1994 JTR(SC) 1176
1995 1 AICLR 13 ; 1994 3 Crimes(SC) 1015 ; 1995 2 JT 450 ; 1995 2 KLT(SN) 24 ; 1995 2 RCR(Cri) 32 ; 1995 2 RLW(Raj) 69 ; 1994 4 Scale 1044 ; 1994 Supp3 SCC 729 ; 1995 SCC(Cri) 189 ; 1995 1 UJ 9 ; 1995 KHC 442
SUPREME COURT OF INDIA
(BEFORE DR A.S. ANAND AND M.K. MUKHERJEE, JJ.)
RAKESH KUMAR ALIAS SACHDEVA ALIAS DEVA
Versus
STATE (DELHI ADMN.).
Criminal Appeal No. 275 of 1994 {From the Judgment and Order dated 30-11-1993 and 3-12-1993 of the Designated Court in New Delhi in Session Case No. 97 of 1991}, decided on November 23, 1994
Advocates appeared
Sanjay Manchanda and Jana Kalyan Das, Advocates, for the Appellant; S.N. Terdal and Rakesh Upadhyay, Advocates, for the Respondent.
Act
Referred
:ARMS ACT : S.25
CRIMINAL PROCEDURE CODE : S.100(4)
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT : S.5
(A) The appellant was prosecuted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, read with Section 25 of the Arms Act, 1959, for unlawful possession of weapons. The TADA provisions apply to offences involving terrorist or disruptive activities, enabling stringent penalties, while the Arms Act provisions govern the manufacture, sale, and possession of arms and ammunition. The recovery of prohibited arms and live ammunition during a police patrol formed the core incriminating material evidence supporting the charges under both statutes.
(B) Key principles include the admissibility of corroborated eyewitness testimony, the absence of a mandatory requirement to cross-examine all investigating officers when evidence is otherwise untainted, the non-inference from failure to secure public witnesses when efforts were sincere, and the sufficiency of forensic reports and sanction orders to sustain conviction.
Facts of the case:
In the evening of 23-4-1991, a police party on patrol in Palam Village apprehended the appellant near a bus stand with a bag containing eight country-made pistols and thirty-one live cartridges. The accused offered no satisfactory explanation, leading to seizure and forensic examination confirming the weapons were operational and the cartridges live. A charge-sheet was filed under Section 25 of the Arms Act following sanction by the Deputy Commissioner of Police, and the appellant was convicted under Section 5 of TADA.
Findings of Court:
The court found the testimonies of the patrolling officers credible and corroborative, dismissed the appellants claims of false implication, held that non-examination of the investigating officer and public witnesses did not prejudice the defence or vitiate the prosecution case, and affirmed the convictions and sentences.
Issues:
Whether non-examination of the investigating officer and public witnesses at the scene renders the conviction unsustainable or amounts to a denial of fair trial.
Ratio Decidendi:
The court held that the corroborated testimonies of the arresting officers, supported by forensic reports and statutory sanctions, were sufficient to sustain conviction, and the non-examination of certain witnesses neither prejudiced the appellant nor undermined the prosecution case.
Result:
The appeal is dismissed, and the conviction under Section 5 of TADA and Section 25 of the Arms Act is upheld.
(A) The appellant was prosecuted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, read with Section 25 of the Arms Act, 1959, for unlawful possession of weapons. The TADA provisions apply to offences involving terrorist or disruptive activities, enabling stringent penalties, while the Arms Act provisions govern the manufacture, sale, and possession of arms and ammunition. The recovery of prohibited arms and live ammunition during a police patrol formed the core incriminating material evidence supporting the charges under both statutes.
(B) Key principles include the admissibility of corroborated eyewitness testimony, the absence of a mandatory requirement to cross-examine all investigating officers when evidence is otherwise untainted, the non-inference from failure to secure public witnesses when efforts were sincere, and the sufficiency of forensic reports and sanction orders to sustain conviction.
Facts of the case:
In the evening of 23-4-1991, a police party on patrol in Palam Village apprehended the appellant near a bus stand with a bag containing eight country-made pistols and thirty-one live cartridges. The accused offered no satisfactory explanation, leading to seizure and forensic examination confirming the weapons were operational and the cartridges live. A charge-sheet was filed under Section 25 of the Arms Act following sanction by the Deputy Commissioner of Police, and the appellant was convicted under Section 5 of TADA.
Findings of Court:
The court found the testimonies of the patrolling officers credible and corroborative, dismissed the appellants claims of false implication, held that non-examination of the investigating officer and public witnesses did not prejudice the defence or vitiate the prosecution case, and affirmed the convictions and sentences.
Issues:
Whether non-examination of the investigating officer and public witnesses at the scene renders the conviction unsustainable or amounts to a denial of fair trial.
Ratio Decidendi:
The court held that the corroborated testimonies of the arresting officers, supported by forensic reports and statutory sanctions, were sufficient to sustain conviction, and the non-examination of certain witnesses neither prejudiced the appellant nor undermined the prosecution case.
Result:
The appeal is dismissed, and the conviction under Section 5 of TADA and Section 25 of the Arms Act is upheld.
Jana Kalyan Das, Rakesh U.Upadhyay, S.N.TERDAL, Sanjay Manchanda
Judgment
M.K. MUKHERJEE, J.- The appellant was placed on trial before the Designated Court, New Delhi to answer charges under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA for short) and Section 25 of the Arms Act, 1959. On conclusion of trial the learned Court recorded an order of conviction against the appellant in respect of both the charges. For the conviction under Section 5 of TADA the appellant was sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 5000, in default, to suffer rigorous imprisonment for 6 months more but no separate sentence was passed for the other conviction. Hence this appeal.
2. Briefly stated, the prosecution case is that in the evening of 23-4-1991 a police party, while on patrol duty in and around Palam Village, found the appellant standing near the bus stand with a bag in his possession. As his movements aroused suspicion they apprehended him and searched the bag which was found to contain 8 country-made pistols and 31 live cartridges. As the appellant could not give any satisfactory explanation for possession of those arms and ammunition, they were seized under a recovery memo and then packaged and sealed. A first information report was thereafter lodged against the appellant at Dabri Police Station and SI Sube Singh took up investigation of the case. In course of investigation he forwarded the seized arms and ammunition to the Central Forensic Science Laboratory (CFSL) for examination. On completion of investigation and receipt of sanction from the Deputy Commissioner of Police, New Delhi to prosecute the appellant under Section 25 of the Arms Act he submitted charge-sheet against the appellant.
3. The appellant pleaded not guilty to the charges levelled against him and his contention was that he was falsely implicated in the case at the instance of SI Sube Singh.
4. To prove the apprehension of the appellant and recovery of the arms and ammunition from his possession the prosecution relied upon the testimonies of Constable Jagpal Singh (PW 1) and Head Constable Ramesh Kumar (PW 2). Both of them stated that they were members of the police party that was on patrol duty on the date in question. They detailed the manner in which the appellant was apprehended at the bus stand with a bag in his possession and spoke about the recovery of country-made pistols and cartridges from that bag. They also testified that a recovery memo was prepared and signed by them. They next spoke about the packaging and sealing of those arms and ammunition.
5. Constable Bhim Singh (PW 3) testified that on 3-5-1991 he had taken the sealed parcels from the Malkhana of Dabri Police Station to CFSL and delivered them intact. The report of CFSL (Ext. A) shows that all the pistols were in working order and the cartridges were live. Constable Bhim Singh (PW 4) proved the sanction accorded by Deputy Commissioner of Police under Section 39 of the Arms Act which was marked by PW 4/A. Head Constable Khushi Ram (PW 5) who was the Duty Officer of Dabri Police Station on 23-4-1991 a proved the FIR Ex, PW 5/A. Constable Jasbir Singh (PW 6) proved that the arms and ammunition seized were deposited in the Malkhana of the police station and were forwarded to the CFSL from there through Constable Bhim Singh (PW 3).
6. Having carefully gone through the evidence of PW 1 and PW 2, two of the members of the raiding party, we do not find any reason to disbelieve them, more particularly when nothing could be elicited in the cross-examination to discredit them. On the contrary, their evidence is consistent and corroborates each other.
7. The learned counsel appearing for the appellant first contended that non-examination of SI Sube Singh who investigated into the case, raised a great suspicion about the truth and bona fides of the prosecution story. We do not find any substance in this contention. It appears that in spite of best efforts the prosecution could not produce him and therefore no adverse presumption can be drawn against the prosecution for his non-examination. That apart, nothing was elicited in cross-examination of any of the prosecution witnesses wherefrom it could be said that the investigating officers production was essentially required to give an opportunity to the defence to cross-examine him with reference to statements recorded by him under Section 161 CrPC or any steps taken by him during investigation. His non-examination, therefore, did not in any way affect the prosecution case nor prejudice the appellant in his defence.
8. The only other contention raised by the appellant was that no public witness was examined though the alleged recovery took place at a bus stand in the evening. It appears from the evidence of both PWs 1 and 2 that in spite of requests made none of the shopkeepers and the people present there were willing to join the search party. As we do not find any reason to disbelieve the evidence of PWs 1 and 2 that their sincere attempt to secure public witness failed, no adverse inference for such non-examination can, therefore, be drawn.
9. On the conclusions as above we dismiss the appeal.
For Citation : 1994 Supp (3) SCC 729