High Court · 2012

This appeal is directed against the judgment and order dated 05-08-2005 passed by the learned Ad hoc Addl. Sessions Judge (Fast Track Court) Hojai, San kardev Nagar in Sessions Case No.198 (N) 04 convicting the accused appellant (Na nda Seal) under Section 25(I-B) of the Arms Act and sentencing him to undergo si mple imprisonment for one year and also to pay a fine of Rs.500/- in default, f urther simple imprisonment for one month. The judgment and order passed by the t rial Court has been challenged in this appeal. 2]. The prosecution case, in brief, is that: On 22-08-2002 at about 10.30 P.M., some miscreants entered into H awaipur Forest Reserve to remove forest trees. When the Forest protection force confronted them, one of the miscreants was caught by the Forest Protection Force and he disclosed the names of other 8 accused persons, who were involved in the offence. Shri AK Das, Forest Guard of Laskarpathar Forest Camp lodged an FIR. The police, on receipt of the FIR, registered a case and on completion of the in vestigation, submitted the charge sheet against the present accused appellant Na nda Seal, Rofikuddin, Md. Nena, Md. Latib, Md. Foijul, Md. Rofique and Md. Junal under Sections 147/148/149/352/353/307 IPC and 25 (1) (a) of the Arms Act read with Section 24/25 of Assam Forest Regulation. The 5 (five) accused were found absconding and hence the case against them was splitted. The prima facie materi al under Section 147/353/307 IPC read with Section 24/25 of the Assam Forest Reg ulation was found against all the accused persons. The present accused appellan t was also charged under Section 25(1) (a) of the Arms Act. 3]. During trial, the prosecution examined 5 witnesses. The accused person s in their statement under Section 313 Cr.P.C. denied the allegations levelled a gainst them and pleaded that they are innocent. No defence evidence was adduced . 4]. On completion of trial, the accused Sahabuddin was acquitted and set at liberty. The accused Rofik Uddin and the present accused appellant Nanda Seal were acquitted from the charge under Section 353/147/307 IPC read with Section 2 4/25 of the Assam Forest Regulation. The present accused appellant was found gui lty under Section 25 (1-B) of the Arms Act and accordingly he was convicted and sentenced at stated earlier. I have heard Mr. I. Uddin, learned counsel appearing on behalf of the ap 5]. pellant and Mr. K. Munir, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. It is submitted by the learned counsel appearing on behalf of th 6] e appellant that the charge under Section 25 (1-A) of the Arms Act was framed ag ainst the appellant whereas the accused has been convicted under Section 25(1-B) of the Arms Act. Therefore, the conviction is liable to be set aside. It is f urther submitted by the learned counsel for the appellant that no arm was recove red from the conscious possession of the accused. Moreover, the independent witn ess examined by the prosecution did not support the prosecution case. Per contra, the learned Addl. P.P., Mr. Munir has submitted that Sectio 7]. n 22 of the Code of Criminal Procedure empowered the Court to pass the judgment and order of conviction and sentence where the punishment is lesser than the off ence of the charge. The official witnesses clearly supported the prosecution an d there is no reason why the evidence of official witnesses should be discarded. 8]. PW-4, Sri Krishna Das, lodged the complaint and he deposed that on 22-08 -2002 at 10.30 P.M., he along with six constables were while on a patrolling dut y within Hawaipur Forest Reserve area at about 12.30 P.M., they heard the sound of the fallen trees and they went to the place of occurrence. Some of the miscr eants open fired upon them and in due course one of the wood cutters was caught, who was identified in the dock as Rofik Uddin. During interrogation, he disclo sed the seven others who were involved in the offence. Rofik Uddin also disclose d that Nanda Seal (present accused appellant) was carrying the gun. The house o f the accused Nanda Seal was searched by the investigating officer (PW-1) on 24- 08-2002. At the time of search, the present accused appellant was not present i n the house. However, one handmade gun was recovered, which was kept behind an almirah. The gun was seized in present of independent witness. 9]. Abdul Nur (PW-2) was an independent witness. He admitted that police se arched the house of the accused appellant. He also admitted his signature on the seizure list but denied anything seized by the police in his presence. He was d eclared hostile by the prosecution. PW-3, Ari Anil Bhagawati, also admitted tha t he was present with PW-2, when the Investigating Officer was searching the hou se of the accused appellant. But he denied that the gun was seized in his prese nce. However, he admitted that the police recovered a handmade gun, which was ke pt behind the almirah. He admitted that he singed on the seizure list. The seize d gun was examined by the PW-5, the armourer, who submitted his report that the gun was handmade, serviceable in nature and in dangerous to human life. The learned trial Court relied upon the case of Sahib Singh Vs. State o 10]. f Punjab, reported in 1997 SC CRL (J) 2978 that even if, it may so happen that n o person is available, or, even if, available is not willing to be a party to th e said search or it may also be that after joining the search, such persons late r on turn hostile any of these eventualities, the evidence of the police officer s, who conducted the search can not be disbelieved solely on the ground that no independent and respectable person witness was examined to prove the search but there must be an attempt on the part of the police to join him in the search. (cid:29) 11]. In this case, the police searched the house of the accused appellant i n presence of independent witnesses, although, PW-2 was turned hostile to the pr osecution, he corroborated the fact that police searched the house of the presen t accused appellant in his presence. He also admitted signature on the seizure list of the fire arm, which was seized by the police. The fact remains that the fire arm was recovered from the house of the present accused appellant. No stat ement or explanation was recorded how the fire arm came to the house of the accu sed appellant. The accused failed to give an explanation as regards the possessi on of the fire arm. The learned trial Court has discussed all the aspects elabo rately. There is nothing to interfere with the findings of the learned trial Cou rt. 12]. In the result, the judgment and order 05-08-2005 passed by the learned Ad hoc Addl. Sessions Judge (Fast Track Court) Hojai, Sankardev Nagar in Sessions Case No.198 (N) 04 convicting the accused appellant (Nanda Seal) und er Section 25(I-B) of the Arms Act is upheld. The bail bond stands discharged. 13]. l Court within a period of one month to serve the remaining period of sentence. The accused appellant is directed to surrender before the learned tria 14]. urt below. Send down the LCR along with a copy of this judgment and order to the co