The State Of Bihar v. Manoj Kumar @ Makhiya

Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 2 petitioner, the trial commenced and Sri Sunil Kumar Mishra, Judicial Magistrate, Ist Class, Patna City vide judgment dated

06.04.2009 passed in G.R.NO.1147 of 2005 found the petitioner guilty for an offence punishable under Section 25(1-B)a of the Arms Act and directed him to undergo R.I. for one year and six months as well as also fined of Rs.2,000/- in default thereof to undergo R.I. for two months as well as R.I. for one year and six months as well as fine of Rs.2,000/- and in default thereof to undergo R.I. for two months under Section 26 of the Arms Act with a further direction to run the sentences concurrently as well as the judgment dated 09.11.2012 passed by Additional District & Sessions Judge-II, Patna city in Cr.Appeal No.159 of 2009 dismissing the same, has challenged the successive finding under instant revision.

4. It has been submitted on behalf of the petitioner that he has fallen victim of high handedness of the police who had maneuvered the whole event at the instance of local tycoon Bhola Singh who happens to be the informant of Chowk P.S.Case No.124 of 2005. It has also been submitted that police had taken all precaution to justify recovery of loaded fire arm. However, some major deficiency is found exposed which nullify the factum of search and seizure. It has further been submitted that arms and Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 3 ammunitions were placed before the learned Chief Judicial Magistrate, it was examined by P.W.2, the Ballistic Expert but when the evidence of P.W.2, Ballistic Expert, P.W.3 one of constable of the raiding party and P.W.4, the I.O. as well as one of the member of the raiding party is taken together, it is evident that the identity of the arms so recovered did not tally. It is also evident that there happens to be inconsistency amongst P.Ws. over process of sealing of the arms so seized. It has also been submitted that virtually to implicate the petitioner, the arms having at the Malkhana since before was used and on account thereof there happens to be discrepancy amongst the evidence of the P.Ws. on that very score. It has also been submitted that none of the seizure list witnesses have been examined in this case. It has further been submitted that there happens to be utter violation of Section 100 of the Cr.P.C during course of search and seizure. The cumulative effect is found by way of discarding the evidence of all the P.Ws. on the factum of recovery.

5. At the other hand, the learned Additional P.P. while supported the concurrent finding has submitted that minor contradiction should not be taken into account. The I.O. has not been cross-examined with regard to procurement of arms and ammunition in illegal manner. The presence of arms and Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 4 ammunitions before learned Additional Chief Judicial Magistrate has not been controverted. The arms and ammunition were examined by P.W.2, the Ballistic Expert which was found effective. Apart from this, there happens to be consistent version of the witnesses, so far, recovery is concerned.

6. It has further been submitted that during cross- examination of P.W.1, the sealing of arms which was not disclosed by the P.W.1 during her examination-in-chief, was of the P.W.1 who had categorically stated that the arm itself brought by way of cross-examination was seized and sealed at the place of occurrence, and this part of disclosure coming under cross- examination was not found to be shaken by the accused while further cross-examining her nor any suggestion was given to her on this very score. As such, the sealing of the arms and ammunition is found properly conducted by the prosecution at the spot itself, consequent thereupon, there happens to be no inconsistency on this very score.

7. With regard to discrepancy amongst the evidence of the P.Ws. regarding physical feature of the arms, it has been suggested that none of the P.Ws., save and except P.W.2 had an occasion to see the arms by having in his hand during course of examination and whatever they have seen, with some distance and Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 5 therefore, the butt whether it was containing fibre or wooden or iron makes no difference. Hence revision is fit to be dismissed.

8. Neither under the Arms Act nor under the Criminal Procedure Code there is requirement that seized arms and ammunition should contain proper identification mark or it should be sealed. Therefore, non-putting of identification mark as well as non-sealing of arms and ammunition could be found contrary to the spirit of law. But, taking into account the theory of impartial investigation as well as to wipe the prospect of false implication by way of plantation, by catena of judicial pronouncement, the Hon’ble Apex Court had put safeguard on this very score whereunder, it was expected at the end of the raiding party to have proper identification mark over the seized arm and ammunition as well as it should be properly sealed so that the question of plantation should be avoided. Not only this, at Malkhana such kind of arms and ammunitions are found in good number and therefore to have proper identification of the seized arms and ammunitions with particular P.S. case number, it is expected that such kind of methodology must be adopted by the investigating officer to ward off any kind of suspicion. The seizure list is a paper work which suggest recovery of particular item from the possession of an individual. The sanctity of seizure list is subject Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 6 to test by way of production of the materials before the Court to satisfy that on account of recovery of aforesaid items from the possession of an accused was made in presence of seizure list witnesses and in token thereof, seizure list has been prepared.

9. To inter connect the aforesaid chain, there happens to be requirement of putting identification mark over the seized arms and ammunition as well as arms and ammunition having properly sealed at the place of occurrence itself. The aforesaid requirement has been perceived by the Hon’ble Apex Court. In the case of Jasbir Singh v. State of Punjab as reported in AIR 1998 SC 1660 under para-3 as quoted below:- 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 the TADA Act and 25 of the Arms Act and acquit Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 7 him of all the charges levelled against him.”

10. In the aforesaid background, when I proceed to filter the evidences having been adduced on behalf of the prosecution during course of trial, it is evident that the seizure list witnesses have not been examined nor there happens to be any sort of explanation. The presence of all the four witnesses out of whom three P.Ws, P.W.1, P.W.3 and P.W.4 are connected with the raid as well as investigation while P.W.2 happens to be the Ballistic Expert.

11. After going through the evidences of all the P.Ws., it is evident that there happens to be no inconsistency amongst the P.Ws. with regard to material exhibit which has been produced before the learned Trial Court as is evident from para-2 of P.W.1. Therefore, presence of arms and ammunitions is found beyond the controversy. The only controversy now remains intervening gap that means to say from the time of apprehension of petitioner to production of arms and ammunitions before the learned Chief Judicial Magistrate.

12. In this connection, the written report(Ext-2) is to be taken first. It speaks with regard to seizure of arms and ammunition and for that a seizure list was prepared in presence of Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 8 seizure list witnesses. It did not speak that any identification mark was put over the seized arms and ammunition as well as it was wrapped and sealed at the place of occurrence itself. The reason best known to the defence, attention of P.W.1, towards aforesaid lapses was not at all drawn. It is also apparent from the evidence of P.W.1 that although she had not spoken a word on this very score during her examination-in-chief, however, defence at his own dared to cross-examine as is evident from para-11 of her cross-examination wherein she had deposed that no identification mark was put at the time of seizure of country made pistol. It was sealed at the place of occurrence itself and then she had handed over to Inspector Saheb at P.S. At the time of sealing of arms, she had not obtained signature of seizure list witnesses, accused nor she her own put signature. In para-12 she had stated that the arms was sealed after warping under a cloth. The aforesaid disclosure made under para-11 and 12 has not been confronted to P.W.4, the investigating officer. The accused was expected to cross-examine this witness on this very score that when he took possession of the arms and ammunition whether, it was in sealed condition or not. Therefore, the evidence of this P.W. is found unshaken and it has not been tested through the evidence of P.W.4, the investigating officer. Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 9

13. P.W.3, one of the members of the raiding party was again silent on this very score during his examination-in-chief. However, was cross-examined in para-10, wherein he has stated that seized articles was brought at P.S. in barren condition and was kept at Malkhana. The arms were kept in Malkhana after being sealed. Seized arms was sealed having duly wrapped under cloth however he is not remembering the colour of the cloth. Therefore, from the evidence of P.W.3 also sealing of the arms and ammunition has been narrated. Even after considering his evidence, it is apparent that sealing was made just after seizure at the P.S. This witness was not at all suggested that the sealing of arms and ammunitions was made after having been procured from somewhere Malkhana.

14. Now coming to the physical feature of the arms so seized. From the seizure list, it is evident that there happens to be well description regarding the same. P.W.1 who had recovered the loaded fire arm over making search of body of petitioner was not at all cross-examined with regard to physical feature of the arms. P.W.2, the Ballistic Expert was cross-examined under para-4 of the cross-examination who had spoken that there happens to be presence of cover over grip of butt of pistol made up of fibre. P.W.3 was cross-examined on this very score under para-10 who Patna High Court CR. REV. No.832 of 2013 (5) dt.26-09-2013 10 had said that he had seen the seized arms and ammunition. He had found the butt made of wood. P.W.4 is the investigating officer who in para-4 had stated that he had seen the seized arms and cartridge. He found the butt of pistol made of iron. Neither P.W.3 nor P.W.4 had disclosed nor cross-examined whether they have occasion to touch the arms so seized. Therefore, whether the butt was made of iron or wood appear to be of no consequence. Now coming to the evidence of P.W.2, he had disclosed the grip to be that of fibre not that it was butt which was made of fibre. P.W.2 had occasion to see and examine the arms and ammunition in question. The defence could not be able to detail the physical feature of the arms.

15. Consequent thereupon, I do not see any sort of discrepancy persisting on the record. As such, the instant petition is found devoid of merit and is accordingly rejected. (Aditya Kumar Trivedi, J) B.Kr./-