Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.608 of 2013 ====================================================== 1. Pawan Kumar Sah S/O Birendra Sah @ Yogendra Sah Resident Of Village- Harda, P.S.- Maranga, District- Purnea 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. Kumar Uday Singh, Adv. Mr. Madanjeet Singh, Adv. For the State : Mr. Dashratah Mehta, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 6 03-09-2013 Challenge in this revision is judgment of conviction and sentence dated 21.08.2007 passed by SDJM, Purnea in G.R. Case No. 1453/06 holding the petitioner guilty for an offence punishable under Sections 25(1-B), a 35 & 26(1) of the Arms Act and sentenced him to undergo R.I. for two years as well as fined Rs.1000/- in default thereof to undergo R.I. for six months additionally, independently under both counts is found reduced under Cr. Appeal No. 111/2007 along with Cr. Appeal No. 113/2007 vide judgment dated 08.05.2013 passed by 1st Additional Sessions Judge, Purnea upholding the conviction but sentenced one year under both counts independently as well as maintained quantum of fine appertaining to Rs. 1000/- so inflicted by the
Legal Reasoning
learned lower court and in default thereof to undergo R.I. for six 2 months additionally. The sentences were directed to run concurrently. 2. It has been submitted on behalf of the petitioner that from the nature of allegation having against the petitioner out and out suggests it a case of plantation. In support of such plea, It has been submitted that recovery of only one cartridge has been shown against the petitioner which has got no relevancy at all. Neither its number suggests the dubious character of the petitioner nor possession of single cartridge lent any assurance to justify its possession. Because of the fact that petitioner had failed to grease the palm of police officials, they got him implicated in this case by such methodology. To prove the same, it has also been submitted that two DWs have been examined on behalf of the petitioner. 3. On the other hand, learned APP counter meeting with the submission submitted that concurrent finding of fact is not at all subject to interference by the revisional court. Therefore, this revision petition is fit to be dismissed. 4. It has been alleged by PW-1, Bednath Pathak Baidik that during course of patrolling, when they came near house of Murtaza, two persons were found under suspicious activity who were chased and apprehended. In presence of seizure list witnesses when they were searched out, from the possession of Niranjan 3 Kumar Yadav, a country made loaded pistol was recovered while from the possession of petitioner, Pawan Kumar one .303 cartridge was seized and for that Dhamdaha (Meerganj) P.S. Case No. 89/06 under Sections 25(1-B) a & 26, 35 of the Arms Act was registered whereunder after submission of charge-sheet, trial commenced and concluded in a manner which ultimately happens to be the subject matter of instant revision. 5. The lower court record suggest examination of altogether 7 PWs out of whom PW-1 is Bednath Pathak Baidik, PW-2 is Jagdish Sah, the dafadar who was accompanying PW-1 at the time of patrolling, PW-3 is Kamta Ray, Sergeant Major, PW-4 is Mahendra Hajara, Chaukidar, PWs-5 and 6 are Md. Salauddin and Md. Mahtab, seizure list witnesses who turned hostile and PW-7 is Chandra Bhushan Prasad, I.O. along with exhibit of so many documents including the material exhibit. The defence had also examined 2 DWs. DW-1, Hira Nand Yadav and DW-2, Rakesh Kumar Acharya. 6. It is the primary duty of the prosecution to prove its case. So far facts of the present case is concerned, two different sets of evidence are required to be placed at the hands of prosecution. The first one regarding knowledge relating to possession of country made loaded pistol by co-accused and 4 secondly, possession of live cartridge by the petitioner. 7. From the evidence of PW-1, the informant at para-9, he had categorically stated that there is number embedded over both the cartridges but from Ext-2 as well as seizure list, Ext-1, it is apparent that no such description is found incorporated thereunder with regard to seizure of cartridge from the possession of petitioner. From para-8 of his cross-examination the informant had admitted that he is unable to say which of the cartridge was seized from the possession of Pawan Kumar. The most surprising feature is apparent from para-3 as well as para-4 of the examination-in-chief of the PW-1 whereunder he had deposed, while producing the arms and ammunition before the court as material exhibit, that signatures of both the accused, witnesses along with his own are there. When single cartridge is alleged to be recovered from the possession of petitioner then as to how and in what circumstances his signature was used with regard to other cartridge as well as relating to fire arm and this part of informant makes the situation much more complex having a probability of plantation. 8. This fact is further found strengthened from own disclosure of PW-1 whereunder at para-6 of his cross-examination, he had claimed that first of all Niranjan Kumar Yadav was 5 apprehended by him and then thereafter petitioner, Pawan Kumar was apprehended by him, that means to say, both the accused were apprehended by PW-1. The aforesaid claim of the PW-1 is found totally dislodged by PW-2 at para-7 of his cross-examination whereunder he had stated that he caught hold of Pawan while Niranjan was apprehended by PW-1. 9. PW-4, the Choukidar had stated in para-4 of his cross-examination that both the accused were apprehended with the help of villagers by PW-1. He is unable to remember as to who had apprehended the accused persons. 10. PW-7, the I.O. under para-7 in his cross- examination had detailed the procedure whereunder seized articles were being kept at the Malkhana. In Para-13 of his cross- examination, he had clearly admitted that he failed to locate the number of the cartridge which was recovered from the possession of the petitioner. 11. From the format of charge, it is evident that petitioner along with Niranjan Kumar Yadav was charged for an offence punishable under Sections 25(1-B) a 35 & 26(1) of the Arms Act and they were accordingly, convicted. However, from the evidence of material witness, that means to say, PWs-1, 2 and 4, it is evident that they have not deposed on the point that the 6 possession of loaded arms by Niranjan Kumar Yadav was known to the petitioner since before. Section 35 of the Arms Act commands constructive liability and on account thereof, prosecution has to prove by such cogent and reliable evidence that possession of fire arm by one accused was within conscious knowledge of the other. In case, having failed on that very score, would not justify application of Section 35 of the Arms Act. As disclosed, neither the evidence so referred above nor the finding of the successive courts did justify application of Section 35 of the Arms Act. 12. Thus, giving anxious consideration of the totality of the event, the judgment of conviction and sentence recorded by successive courts below are not at all found supported with material available on record so far status of petitioner, Pawan Kumar is concerned. 13. Consequent thereupon, the same is set aside. Petition is allowed. 14. Since petitioner is in custody, he is directed to be released forthwith if not wanted in any other case. Patna High Court 3rd of September 2013. Md. Perwez Alam/AFR (Aditya Kumar Trivedi, J)