Shambhu Sahni v. The State Of Bihar

2010 confirming the same has challenged the successive judgments under present revision petition. Patna High Court CR. REV. No.782 of 2013 (4) dt.03-10-2013 2

2. P.W.1 Mehfooj Alam Khan had recorded his self statement on 09.08.2009 at about 7.30 P.M. at village-Katharia, P.S. Begusarai disclosing therein that on the same day at about 5 P.M. he along with other police personnel proceeded in patrolling as well as for apprehending the absconding accused and reached near Noorpur Katharia at about 6.45 P.M. where he got confidential information with regard to presence of Shambhu Sahni over which they have rushed and at about 7 P.M. when they reached near Kathariya school one person began to flee who was chased and apprehended and on interrogation, disclosed his identity as Shambhu Sahni. The independent witnesses on account of notoriety of the accused did not come forward to stand as a search and seizure list witness and on account thereof, the police personnel stood as seizure list witnesses in whose presence on search one loaded country made pistol along with a charger having four cartridges of .303 bore were recovered for which, he failed to explain the same.

3. On the basis of the aforesaid self statement Bhagwanpur P.S.Case No.126 of 2009 was registered wherein ultimately chargesheet was submitted and on the basis thereof, the trial commenced and concluded being the subject matter of instant revision. Patna High Court CR. REV. No.782 of 2013 (4) dt.03-10-2013 3

4. From the Lower Court Record, it transpires that altogether four P.Ws. have been examined along with the material exhibit as well as having certain documents also been exhibited on behalf of the prosecution to support its case. After having minute observation of the evidence available on the record in consonance the self statement of P.W.1, it is evident that neither the self statement of P.W.1 nor P.W.1, P.W.2, P.W.3, the I.O. had spoken that at the time of recovery any identification mark was put over seized arms and ammunition as well as it was ever wrapped and sealed at the place of occurrence. Therefore, the material exhibit which has been brought up before the learned Lower Court happens to be the arms and ammunition which was seized from the possession of the petitioner during conduction of raid is a matter of concerned which the prosecution was expected to explain by cogent, reliable evidence but in the background of the fact that P.W.1 at para-3 had stated that the paper pasted over material exhibit was not pasted by the investigating authority rather it was pasted by the Incharge Malkhana the thing has become more worsen. In para-4 he had stated that Incharge Malkhana had pasted after taking into account the station diary entry. In para-17, he has stated that so many arms and ammunition of similar kind were available in the Malkhana. Patna High Court CR. REV. No.782 of 2013 (4) dt.03-10-2013 4

5. The aforesaid deficiency persisting during course of investigation has been taken into consideration by the Hon’ble Apex Court times without number.

6. 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 the TADA Act and 25 of the Arms Act and acquit him of all the charges levelled against him.”

7. Thus, on account of missing link having in the prosecution case with regard to the material exhibit having been produced before the court was really recovered from the Patna High Court CR. REV. No.782 of 2013 (4) dt.03-10-2013 5 possession of the petitioner during course of conduction of raid and seized, it looks unsafe to rely upon the prosecution version. Consequent thereupon, the successive judgments are set aside. Petition is allowed. Petitioner is under custody, hence is directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-