Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.663 of 2013 ====================================================== 1. Prahalad Kumar Son Of Jitan Yadav Resident Of Village- Habbipur, P.S. Chandauti, District- Gaya 2. Parshuram Prasad Son Of Deo Nandan Prasad Resident Of Village- Habbipur, P.S. Chandauti, District- Gaya The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Nagendra Kumar Singh, Advocate. For the Respondent/s : Mrs. Gulnar Begum, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 19-09-2013 Heard learned counsel for the petitioners as well as learned Additional P.P. 2. Challenge in this revision is judgment dated
Legal Reasoning
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 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.” 10. Thus, the successive judgments are found unsustainable in the eye of law, accordingly, are set aside. Petition is allowed. Both the petitioners are under custody, hence, are directed to be released forthwith, if not wanted in any other case. B.Kr./- (Aditya Kumar Trivedi, J)
Arguments
09.10.2002 delivered by Sri Ishwar Chandra Chaturvedi, Judicial Magistrate, Ist Class, Gaya in G.R.No.106 of 199 convicting both the petitioners for an offence punishable under Sections 25(1-B)a, 26 of the Arms Act and sentenced each of them to undergo S.I. for one year as well as fine of Rs.500/- under Section 25(1-B)a and six months S.I. as well as fine of Rs.200/- under Section 26 of the Arms Act having no default clause, however directing the sentences to run concurrently coupled with the judgment dated 23.04.2013 passed by Adhoc Additional Sessions Judge-V, Gaya Patna High Court CR. REV. No.663 of 2013 (3) dt.19-09-2013 2 in Cr.Appeal No.5 of 2012/97 of 2002 dismissing the same. 3. P.W.2 Shubhendra Kr. Suman along with the police party where in routine check up at Chhotaki Nawada Tirmuhani and during course thereof, they have intercepted the petitioners on their suspicious activity along with motorcycle. On personal search in presence of seizure list witnesses a country made loaded pistol was recovered from possession of Prahlad Kumar while from possession of the Parshuram Prasad, a cartridge of .315 bore cartridge was seized for which seizure list was prepared. On the basis thereof, Delha P.S.Case No.5 of 1999 was registered wherein chargesheet was submitted leading to trial which ultimately met with conviction of the petitioners, hence this revision. 4. Altogether nine P.Ws. have been examined on behalf of the prosecution to support its case along with Ext-1, 1/1 seizure list as well as signature of seizure list witnesses, Ext-2 written report, Ext-2/1 forwarding note on the written report, Ext-3 formal FIR, Ext-4 Ballistic expert report, Ext-5 sanction order along with material Ext-1 pistol, Ext-2, 2/1 two cartridges. 5. Now coming to the nature of evidence of the P.Ws., one of the seizure list witness, P.W.1 along with one of the member of the Patrolling party, P.W.6 were declared hostile. P.W.4 in para-5 had stated that he would not identify the accused Patna High Court CR. REV. No.663 of 2013 (3) dt.19-09-2013 3 in Court then again corrected it that had there been presence of the accused in Court, he would have identified. P.W.5 in para-6 had stated that he is unable to identify the accused on account of elapse of time. In likewise manner, P.W.8 in paragraph-4 had stated that he is unable to identify the accused. P.W.7 happens to be formal in nature on account of production of the arms and ammunition in Court only. 6. Now coming to the remaining evidence, P.W.2 is the informant himself who in examination-in-chief had supported the case of the prosecution divulging the story of recovery of loaded fire arms as well as cartridge from respective accused Prahalad Kumar as well as Parshuram Prasad for which seizure list was prepared. During cross-examination at para-19 he had stated that first of all he had produced the seized arms and ammunition before the O.C who handed it over the same to the investigating authority in his presence. He had not put any identification mark over the seized arms and ammunition. He had not put any identification mark on the basis of which he could identify the seized material. The I.O. also could not put any identification mark in his presence nor had taken his signature over the same. In para-20 he said that there happens to be a Malkhana in every P.S. He is unable to say how many illegal arms are kept in the Malkhana. Patna High Court CR. REV. No.663 of 2013 (3) dt.19-09-2013 4 7. P.W.3 had supported the factum of recovery but he had not pin pointed from whose possession what kind of recovery was made. However, during course of cross-examination at para-5, he had clearly stated that he is unable to identify the seized articles. 8. P.W.9 is the investigating authority who had detailed the place of occurrence. He also got examined the material exhibit by Ballistic expert, exhibited the report. Also exhibited the sanction order, recorded statement of witnesses and submitted chargesheet. During cross-examination at para-14 he had stated that the seized arms and ammunition was under his possession till examination by Ballistic expert. Again he corrected that from 15.01.1999 to 21.01.1999 the pistol was in the Malkhana. The chit of paper affixed thereupon was put by Malkhana. In para-17 he had stated that he had not put any identification mark over the seized material. He did not try to seal the same. So many fire arms of present caliber might have been in the Malkhana. From the evidence as referred above, it is evidently clear that prosecution had failed to wrap and seal the seized arms and ammunition at the spot. The prosecution also failed to put an identification mark over the same and in the aforesaid background, the evidence of P.W.9 para-17 ruins the prospect of prosecution version. On account thereof, it cannot be said that the arms and ammunition which were produced before the Court as material exhibit was the same which was seized from the possession of these two petitioners. That means to say there happens to be absence of link of connectivity with regard to identification of arms and ammunition with the petitioner coupled with being produced before the learned Trial Court. Therefore, the benefit must go Patna High Court CR. REV. No.663 of 2013 (3) dt.19-09-2013 5 in favour of the petitioners. 9. In a case reported in AIR 1998 SC 1660 Jasbir Singh v. State of Punjab, it has been held: “3.What