Jittu @ Jitendra Chauhan @ Jittu Chauhan v. The State Of Bihar

with the finding arrived at by the learned Trial Court. Uday Pratap Singh(P.W.3) recorded his own fardbeyan Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 2 on 21.12.2005 at about 4 P.M. disclosing therein that after constituting a raiding party, he had conducted raid at the house of accused Jittu @ Jitendra Chauhan @ Jittu Chauhan(petitioner) who was an accused in Pandarak P.S.Case No.141 of 2005 and found him absent. However, his house was searched and during course thereof, a country made loaded rifle, one loaded pistol, one out of order pistol along with Bindolia were recovered at the Machan where cow-dung cakes were kept at the northern room of the house. On query wife of petitioner had disclosed that when these articles have been recovered from his house then it must be belonging to her husband. On the basis thereof, Pandarak P.S.Case No.142 of 2005 was registered whereupon investigation commenced and concluded by way of filing of chargesheet under Section 25(1-b)a and 26 of the Arms Act leading to trial which ultimately resulted in conviction of the petitioner, the subject matter of instant revision. Many fold argument has been raised on behalf of the petitioner while assailing the successive judgment of conviction and sentence. First and foremost ground happens to be with regard to authenticity of the ballistic examination report which the P.W.1 being a Sergeant Major has exhibited. To challenge its reliability it has been submitted that neither he happens to be an expert in Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 3 terms of Section 45 of the Evidence Act nor his report identify the articles as per definition having under Section 2 of the Arms Act. Consequent thereupon, neither the report happens to be admissible in the eye of law nor any sort of reliance could be placed thereupon. It has further been submitted that it is an admitted prosecution case that at the time of conduction of raid petitioner was not at all present. The recovery was made in his absence and at that very time, as is apparent, his wife was present. Presence of wife speaks about joint possession. Unless and until there happens to be conclusive evidence erasing the presumption of joint possession, then and then only petitioner is liable for conviction. It has also been submitted that neither the wife has been cited as a witness nor shown as an accused. Therefore, whatever disclosure she had made before the informant happens to be not at all admissible in terms of Evidence Act because of the fact that it does not amount to admission nor it could be treated as theme of hearsay. It has further been submitted that P.W.2, the investigating officer had visited the place of occurrence and a bare perusal of objective finding whatever he incorporated regarding the place of occurrence, it happens to be accessible to all. To buttress his submission, the learned counsel for the Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 4 petitioner cited AIR 1915 Calcutta 719, 1976 Cr.L.J.(1) 205 and AIR 1951 Calcutta 140. At the other hand, the learned Additional P.P. while refuting the submission raised on behalf of the petitioner submitted that because of the fact that petitioner during course of cross-examination of P.W.1 had not challenged his status as well as his report on the score that he was not an expert in terms of Section 45 of the Evidence Act relating to examination of arms and ammunition as such he is precluded from raising such issue for the first time in revision. It has also been submitted that none of the P.Ws. have been cross-examined by the petitioner on the disclosure made by his wife and so that part of evidence remained intact and therefore rightly been used against the petitioner in the background of the fact that the wife happens to be inmates of the house and was aware with the illegal activity of her husband. It has also been submitted that in the present scenario, at least in the country side the husband has dominance upon the wife and taking into account her social status, it was not expected at her end to say anything against her husband. In the aforesaid background, it has been stated on behalf of learned Additional P.P. that concurrent finding of fact should not be interfered during course of revisional jurisdiction in routine manner. Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 5 It is true that during course of revisional jurisdiction, the factual aspect should not be interfered with unless and until there happens to be manifest error visualizing from the successive judgments. From the Lower Court Record, it is evident that altogether five witnesses have been examined on behalf of the prosecution to support its case along with exhibit of documents coupled with material exhibits. P.W.3, the informant during course of his examination- in-chief as well as during course of recording his self statement had not stated that the recovery was made in presence of wife of petitioner from the place as indicated in the seizure list or so pointed out by the wife of the petitioner. P.W.3 had not spoken that he had inspected all the rooms and then the recovery was made from the northern room. It is evident from the evidence itself that petitioner happens to be an accused in Pandarak P.S.Case No.141 of 2005 and was not available at the spot. It is evident from para-2 of P.W.2, the I.O. who had failed to incorporate the fact at whose instance the place of occurrence was identified. From para-2, apart from aforesaid deficiency he had stated that the recovery was made from the Machan where cow-dung cakes were stored at northern side of the house. He had further stated in para- Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 6 13 of his cross-examination that a copy of seizure list was handed over to the accused and receipt thereof was obtained from him. In para-14, he had stated that the house from where arms were recovered contains two rooms. The house is not constructed from all side. Then at para-17, he has stated that because of the fact that Jittu @ Jitendra Chauhan @ Jittu Chauhan was not at all present, as such his signature was not obtained. The inconsistency amongst the evidence of P.W.2 as referred above has got a bearing which could be gathered from the evidence of P.W.3, the informant as well as from Ext-3, the fardbeyan. The relevant passage is quoted below:- ^^cjken vkXus;kL= ,oa xksyh ds lEcU/k esa yfyrk nsoh ls iwNk rks mUgksaus crk;k fd gedks ugha ekywe] tc gekjs ?kj ls fey jgk gS rks gekjs ifr dk gh gksxk A** and virtually this theme happens to be responsible for arraying the petitioner to be an accused. When this averment is taken together with the conduct of the police official, it is apparent that recovery was not at all made in presence of Lalita Devi. The aforesaid averment also discloses that on account of having been confronted by the police she had spoken like so although the physical feature of the house did permit access of any one without any interruption. The factum of recovery has also become under doubt on account of the fact that P.W.3 directly rushed to northern Patna High Court CR. REV. No.691 of 2013 (4) dt.27-08-2013 7 room searching the arms and ammunition from cow-dung cakes without searching the other rooms. It suggests two options. Either the police officials were known regarding presence of fire arms at that place or it was a case of plantation. The most crucial aspect of the case is that the police official, on their own, has not arrayed the petitioner as an accused rather based upon disclosure made by the wife of the petitioner, who has not been examined. Hence, the disclosure whatever may be became inadmissible in the eye of law. Thus, the alleged search and seizure and further arraying the petitioner to be only responsible for such recovery, happens to be non-recognizable under the eye of law. Consequent thereupon, petitioner is at least found entitled for benefit of doubt. Consequent thereupon successive judgments are set aside. Petition is allowed. Petitioner is under custody, hence he is directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-