Didar Singh and Others vs State of Punjab

K.P.S. Sandhu, J.—Two revisions have been filed by Didar Singh Petitioner. Criminal Revision No. 802 of 1982 has been filed against the conviction and sentence u/s 61(1) (c) of the Punjab Excise Act and Criminal Revision No. 1034 of 1982 against the conviction u/s 25 of the Arms Act. The Petitioner was separately tried for these two offences although the recovery of a working still and a pistol was made at one and the same time. The Petitioner has been awarded rigorous imprisonment for one year and a fine of Rs. 5500, in default further rigorous imprisonment for six months u/s 61 (1) (c) of the Punjab Excise Act. The conviction and sentence of the Petitioner were maintained in appeal by the lower appellate Court. He was sentenced to rigorous imprisonment for six months and a fine of Rs. 500, in default further rigorous imprisonment for two months u/s 25 of the Arms Act by the trial Court. In appeal, the lower appellate Court maintained the conviction but released the Petitioner on probation.

However, he was burdened with Rs. 500 as litigation expanses. This judgment will dispose of both the revisions.

When the revisions were called for hearing Mr. K.L. Jagga, Learned Counsel for the Petitioner, filed Criminal Misc. No. 6676 of 1983 in Criminal Revision No. 802 of 1982 and Criminal Misc. No. 6679 of 1983 in Criminal Revision No. 1034 of 1982 praying that since the Petitioner had died his legal representatives should be brought on record and be allowed to pursue the revisions. The contention of Mr. K.L. Jagga, Learned Counsel for the Petitioner, is that in view of the provisions of Section 394 of the Code of Criminal Procedure only an appeal could abate and that the legislature In its wisdom did not provide for the abatement of the revisions. Section 394 reads as under:

394, Abatement of appeals.-(I) Every appeal u/s 377 or Section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the Appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the Appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the Appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

* * *

Mr. T.S. Sangha, Learned Counsel for the State, very fairly concedes that only an appeal against conviction and sentence would abate on the death of the accused. A criminal revision would survive the death of the accused, because the revisional Court can suo motu go into the correctness, legality and propriety of the judgment of an inferior Court. I agree with the proposition set up by the counsel for the parties that these revisions would survive and that the legal representatives of the Petitioner are competent to pursue the petitions. Consequently I allow Criminal Misc. Nos. 6676 and 6679 of 1983 for bringing the legal representatives of the Petitioner on record.

On merits Mr. K.L. Jagga, Learned Counsel for the Petitioner, has submitted that as far as conviction of the Petitioner u/s 61 (1) (c) of the Punjab Excise Act is concerned it cannot be sustained for the reason that the evidence in the case consists only of official witnesses, namely. Inderjit Singh Excise Inspector, Malkiat Singh Assistant Sub-Inspector and Mohinder Singh Assistant Sub-Inspector. The prosecution case is that on receipt of secret information the police party raided the house of the Petitioner and the Petitioner was found working a still and pistol Exhibit P1 was re-covered from him at that time Evidently the police party had ample time to join some independent witnesses from the public but they failed to do so for reasons best known to them. In this context Mr. K L. Jagga has placed reliance on Nasib Chand v. The State of Punjab 1973 C.L. R. 304, Dalip Singh v. The State 1973 C.L. R. 398, Baj Singh v. The State of Punjab 1975 C L R. 123, Kishan Chand and Anr. v. The State of Punjab 1975 C.L. R. 178 and Kuldip Singh v. The State of Punjab (1977) 4 Cr. L.T. 198, wherein it has been held that when the police has ample opportunity to join independent witnesses and it fails to join them it would not be safe to base conviction on the solitary statements of the official witnesses. Apart from this, Mr. K L. Jagga has brought to my notice a number of discrepancies on material points in the statements of Inderjit Singh PW 1 and Malkiat Singh PW2 which also throw a grave doubt on their veracity. Consequently I allow Criminal Revision No. 802 of 1982 and set aside the conviction and sentence of the Petitioner. The fine, if paid, would be refunded to the legal representatives of the Petitioner who have been brought on record.

As far as Criminal Revision No. 1034 of 1982 against the conviction u/s 25 of the Arms Act is concerned, Mr. K.L. Jagga has contended that admittedly it was a licensed pistol and that, the only allegation against the Petitioner was that on the day of its seizure the licence had expired. But it is again on record that the same licence was renewed retrospectively In view of this, the trial Court was not justified in ordering the confiscation of pistol Exhibit PI and the cartridges. Apart from this, Mr. K L. Jagga hat pressed into service Section 12 of the Probation of Offenders Act. According to the provisions of that section, the release of a person on probation would not be considered a disqualification which would otherwise attach to a person convicted of an offence. Consequently I allow this revision and set aside the conviction. The amount of Rs. 500/- which was ordered to be paid as litigation expenses, if paid-, would be refunded to the legal representatives of the Petitioner They are also entitled to get pistol Exhibit P1, the license and the cartridges.