1. By way of this Criminal Revision Application, challenge is made to the judgment and order passed by the Additional Sessions Judge, Fast Track Court, Deesa, Camp at Deodar, in Criminal Appeal No. 9 of 2004 dated 18.12.2006.
2. Heard Mr. B.N.Patel, learned counsel for the applicant and Mr.K.L.Pandya, learned Additional Public Prosecutor for the State.
3. Mr. B.N.Patel, learned counsel for the appellant has raised the contention that Mr. K.B.Khant, Police Inspector, LCB, was the complainant in this case, and he himself was the Investigating Officer. According to learned counsel for the applicant, apart from the fact that there was no legally acceptable material to record conviction, this lacuna itself is fatal to the prosecution case, and on this ground alone the conviction recorded by the Court below needs to be interfered with. In support of this contention, learned counsel for the applicant has relied on the judgment of the Honourable Supreme Court of India in the case of Megha Singh v. State of Haryana ( AIR 1995 SC 2339), more particularly, para:4 of the said judgment. Learned Additional Public Prosecutor is not in a position to dispute this factual and legal aspect.
4. Having gone through the record and in view of above undisputed factual and legal position, the revision application deserves to be allowed, and other contentions are not required to be gone into. Even on merits, the conviction needs to be interfered, for the reasons recorded hereunder.
5. The facts of the case, in brief, are as under:
5.1 One Mr. K. B. Khant, Police Inspector, LCB, Palanpur, on 11.7.2003 gave complaint, in effect to himself, to the effect that, while investigating an offence, registered with Tharad Police Station, being IIC.R.No. 3082 of 2003 under the Arms Act, the accused Hemjibhai Virabhai Mistry (Suthar), who was with him under police remand, had disclosed that he had, before about 10 years, sold one revolver to Raymalbhai Savabhai Patel, the present applicant, for Rs.3600/. Based on that information, he i.e. Police Inspector Khant, along with panchas went to the field of the applicant and he (the applicant), on being asked, volunteered to produce that revolver from his house and stated that he had bought the said revolver from Hemjibhai Virabhai Mistry. The said revolver is stated to have been recovered like this and that is how offence was registered with Vav Police Station being IIC.R.No. 35 of 2003 for offence under Section 25(1)(A) of the Arms Act. The applicant was named as accused No.1 and said Hemjibhai Mistry was named as accused No.2. The applicant, accused No.1 was shown arrested on 12.7.2003. Accused No:2 was already in the custody of Police Inspector Mr.K.B.Khant in connection with FIR No: 3082 of 2003 registered with Tharad Police Station and said accused No.2 was treated to have been arrested in connection with this offence on 14.07.2003. According to the prosecution case, the case was investigated by the complainant, Police Inspector Mr. Khant and on investigation, according to him, sufficient evidence was collected, in the court of JMFC, Vav, in Criminal Case No: 224 of 2003, charge was framed by Exh.3. Accused pleaded not guilty and they were tried. The complainant and Investigating Officer Shri Khant, PI, LCB, was examined at Exh.24. Said witness supported his version as reflected in the complaint at Exh.26. In the cross examination, he denied the suggestion that since he had asked for money from A1 and on refusal he was falsely implicated.
5.2 The muddamal/ revolver is claimed to have been recovered by panchnama (Exh.10), which was sought to be proved by the Panchas, who did not support the prosecution case.
5.3 Both the accused in their further statements under Section 313 of Cr.P.C. specifically took the plea that Police Inspector Mr. Khant, for extraneous consideration, has falsely implicated them in the offence.
5.4 On conclusion of the trial, Judicial Magistrate First Class, Vav, came to the conclusion that prosecution has been able to prove the charge against A1 but not A2. A2 was acquitted. Conviction was recorded against A1 for offence under Section 25(1)(A) of the Arms Act. After recording conviction against A1, the present applicant, after hearing him, he was sentenced to undergo RI for three years, and was imposed with fine of Rs.4,000/, and in default six months RI. The said judgment and order dated 20.3.2004 was challenged by the applicant in Criminal Appeal No.9 of 2004 before the Sessions Court, Deesa. The Additional Judge, 3rd Fast Track Court, Deesa camp at Deodar, dismissed the appeal on 18.12.2006 and upheld the judgment and order dated 20.3.2004 passed by the Judicial Magistrate First Class. Against this order, the present revision application is filed.
5.5 This Court, while admitting this Criminal Revision Application on 25.01.2007, has suspended the substantive sentence awarded by the court below and that is how the applicant is on bail now.
5.6 Having heard learned counsel for the respective parties, and going through the Record and Proceedings, this Court finds that except the say of one police officer, against whom the allegation of demanding money is made and who has acted as the complainant and Investigating Officer both, there is no legally acceptable material on record to substantiate the say of the prosecution. Some police officials, subordinate to Police Inspector Khant are examined. However, there is no independent witness and the panchas to the recovery of the revolver have not supported the case of the prosecution. The foundation of the present prosecution case is the socalled disclosure made by an accused to Police Inspector Khant while he was on police remand. Even before registering the offence, the recovery is already stated to have been made from A1. Even the court below has recorded that the A1 had specifically agitated that the said PI had called the accused to his Palanpur office, he was asked to give money, which he refused, and therefore, he was falsely implicated. On overall appreciation, the evidence of the complainant/ Investigating Officer does not inspire confidence and it would be unsafe to uphold the conviction solely on the say of this prosecution witness. This is independent of the fact that this witness acting as complainant and investigating officer both, had already vitiated the prosecution case, in the light of the judgement of the Apex Court referred above.
6. In the result, the conviction recorded by the Courts below is set aside and the applicant is acquitted of all the charges levelled against him. Present Criminal Revision Application stands allowed. The judgment and order dated 20.03.2004 passed by learned Judicial Magistrate First Class, Vav in Criminal Case No. 224 of 2003 and the judgment and order dated 18.12.2006 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Deesa at Deodar in Criminal Appeal No.9 of 2004 are hereby quashed and set aside. Bail bond stands cancelled. Rule is made absolute.
amit (PARESH UPADHYAY, J.)