Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.851 of 2013 ====================================================== 1. Surendra Ravidas S/O Late Kishun Ravi Das R/O Village Salaiya Khurd, P.S. Fatehpur At District Gaya. 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. Mahendra Thakur, Adv. For the State : Mr. Ram Anurag Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 5 24-10-2013 Petitioner Surendra Ravidas who has been found guilty for an offence punishable under Sections 25 (1-B) a of the Arms Act and directed to undergo RI for three years as well as slapped with fine appertaining to Rs. 3000/- in default thereof to undergo SI for three months additionally as well as under Section 26(1) of the Arms Act directed to undergo RI for three years as well as also slapped with fine appertaining to Rs. 4000/- in default thereof to undergo SI for four months additionally vide judgment dated
Legal Reasoning
27.07.2012 passed by Sri Anand Kumar Singh, Judicial Magistrate-1st Class, Gaya in G.R. No.1360/09 arising out of Fatehpur P.S. Case No. 57 of 2009 as well as judgment dated 14.06.2013 passed by Adhoc Additional Sessions Judge-V Gaya in Cr. Appeal No. 100/2012/04/2013 whereby and whereunder concurring the conviction under both heads and further confirmed 2 the sentences so far rigorous imprisonment is concerned while erased the fine portion, has challenged under present revision petition. 2. Satyendra Kumar Mishra (PW-2) recorded his own Fard-e-beyan on 13.05.2009 at 9:00 a.m. disclosing therein that after being confidentially informed regarding assemblage of extremists in the house of petitioner who were planning for commission of an occurrence, a raiding party was constituted and house of petitioner was raided. At that very time, petitioner was apprehended and in presence of two seizure list witnesses namely, Manish Manjhi and Ajay Manjhi, he was searched and during course thereof, a country made loaded pistol along with two mobile sets were seized from his possession for which seizure list was prepared and he was accordingly, taken into custody. 3. Having been registered as Fatehpur P.S. Case No. 57 of 2009 under Section 25 (1-B) a, 26 of the Arms Act and under Section 17 of C.L.A. Act, investigation commenced and concluded by way of submission of the charge-sheet whereupon trial conducted in a manner, the subject matter of instant revision. 4. The learned counsel for the petitioner submitted that the concurrent findings of the fact recorded by successive courts are based upon abrupt and erroneous conclusion. Further 3 elaborating the argument, it has been submitted that both the seizure list witnesses have not been examined in this case. No explanation has been furnished on behalf of prosecution regarding their non examination. Whoever have been examined in this case are only the police personnel whose evidence, in the background of motivated conduct of the police personnel right from inception of case should not be accepted as gospel truth. In the aforesaid backdrop the successive judgments are based on unfounded conclusions and suffering from surmises. 5. On the other hand, while refuting the submissions raised on behalf of petitioner, it has been submitted by the learned Additional P.P that the evidence of police personnel should not be disbelieved and discarded merely on their status because of the fact that when they appeared before the court as a witness of fact then their evidence should be considered like any other witness of the fact. It has further been submitted that all the witnesses have supported the case of the prosecution and on account thereof, the conviction and sentence recorded by the learned successive courts are fit to be confirmed. It has also been submitted that appellate court had already taken a lenient view by erasing the fine imposed by the learned trial court. 6. Apart from producing the material exhibit as well as 4 exhibited relevant documents, the prosecution had examined altogether five witnesses. PW-1 is Ramnagina Paswan, PW-2 is Satendra Kumar Mishra (informant), PW-3 is Nematullah (Sergeant Major), PW-4 is Ravindra Nath Tagore, Constable and PW-5 is Umesh Prasad, I.O. Now coming to the evidence, PW-1 had produced the material exhibit in court which was not at all wrapped and sealed as is evident from para-5 of his cross- examination. From para-8 of his cross-examination, it is evident that he had simply mentioned the fact that there is mark of identification on pistol only but what has been scribed he is unable to say. 7. PW-2 is the informant who had supported the prosecution case by deposing that during conduction of raid which was effected on the basis of confidential information, petitioner was apprehended in his house and from whose possession a country made loaded pistol along with two mobile sets were seized for which seizure list was prepared. He himself had recorded his Fard-e-beyan. During examination-in-chief he had not deposed that the aforesaid arms and ammunition as well as mobile set were wrapped and sealed which he also admitted under para-29 of his cross-examination. In para-33 of his cross- examination, he had disclosed that there is some mark on the arms 5 but he is unable to decipher the same. 8. PW-3 is the Sergeant Major who had stated that he had examined the case properly of Fatehpur P.S. Case No. 57 of 2009 and had issued his report. He found the pistol and cartridge to be effective one. He had put his mark as N-49/09. However, during cross-examination at para-4, he had stated that he had not wrapped and sealed the same nor he is remembering whether it was produced in wrapped/sealed condition. 9. PW-4 is one of the constables who had participated during conduction of raid. He had deposed regarding apprehension of petitioner as well a s recovery of loaded pistol and two mobile sets. However, he had failed to disclose whether the arms were wrapped or sealed. 10. PW-5 is the I.O. who had stated that after registration of the case he was entrusted with the investigation wherein he had examined the witnesses, inspected the place of occurrence, took statement of accused, forwarded him to custody, got the arm and cartridge examined by the ballistic expert, obtained sanction order and then also traced out criminal antecedent of petitioner being involved in so many cases (detailed) and then submitted charge-sheet. During cross-examination at para-8, he had stated that identification mark of seized arms was 6 N-49/09. He had further stated that he had not seized arms. 11. So from his evidence, it is apparent that he had not deposed regarding handing over of pistol and cartridge along with two mobile sets by the informant (PW-2) nor from the evidence of PW-2, it is evident that he had handed over the seized pistol and cartridge, two mobile sets to PW-5, the I.O. PW-3, Sergeant Major had not stated that by whom the pistol and cartridge were produced. Neither PW-2 nor PW-4 nor PW-5 have stated that they had put any sort of identification mark on the seized arm and ammunition. Whatever mark was given, that was after examination by PW-3 after examination as N-49/09. That means to say, the prosecution is completely silent with regard to putting of identification mark at the place of occurrence as well as wrapping and sealing of the seized pistol and cartridge along with two mobile sets. In spite of recovery of two mobile sets, PW-5, the I.O. had failed to connect the same with the SIM whether it stood in the name of petitioner, so that it could have directly linked the petitioner with the alleged seizure from his conscious possession. For want of the same, it is difficult to infer that the pistol and cartridge which were produced before PW-3 for examination were the same pistol and cartridge recovered and seized from the possession of petitioner. In likewise manner, as PWs- 1, 2, 3 and 5 7 failed to disclose the identification mark of material exhibit produced before the court having N-49/09, therefore, again a dilemma persists whether the pistol and cartridge examined by the PW-3 were the material exhibit produced before the court. That means to say, there is complete absence of connecting link with regard to the fact that the pistol and cartridge, two mobile sets recovered and seized from the possession of petitioner were the subject of material exhibit before the court. 12. The Hon’ble Apex Court had occasion to see the aforesaid infirmity in the case of Jasbir Singh v. State of Punjab as reported in AIR 1998 SC 1660 wherein under para-3 it has been observed which is as follows:- 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 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 aspect was not prosecution witnesses. This 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 8 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.” 13. As such, the concurrent findings of the successive courts are set aside. Petition is allowed. 14. Since petitioner is under custody, he is directed to be released forthwith if not wanted in any other case. Patna High Court October 24th 2013 Perwez/AFR (Aditya Kumar Trivedi, J)