Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.565 of 2013 ====================================================== 1. Vijay Prasad Son Of Ram Chandra Singh Resident Of Village- Ghurichak, P.S.- Bihta, District- Patna 2. Raghvendra Kumar @ Raghu Son Of Sri Shatrughan Singh Resident Of Village- Ghurichak, P.S.- Bihta, District- Patna State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ramakant Sharma, Sr.Advocate. Mr. Ravish Chandra, Advocate. For the Respondent/s : Mr. Madan Kumar, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 31-07-2013 Heard learned counsel for the petitioners as well as learned Additional P.P. 2. Petitioners Vijay Prasad and Raghvendra Kumar @ Raghu have been found guilty for an offence punishable under Section 25(1-B)A/35 of the Arms Act, 26 of the Arms Act by Railway Judicial Magistrate, Patna vide judgment dated 05.06.2003 relating to G.R.No.12 of 1995 and were sentenced to undergo Rigorous Imprisonment for two years under Section 25(1- B)A 35 of the Arms Act and Rigorous Imprisonment for one year under Section 26 of the Arms Act and with a direction to run the sentences concurrently which has found approved in Cr.Appeal No.107 of 2003 by the learned Additional Sessions Judge-II,
Legal Reasoning
Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 2 Danapur, Patna by judgment dated 06.03.2013 is the subject matter of instant revision. 3. P.W.7, Bishundeo Prasad recorded his self statement on account of recovery of loaded country made pistol from the person of petitioner Vijay Prasad and three live cartridges along with a Rampuri Knife from the possession of Raghvendra Prasad @ Raghu, on 05.01.1995 at about 8.40 P.M. at platform No.1 of Danapur Station for which seizure list was prepared in presence of Binod Kumar and Prem Kumar whereupon Danapur G.R.P.S.Case No.01 of 1995 was registered under Section 25(1-B), 26 and 35 of the Arms Act followed with submission of chargesheet and ultimate conclusions finding that petitioners guilty and accordingly sentenced duly approved at the appellate stage also is the subject matter of instant revision. 4. It has been submitted on behalf of the petitioners that in spite of having examination of nine witnesses as well as the document exhibited on behalf of the prosecution, the case is suffering from inherent infirmities. The first and foremost argument has been raised that P.W.5 Jagdish Soren, according to prosecution version itself, was accompanying the informant P.Ws.7 along with other police personnel, had prepared the seizure list(Ext-1) was entrusted with investigation unfairly and on Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 3 account thereof, conducted investigation and submitted chargesheet illegally therefore by such action of the prosecution the interest of petitioners have found jeopardize. It has also been submitted that the recovery was alleged to have taken place near a book stall at platform No.1 even then there happens to be total absence of independent witness. All the witnesses so examined in this case are police personnel who too have admitted that they had not made any statement before the I.O. during course of investigation. Therefore, their evidences have become doubtful as well as inadmissible in the eye of law being contrary to Section 161 of the Cr.P.C. It has further been submitted that P.Ws.8 and 9 who are seizure list witnesses had not supported the factum of recovery. The Ballistic expert has not been examined and his report has formally been proved without any legal sanctity. So, in sum and substance, it has been submitted that the prosecution case is not above the board, hence, petition is fit to be allowed. 5. At the other hand, the learned Additional P.P. opposed the prayer and submitted that the evidence of the witnesses could not be brushed aside in ordinary course of nature that too when there happens to be concurrent finding of fact, unless and until there happens to be wrong way adopted during appreciation of the evidence, then and then only the revisional court could take notice Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 4 thereof. 6. Then, it has been submitted that mere being a police personnel, the evidence of the witnesses should not be rejected. Its probity value is to be looked into after taking into account the evidence in its totality. When the evidence is taken together it is crystal clear that there happens to be recovery of illegal fire arm and ammunition along with Rampuri knife from the possession of respective petitioners and that is found corroborated with the evidence of P.W.6 who had produced those items before the court bearing material Ext-I, II. Last but not least, it has also been submitted on behalf of the learned Additional P.P. that status of P.W.5 as an I.O. is not going to dent upon the prosecution version because of the fact that petitioners have not been able to place that they have suffered prejudice on account thereof. 7. In a case reported in AIR 1998 SC 1660 Jasbir Singh v. State of Punjab, it has been held that where there happens to be absence of wrapping and sealing of seized arms and ammunition. No identifying mark has been put after seizure then in that event, the factum of search and seizure became doubtful and on account thereof, the prosecution case has to be rejected. For better appreciation, the relevant para no.3 is quoted below:- “3.What learned counsel for the appellant is that the prosecution is contended by the Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 5 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 the Court was not established by the 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 the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him.” 8. When the evidence is gone through to search out what the witnesses have deposed on that very score, it is apparent that P.Ws.1 and 2 have not divulged anything on that very score. In likewise manner, the evidence of P.W.4 happens to be. P.W.3 in para-6 had stated that he is unable to say whether the seized article was sealed or not. P.W.5, the investigating authority had not spoken a word during his examination-in-chief. However, during cross-examination at para-11 had sated that when he was entrusted with the investigation, he was handed over with sealed seized article. He had not put his signature over seal. He further stated Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 6 that seized articles were not sealed at the place of occurrence. From his examination-in-chief para-4 had stated that he has took up investigation at the place of occurrence. Therefore, he purposely introduced the story to patch up infirmities visualizing in the prosecution case. 9. P.W.7 had not spoken in his examination-in-chief. However, during cross-examination at para-5 he had stated that the seized article has been produced in court in an envelop having no bearing of seal. He has also stated that the material Exts-I and II have not any label affixed thereupon. He has further stated in para-7 that investigation was entrusted to P.W.5 Jagdish Soren at the place of occurrence itself. In para-8, he had admitted that the seized pistol and cartridges were not sealed. So he happens to be totally inconsistent of P.W.5. Not only this, he also raised doubt over reliability of the prosecution version as P.W.5 had received sealed arms and ammunition while P.W.7 denied to have sealed. Then in such circumstance, it will be presumed that some other articles were handed over to P.W.5, the Investigation Officer. 10. Apart from this, some of the witnesses that means to say P.Ws.1, 2 and 3 have admitted that they have not made any statement before the investigating authority during course of investigation. The status of P.W.5 apart from being the author of Patna High Court CR. REV. No.565 of 2013 (3) dt.31-07-2013 7 seizure list was also investigating authority. His dual conduct had really prejudiced the cause of petitioner is itself apparent from his cross-examination whereunder at para-11, he had stated that ballistic expert had noted down his opinion in his presence contrary to the statement made under para-7 of his examination- in-chief whereunder he had stated that he had sent the seized arms and ammunition for ballistic examination. 11. In the aforesaid event and taking into account the existing deficiencies persisting on the record as referred above it looks unsafe to concur with the finding arrived at by the successive courts. Consequent thereupon, the successive judgments are set aside. Petition is allowed. Petitioners are under custody, hence are directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-