Sudam Das v. The State Of Bihar

further direction to run the sentences concurrently by Sri Rakesh Kumar-II, Judicial Magistrate, Ist Class, Munger in G.R.No.272 of 2012 as well as judgment dated 04.08.2012 passed by Adhoc Additional District Judge-III, Munger in Cr.Appeal No.42 of 2012 dismissing the same to the extent of Section 25(1-B)a of the Arms Act moreover allowed the same to the extent of 26(1) of the Arms Patna High Court CR. REV. No.1094 of 2012 (5) dt.04-10-2013 2 Act has preferred instant revision.

3. It has been contended on behalf of the petitioner that successive judgments are wrong and erroneous on account of non- appreciation of the evidence in its right perspective. It has further been submitted that the evidence adduced on behalf of the prosecution is suffering from so many infirmities. It has also been submitted that the informant, P.W.1 is also not consistent with his initial version. Moreover, the investigation of the case is out and out a table work and on account thereof, so many lapses are visualizing therefrom. The cumulative effect as has submitted did not justify the concurrent finding.

4. At the other hand, the learned Additional P.P. while refuting the argument submitted that the scope of revisional jurisdiction is limited and in exception case, where the glaring defect visualizing from the successive judgments nullifying concurrent finding will justify scrutiny of evidence otherwise not. So far present case is concerned, there happens to be minute observation of the evidences by the successive courts whereupon conclusion has been arrived at. Therefore, the petition is fit to be dismissed.

5. From the Lower Court Record, it is evident that altogether three witnesses have been examined, out of whom, Patna High Court CR. REV. No.1094 of 2012 (5) dt.04-10-2013 3 P.W.1 Ranjit Kumar, the informant himself, P.W.2 is Arbind Kumar Singh, the Sergeant Major and P.W.3 is Balmukund Sah, I.O. Prosecution had also exhibited series of documents coupled with material exhibit.

6. As per self statement of P.W.1 recorded on

17.02.2012 near the Crusher of Dayanand Yadav on N.H.80 divulging the fact that on getting suspicious over the activity of petitioner including other they were apprehended and during course of search, from the possession of petitioner one country made loaded pistol was seized while from the possession of his associate Baudhul Das two live cartridges were seized and for that, after registering a substantial case, the investigation commenced and concluded by way of filing of chargesheet whereupon ultimately conviction was recorded, the subject matter of instant revision.

7. After giving anxious consideration of the fardbeyan, it is evident that P.W.1 had not disclosed the fact that any mark of identification was put over seized arms and ammunition at the place of occurrence nor there happens to be disclosure with regard to sealing thereof at the place of occurrence. Not only this, during course of evidence of P.W.1, he kept mum on that very score which is also found supported with the evidence of I.O. P.W.3. Patna High Court CR. REV. No.1094 of 2012 (5) dt.04-10-2013 4 However, from the evidence of P.W.2 Sergeant Major, it is apparent that the arms and ammunition were produced before him in sealed condition. The aforesaid situation has not been explained either by P.W.1 or by P.W.3 and on account thereof, there happens to be absence of connectivity with regard to arms and ammunition so produced before the P.W.2 Sergeant Major and in likewise manner before the court by way of material exhibit with the arms and ammunition so seized.

8. In the case of Jasbir Singh v. State of Punjab as reported in AIR 1998 SC 1660 under para-3 the same theme has been dealt with in following way:- the Court was not established by “3.What is contended by the learned counsel for the appellant is that the prosecution evidence itself shows that the pistol and cartridges alleged to have been recovered from the appellant did not have any number or some distinctive mark on them and after their seizure by the police they were sealed. Thus the identity of the weapon and the cartridges seized and the weapon and cartridges produced before prosecution. Having gone through the evidence, we find that contention raised on behalf of the appellant is correct and, therefore, deserves to be accepted. The pistol and the cartridges did not have any mark or any number on them and after seizing the same police had not thought it fit to wrap them and apply a seal over them. No explanation in that behalf was given by the prosecution witnesses. This aspect was not considered by the trial Court. As the identity of the incriminating articles has not been established by the prosecution, we allow this appeal, set aside the conviction of the appellant both under Section 5 of Patna High Court CR. REV. No.1094 of 2012 (5) dt.04-10-2013 5 the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him.”

9. Thus, on account of aforesaid lapses visualizing on the record it looks unsafe to accede with the prosecution so far factum of recovery of fire arm and ammunition from the possession of the petitioner is concerned. Consequent thereupon, successive judgments are set aside. Petition is allowed. Petitioner is under custody, he is directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-