Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.976 of 2012 ====================================================== Sudarshan Nonia Son Of Late Inaru Nonia Resident Of Village-Siyarua Tola, Police Station-Sanjhauli, District-Rohtas At Sasaram. The State Of Bihar. Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ramchandra Singh, Advocate. For the Respondent/s : Mr. Md. Arif, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 7 26-08-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. There happens to be inordinate delay in filing of this revision petition and for that I.A.No.1584 of 2012 has been filed on behalf of the petitioner praying therein to condone delay on the ground innumerated therein. In ordinary course of nature, the same should not have condoned but taking into account the fact that petitioner was under custody, during the intervening period in connection with Sanjhauli P.S.Case No.48 of 2008 and was not remanded in this case even after dismissal of the appeal, as such, the delay in filing the revision petition is being condoned. 3. Petitioner Sudarshan Nonia who has been found guilty for an offence punishable under Section 25(1-b)a 35, 26/35, of the
Legal Reasoning
Patna High Court CR. REV. No.976 of 2012 (7) dt.26-08-2013 2 Arms Act and further been directed to undergo R.I. for two years as well as also slapped with fine appertaining to Rs.2,000/- in default thereof to undergo S.I. of two months additionally, under Section 25(1B)a/35 of the Arms Act, to undergo R.I. for one year as well as also fined of Rs.1,000/- in default thereof to undergo S.I. for one month additionally u/S 26/35 of the Arms Act with the further direction to run the sentences concurrently vide judgment
Legal Reasoning
dated 30.10.2007 passed by Sri Ramchandra Prasad, Judicial Magistrate, Ist Class, Bikramganj in G.R.No.667 of 2005 which has been found concurred vide judgment dated 30.05.2008 passed by Sessions Judge, Rohtas, Sasaram in Cr.Appeal No.92 of 2007 have been put under challenge before this Court under instant Cr.Revision. 4. It has been submitted on behalf of the petitioner that complicity of petitioner in the present offence on bare perusal of the allegation speaks false implication. It has also been submitted that there happens to be recovery of one live cartridge of .303 bore as well as three empty cartridges of .315 bore which, in absence of fire arm happens to be worthless and the manner of recovery, so suggested, gives a clear picture of plantation. It has also been submitted that though the ballistic report is an exhibit but non- examination thereof has virtually prejudiced the interest of the Patna High Court CR. REV. No.976 of 2012 (7) dt.26-08-2013 3 petitioner as he has been deprived of valuable right to cross- examine the witnesses and further to explicit from his mouth whether the cartridges so recovered happens to be within the ambit of Arms Act. It has also been submitted that seizure list witnesses have turned hostile on account thereof, the recovery has become doubtful. It has also been submitted that there happens to be inconsistently amongst the evidence of the P.Ws. as well as their evidence happens to be full of improbability. So submitted that the findings recorded by the successive court are fit to be set aside. 5. The learned Additional P.P. refuted the submissions and submitted that there happens to be no absurdity in the judgment of the successive courts on account of which there happens to be no opportunity left for interference under revisional jurisdiction. 6. P.W.1 Nand Kishore Choubey along with police personnel while were on patrolling to apprehend the absconders, and reached at village-Siyaruan, they had gone to Shiv temple where three persons were found sleeping, got them awaken searched and during said course, it has been alleged that from possession of Amawash Nonia, a country made loaded pistol was recovered, from the possession of Kandelal Sah one Bandoliar having two live cartridges has been recovered while from Patna High Court CR. REV. No.976 of 2012 (7) dt.26-08-2013 4 possession of petitioner one live cartridge and three empty cartridges were recovered for which seizure list was prepared and consequent thereupon having the case registered followed with investigation, chargesheet was submitted whereupon trial commenced and concluded in a manner happens to be under challenge. 7. Lower Court Record divulges examination of six witnesses including the I.O. as well as exhibit of the documentary evidence along with the material exhibits. 8. From the evidence of the P.W.1, it is evident that material exhibit was produced through him which was wrapped and sealed in red cloth. During cross-examination at para-14, he has admitted that there was no case number affixed over the cartridge. Even, during examination-in-chief, this P.W.1 had not disclosed that after recovery of the aforesaid fire arm and ammunition was sealed nor disclosed that any sort of identification mark was put over the same. P.W.5 Deopujan Dubey who was one of the member of the raiding party as well as was investigating officer had not disclosed in his examination-in-chief that he was ever handed over with the seized article in wrapped and sealed condition by the informant nor he himself during course of investigation sealed the same. During cross-examination at para- Patna High Court CR. REV. No.976 of 2012 (7) dt.26-08-2013 5 85 he has stated that the cartridge was not at all sealed. In para-86, he had stated that he has got no knowledge with regard to the writing made over the cloth by which the seized article was wrapped. In para-87, he had also stated that no paper was affixed over seized arms. 9. In the aforesaid background how the arms and ammunition were wrapped and sealed and how it was produced in the court and by whom the aforesaid event was facilitated when the I.O. himself disowned the same, remains under mystery and on account of lapses on the part of the prosecution on this score gives a flavour of false implication. Not only this, having absence of connectivity with the arms so recovered with the material exhibit during course of evidence is another circumstance which creates doubt with regard to genuineness of the prosecution version. 10. Now coming to application of Section 35 of the Arms Act, it was incumbent upon the prosecution to suggest that at least all the accused persons acknowledged with possession by each other. On this score also, there happens to be failure on the part of the prosecution on having complete absence of evidence indicating such theme. As such, the application of Section 35 of the Arms Act is not at all found to be substantiated. 11. Now coming to question of recovery, again it gives an Patna High Court CR. REV. No.976 of 2012 (7) dt.26-08-2013 6 improbable story because of the fact that as per seizure list, the same was prepared on 26.09.2005(over writing) at 4.30 P.M. while fardbeyan was recorded at 5.30 A.M. From the fardbeyan, it is also evident that prosecution had not shown presence of the seizure list witnesses in whose presence recovery of fire arms ammunition was made at the Shiv Temple lying at a lonely place, was also matter of concern and that happens to be reason behind that P.W.1 during his cross-examination at para-4 had stated that the seizure list witnesses were along with him while in the same stroke at para-39 he had stated that he had not gone along with witnesses at the P.O. The cumulative effect, in the aforesaid background dent upon genuineness of the prosecution version. Consequent thereupon, the successive judgment relating to petitioner Sudarshan Nonia is set aside. Petition is allowed. Petitioner is under custody, hence directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-