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Sahib Singh Vs. State of Punjab [1996] INSC 1138 (13 September 1996)

Mukherjee M.K. (J) Mukherjee M.K. (J) Kurdukar S.P. (J) M.K. Mukherjee, J.

ACT:

HEAD NOTE:

This appeal is directed against the judgment and order dated December 21, 1991 rendered by the Additional Judge, Designated Court, Amritsar in Sessions Case No. 21 of 1991 convicting and sentencing the appellant under Section 25 of the Arms Act, 1959 and Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987.

According to the prosecution case on May 12, 1990 at or about 12.30 P.M. when inspector Gurmit Chand of Chheharata Police Station (P.W. 3) along with Sub Inspector Rattan Lal (P.W. 2) and other police officials were on patrol duty near Bole-di-Bambi they apprehended the appellant on suspicion and on search recovered a revolver with six live cartriges from the bag he was holding in his right hand.

The appellant pleaded not guilty to the above accusation and his defence was that he was falsely implicated at the instance of his neighbour Sewa Singh.

To prove its case, prosecution examined four witnesses of whom Manohar Lal (P.W.1), a clerk in the office of the District Magistrate, Amritsar, proved the sanction accorded for prosecution of the appellant under the Arms Act; P.Ws.2 and 3 spoke about the arrest of the appellant and the recovery of the revolver and the cartridges from him and Sital Singh (P.W.4), an Armorer, claimed to have mechanically tested the revolver and found it in working order. Accepting their evidence the learned Judge recorded the impugned order of conviction and sentence.

It was first contended on behalf of the appellant that since no independent witness was examined by the prosecution to prove the alleged recovery of the arms and ammunitions from the appellant the Designated Court was not justified in convicting him relying solely upon the evidence of the two police officers. It was next contended that since no evidence was led by the prosecution to prove that the offensive articles were packeted and sealed after their seizure the possibility of tampering with them could not be ruled out. It was lastly contended that from the test report of P.W.4 (Ex.PF) it would appear that one Head Constable Baita Singh produced the revolver before him (P.W.4) but neither he was examined nor any other witness to explain how he (the constable) got the revolver from P.W.3.

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 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.

We, therefore, allow this appeal and set aside the conviction and sentence recorded against the appellant. The appellant, who is on bail, is discharged from his bail bonds. Fine, if paid, be refunded to him.

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