Jitender Saxena And Guddu vs State
1989 Latest Caselaw 299 Del

JUDGMENT

V.B. Bansal, J.

(1) In this appeal Jitender Saxena @ Guddu has challenged his conviction under Sec. 25 of the Arms Act and the sentence of R.I. for three years with a fine of Rs. 10.000.00 or in default further sentence of one year by Shri S.N. Kapur, Addl. Sessions Judge, New Delhi, vide judgment and order dated 21st December, 1988.

(2) The facts in brief relevant for the decision of this appeal are as under: F.I.R.No. 128/87 was recorded at P.S. Mandir Marg at 12.45 A.M. during the night between 3rd and 4th of April 1987 under Sec. 376 read with Sec. 34 Indian Penal Code on the basis of a written statement by Simon Jacobi which she had handed over to S.I. Ran Singh of P.S. Mandir Marg. The investigation of this case was entrusted to S.I. Ran Singh. The complainant had alleged of being raped by two persons and one of them was stated to be Guddu.

(3) During the investigation of his case S.I. Ran Singh was accompanied by other police officials when he received a secret information at 6.00 A.M. on 4.4.1887 that Jitender Singh Guddu wanted by him was seen on Kali Mandir Bangia Saheb Road upon which a raiding party was organized by the Investigating officer in which all the police officials present with him were joined. Jitender Singh @ Guddu was apprehended at about 6.05 A.M. and on his search he was found in possession of a gararidar knife in the right side pocket of his pant. The knife on measurement was found to be 12.6" with a blade of 5.3". Some English writing was found on the knife. A sketch of the knife was prepared which was thereafter converted into a sealed parcel and was seized vide seizure memo. A rukka was sent to P.S. Mandir Marg upon which Fir No. 129 was recorded on 4.4.1987.

(4) The Investigating Officer recorded the statements of the witnesses and Jitender Saxena was arrested in Fir No. 128/87 also. He made a disclosure and thereafter co-accused Man Singh was arrested. Both Jitender Saxena @ Guddu and Man Singh were sent for trial under Sec. 376 read with Sec. 34 Indian Penal Code in Fir 128/87 and a separate challan under Sec. 25 of the Arms Act was filed against Jitender Singh @ Guddu in Fir No 129 of 1987 Both Jitender Singh @ Gudduand Man Singh have been acquitted of the offence under Sec. 376 Indian Penal Code and so it is not necessary to refer to the facts of that case. Jitender Singh pleaded not guilty to the charge under Sec. 25 of the Arms Act and claimed trial.

(5) Both the cases were consolidated. A number of witnesses were examined by the prosecution but Public Witness . Constable Ravinder Pal and Public Witness . 8 S.I. Ran Singh Investigating Officer are the only two material witnesses to prove the offence under Sec. 25 Arms Act. As already referred to the learned trial court found the appellant guilty of the offence who was convicted and awarded sentence as referred to above.

(6) I have beard the learned counsel for the appellant Sh. K.L. Upadhyaya and the learned counsel for the State Sh, R.P. Lao and have also gone carefully through the record of this case.

(7) The learned counsel for the appellant has submitted that there is no independent witness to corroborate the prosecution story and S.I. Bani Singh another witness of the recovery has not been examined by the prosecution and no explanation has been put forward for his non-production. He has further submitted that there are material contradictions in the statements of the two official witnesses who were examined on different dates. He has further submitted that the knife Ext. P1 in fact has been planted on the petitioner who was taken by the Investigating Officer from his house. It is also submitted that the case of the prosecution has been that there was some writing in English on the knife which has, however, been contradicted by the witnesses and so prayer has been made for acquittal of the appellant. The learned counsel appearing for the State has however, submitted that merely because there is no public witness to support the prosecution story cannot be a ground to disbelieve the testimony of the official witnesses and that the statement of the two witnesses inspire confidence and the appellant has rightly been convicted. I have given my thoughtful consideration to these submissions in the light of the evidence on the record. I have, however, no hesitation in coming to the conclusion that the prosecution has not been able to bring home guilt against the appellant beyond a reasonable doubt. My reasons for coming to this conclusion are given as under :

(8) Constable Ravinder Pal (Public Witness 7) has claimed that during the night between 3rd and 4th April 1987 he was present with S.I. Bani Singh, S.I. Ashok and Constable Rakesh and reached behind Baird Road market near Quarter No. 50 where S.I, Ran Singh along with other officials met them. He went on to state that at about 6.00 AM. they reached near Bangla Sweet House where a secret information was received by S.I. Ran Singh about the presence of Jitender near Kali Mandir where they went and noticed Jitender who started running to wards Gurdwara Bangia Saheb who was chased and apprehended. According to him knife was recovered from the right side of his pant and he identified knife Ext. P1 to be the same which was recovered from the possession of the accused. According to him sketch Ext. PW7/B of the knife was prepared which was converted into the parcel and sealed with the seal of 'SS' and seized vide memo Ext. PW7/A.

(9) Investigating Officer S.I. Ran Singh (Public Witness 8 had corroborated the statement of Constable Ravinder Pal with regard to his having apprehended the accused and recovery of knife Ext. P1 which was seized by him. He has also claimed that rukka Ext. PW6/A was sent by him to police station through constable Ravinder Pal upon which Fir No 129/87 was recorded and his having arrested the accused. Apparently, these two witnesses have proved the recovery of gararidas, knife Ext. Pi from Jitender appellant. However, when we read their cross-examination it is crystal clear that their evidence is not sufficient to hold the appellant guilty of the offence beyond a reasonable doubt.

(10) The 6rst question for consideration is with regard to the efforts made by the Investigating Officer to join persons from the public. The case as it was put in court was that S.I. Ran Singh received a secret information at 6.00 A.M. and within five minutes the police party apprehended Jitender Saxena @ Guddu. However while appearing in Court they have claimed that efforts were made to join persons from the public. During cross-examination S.I. Ran Singh has claimed that 3 or 4 persons were noticed going to Mandir and a request was made to them to join the raiding party but they declined. This is certainly an improvement made by the Investigating Officer in his statement who was examined on a date different from the date on which Constable Ravinder Pal was examined.

(11) According to the statement of Constable Ravinder Pal (Public Witness 7) he had taken rukka and seal to the police station while the remaining members of the raiding party left the spot and that he signed his statement in the hospital where it was recorded. He has, however, been contradicted by S.I. Ran Singh (Public Witness 8) who has claimed that constable Ravinder Pal came to the spot where his statement was recorded and has denied that the statement of constable was recorded by him in the hospital or that he had obtained his signatures on it.

(12) According to Constable Ravinder Pal (Public Witness 7) the knife was converted into a parcel and sealed with the seal of 'SS' which was given to him had taken the same to the police station where it was deposited. The Investigating Officer, however, did not know if the seal was deposited by the constable in the malkhana of the police station or where it was, in fact deposited. He, in fact, has claimed that constable Ravinder Pal returned the seal to S.I. Sukesh Singh. He has, however, not been corroborated by constable Ravinder Pal.

(13) The case of the prosecution had been that there was some English writing on the blade of the gararidar knife recovered from the accused-appellant and it has clearly been mentioned in the rukka Ext. PW6/A which forms the basis of F.I.R. This part of the prosecution story, however stands contradicted from the statement of both the witnesses who have made a categorical statement that there is no writing in English on the knife Ext. P1.

(14) It is also pertinent to note that none of the witnesses examined by the prosecution has claimed that the sealed parcel of the knife was deposited with the Moharrar Malkhana being tampered with by anyone without Even the Moharrar Malkhana has not been examined to prove that no one tampered with the sealed parcel containing the knife alleged to have been recovered from Jitender Saxena @ Guddu. The fact is that no writing in English on the knife Ext .P1 was in existence. Some writing in English on the knife recovered from Jitender Saxena @ Guddu makes it abundantly clear that knife Ext. P1 produced in court may not be the one alleged to have been recovered from him.

(15) As already referred to the two witnesses were examined on different dates and inspite of it there have been aforesaid material discrepancies and considering all the facts I am of the view that the appellant is entitled to the benefit of doubt.

(16) As a result the appeal is accepted. Conviction and sentences of the appellant are set aside He shall be released forthwith if not required in any other case.