PIR BUX Vs. STATE

JUDGEMENT

(1.) BOTH the appellants have been convicted and sentenced under Section 25 Arms Act to undergo R. I. for one year by order dated 7-5-1975 passed by I Additional Sessions Judge, Rampur. Very briefly stated the case of the prosecution against the appellants was: On 7-4-1973 at about 2 A.M. both the appellants were apprehended by Surendra Singh, Station Officer, Mahendra Singh Nihal, S. I. and M. C. Jain, S. I, (P. Ws. 3, 1 and 2) attached to police station Civil Lines, Rampur, on the road leading to Shahzad Nagar. From the possession of Pir Bux, a country made pistol and three live cartridges were recovered and from the possession of Wahid a country made pistol and four live cartridges were recovered. Recovery memo was written out by Sri M. C. Jain (P. W. 2) on the dictation of Surendra Singh. The appellants did not have a licence to possess the said fire-arms. The appellants denied the allegations of the prosecution. They contended that they had been arrested from their respective houses. Believing the evidence of the three police officers, named above, the Additional Sessions Judge convicted the appellants. Record has been examined with the assistance of the learned State counsel. In the present case there is no evidence which lends assurance to the evidence of the three police officers named above. At the time of taking personal search of the appellants the police officers made no attempt to obtain the presence of any member of the public. Another feature which is conspicuous in the present case is that M. C. Jain (P. W. 2) was an eye-witness of the occurrence. He wrote out recovery memo on the spot, of course, on the dictation of Surendra Singh. He is the investigating officer of the case. It is not understood that the police could not get a senior police officer to investigate the case. The purpose of investigation is to find out the truth in the allegations of the prosecution version. Therefore, a person, who is an eye-witness himself, cannot be the investigating officer. If a police officer, who is not an eye-witness, is made investigating officer, there is some assurance that the prosecution witnesses had given out a correct version of the occurrence at the earliest opportunity. If a police officer is an eye-witness and becomes investigating officer then there is no assurance that what the eyewitnesses have stated was true. In such a case the accused persons are highly prejudiced. They cannot make use of the provisions of Section 161 Cr. P. C. It will farther be noticed that Mahendra Singh Nihal and M. C. Jain, sub-inspectors were subordinate to Surendra Singh, Station Officer, Who played the vital role in the case. These two sub-inspectors cannot go against the wishes of their immediate senior. Moreover, in a case of the present nature the evidence of all the three police officers has to be construed as evidence of one man. As against this there is positive denial of the appellants. From this aspect also the appellants cannot be convicted on the bare testimony of a police officer. The evidence of the police officer gets no corroboration by any piece of evidence. It is not a case where an injury was caused to any of the police officers. If an injury is caused and if it is found on medical examination, it can lend assurance to the truth of the statement of the police officer. That position is also not available in the present case. These cases came to Court with the sanction of the District Magistrate Rampur (Ex. Ka 9 and Ka 10). The District Magistrate did not care to see that the alleged recovery of the fire-arms was not made in the presence of any member of the public. Before according such a sanction the District Magistrate should have seen that the personal search of the appellants was taken in the presence of some members of the public. The sanction is not to be granted in a routine manner or for mere asking by a police officer. The object of according sanction by a district authority is that he does not permit the liberty of a citizen to be taken away by a police officer. For what has been discussed above, the conviction of the appellants cannot be sustained. BOTH the appeals are allowed and the order dated 7-5-1975 passed by the I Additional Sessions Judge, Rampur, convicting and sentencing the appellants under Sec. 25 Arms Act is set aside. The appellants are on bail to which they shall not surrender. Their bail bonds are discharged.