seizure mahazar Ex.P1 they have seized four live bullets and subsequently in the evidence it has been consistently said that four live bullets have been recovered. That itself creates a doubt in the case of the prosecution, as to whether three live bullets have been recovered or four live bullets have been recovered from the possession of accused No.2 as stated in Ex.P1. There is no consistency in this behalf. Even as could be seen from the evidence there was no consistency in the evidence of PWs.4, 5 and 8 though all the witnesses were present at the place of incident. All these witnesses are Police Officials. I am conscious of the fact that merely because they are police officials their evidence cannot be discarded but when there is no consistency in the complaint and evidence then it creates a doubt in the case of the prosecution.
15. Be that as it may. PW3 the Assistant Director of FSL came to be examined before the Court. In his evidence he has clearly stated that he has examined the revolver and he has given his opinion as per Ex.P2. During the course of cross-examination he has deposed that the revolver was not in a working condition and the said revolver requires minor repairs and with minor repairs it can be used, whether the said bullets which have been seized are live bullets or not., he as deposed that since revolver was not in working condition he cannot give his opinion. When there is no specific evidence produced by the prosecution to establish that the said pistol which has been seized from the possession of accused No.1 was in working condition and they were in possession of the said fire arm, without there being any permit or the licence. The said section uses the word the possession of firearm or ammunition. That itself clearly goes to show that said arms must be in a working condition and the said bullets which have been seized must be live bullets. If the intent of the legislature if it is seen it want to prevent a person from holding the fire arms for illegal purpose. Then under such circumstances the said provision of law is going to be attracted. Without there being any proof of the said fact the Court below has come to the conclusion that the accused persons have committed the offence as contemplated under Section 3 of the Arms Act. Under Section 25 of the Arms Act it clearly goes to show that whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of Section 3 shall liable to be punished. In that light also the trial Court has not applied its mind while coming to the said conclusion.
16. Though there were many contradictions, inconsistencies and discrepancies in the evidence of PWs.4, 5 and 8, the said fact has been ignored and has come to a wrong conclusion. When the independent witnesses PWs.2 and 3 have not supported the case of the prosecution and the seizure has not been properly proved, then under such circumstances, the trial Court ought not to have convicted the accused. Though the trial Court has relied upon the decision of the Hon’ble Apex Court in the case of Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarath reported in 2011 (3) SCC (Cri) 102, when the Investigating Officer has witnessed and the Investigating Officer deposed his evidence can also be accepted if the testimony of the Investigating Officer is not suffered from any infirmity or doubt. I am not having any difference of opinion with regard to said ratio laid down in the said decision that the testimony of the Investigating Officer alone can be relied upon for the purpose of conviction if it is not suffering from any infirmity. Taking into consideration the above said facts and circumstances the case of the prosecution itself creates a doubt. When the complaint itself says that three live bullets have been recovered from the possession of accused No.2 and four live bullets have been seized and subsequently the witnesses have also stated four live bullets, then under such circumstances without any proper explanation the investigation is suffering with infirmity and no local witnesses have been examined by the complaint while sizing the articles. In that light, the seizure of the said articles from the possession of accused Nos.1 and 2 also cannot be acceptable. In that light the prosecution has utterly failed to prove the case.
17. Though the learned counsel for the accused have contended the fact that the informant and investigator must not be the same person, there is a possibility of bias or pre-determination conviction has to be excluded at that time. I have gone through the above said decision of the Hon’ble Apex Court, but now the said issue has been referred to the larger Bench in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) and the same is pending before the Larger Bench. Keeping in view the said fact, I am not inclined to answer this issue when other evidence is not sufficient to bring home to guilt of the accuse. On the other hand the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and the said fact of seizure from the possession of the accused has not been clearly established. Then under such circumstances, the benefit of doubt must go to the accused.
18. From reading of Section 3 of the Arms Act clearly goes to show that “have in possession” has to be clearly established to attract the provisions of Section 3 of the Arms Act. When there is no cogent and acceptable evidence to prove the possession exactly from the accused and no independent witnesses have supported, under such circumstances the benefit of doubt would go to the accused.
19. Taking into consideration the said facts and circumstances, Criminal Revision Petitions are allowed and the judgments passed by Principal District Judge, D.K. Mangaluru in Criminal Appeal No.195/2015 and 201/2015 dated 18.1.2017 are set aside and petitioners- accused are acquitted of the charges for the offences punishable under Section 3 r/w Section 25 of the Arms Act.
If the accused persons have deposited the fine amount, the trial Court is directed to refund the same to accused Nos.1 and 2 on proper identification and acknowledgement.
Bail bonds executed by accused and surety stand cancelled.
Sd/- JUDGE *AP/-