High Court · 2011

represented by Mr. B.S. Sinha, the Addl. Public Prosecutor.

2. This Appeal is presented against the judgment and order dated 26 .8.2003 in Sessions Case No. 29(N)/2003 rendered by the learned Ad hoc Addl. Se ssions Judge, Hojai, whereby the accused is found guilty under Section 25(I)(A) of the Arms Act, 1959 and was sentenced to suffer R.I. for 3 years and fine of R s.1,000/- and in default, further R.I. for 3 months. 3. According to the prosecution story, at about 11 am on 31.12.1999 , the police receiving secret information about presence of the appellant who wa s wanted in connection with the Murajhar Police Station Case No. 187/1998, made G.D. entry about the information, rushed to the Devasthan market and apprehended the accused. The accused was then searched and a handmade pistol with live cart ridges was recovered from his possession which were seized by the police, in pre sence of witnesses. Accordingly on written information of the O.C., the Murajhar Police Station Case No. 200/1999 under Section 121(A)/122 of IPC read with Sect ion 25(I)(a)/27 of the Arms Act was registered. The seized weapon was sent to t he police armourer who reported that, it was a serviceable weapon. When the accused denied the charge framed under Section 25(I)(a 4. )/27 of the Arms Act, the trial commenced and 6 prosecution witnesses were pre sented whereas 2 witnesses were produced by the defence. 5. Considering that it is a conviction for illegal possession of ar ms, it would be appropriate to first take note of the evidence of the 3 seizure witnesses. 6.1 P.W.1, Md. Ahmed Ali stated that police party headed by the In-c harge of the Devasthan police outpost, after apprehending the accused who was we aring a lungi and a shirt, recovered a pistol with 3 loaded cartridges hidden un der the lungi, worn by the accused. In his cross-examination, the witness stated that the seizure list of the seized weapon was prepared in the market itself, b y bringing a table and a chair from a nearby house of a Bengali person. The witn ess however stated that the O.C. had not sealed the seized pistol and the cartri dges, in his presence. 6.2 P.W.2, Md. Abdul Wahid is the second seizure witness who stated that the seized pistol was made of iron. He testified about the political rivalr y between the appellant and the prosecution witness No.3 Tayabur Rahman Laskar @ Taiyabur Rahman. The witness however stated that the police prepared the seizur e report while standing, at the place of occurrence. 6.3 P.W.3 Tayabur Rahman Laskar @ Taiyabur Rahman stated that an iro n pistol with one cartridge in it, was recovered from the possession of the accu sed. But while examining the Pistol (Exbt.1) produced in the Court, the witness agreed that part of the Exbt.1 weapon is wooden. He too admitted that the police had not sealed the seized pistol and cartridges at the time of seizure. The wit ness conceded of his rivalry with the appellant as the appellant as an executive member of the A.G.P. party, had arranged for expulsion of the witness from the party. P.W.3 in his cross evidence admitted that accused had entangled him earli er, in another criminal case. 6.4 P.W.4, Shri Asim Kr. Nath was the officer-in-charge of the Muraj har police outpost . On 19.7.2000, after receiving secret information about the presence of the appellant who was wanted in an earlier police case, the O.C. alo ng with some police constables went in search of the accused to Debasthan market . There the accused was apprehended and a pistol kept hidden under the lungi wor n by the accused was recovered with live ammunition. The next day, a written F.I .R. was lodged in the police station by the O.C. According to the police officer , the seizure list was prepared on a sheet of paper while standing. The witness didn’t specify as to whether the seized weapon was made entirely of iron or was made with wood and iron. The officer admitted that he didn’t obtain the signatur e of any witnesses at the place of occurrence. More significantly, he conceded i n his cross evidence that the seized weapon was not packed and sealed and it was kept without any seal, in the Malkhana of the Murajhar police station. He admi tted that the details of the recovered pistol and the cartridges were not specif ied by him, in the seizure list. P.W.5, Andal Daimary is a police Havildar who was posted as a ar 7. mourer in the 9th Assam Police Battalion . In his cross-examination, he stated t hat the pistol and the ammunition were sent to him in an unsealed packet. 8.1 D.W.1, Shri Kanchan Kr. Debnath is the owner of a pharmacy at De basthan market where the appellant was allegedly apprehended and searched. Accor ding to this witness, the appellant was beaten up by P.W.1, P.W.2 and P.W.3 in A taur’s hotel located near his pharmacy. At that time the accused was wearing a h alf pant. D.W.2 testified that the police didn’t recover anything from the accus ed. The witness further stated that only the constables on duty at the market ha d taken away the accused and the O.C. was not present at the Debasthan market. 8.2 The appellant examined himself as D.W.2 and stated that because of political rivalry, a false case was foisted on him by P.W.3 Tayabur Rahaman, P.W.2 Md. Abdul Wahid and P.W.1 Md. Ahmed Ali. He categorically denied that any arms and ammunition were recovered from his possession. 9.1 On careful analysis of the evidence, several discrepancies are s een in the testimony of the prosecution witnesses. While P.W.1 stated that the s eizure memo was prepared in the market by brining a table and a chair from a nea rby residence, the police officer himself had stated that he prepared the seizur e list while standing in the market area. Similarly P.W.2 also stated that no ch air and table were available at the place, where the recovery of weapon was made from the accused’s possession. From the evidence of O.C. of the Debasthan police outpost (P.W.4 9.2 ) it is clear that he didn’t pack or seal the seized weapon and signatures of th e witnesses were not obtained at the place of seizure. P.W.1 and P.W.3 had also admitted that the seized weapon was not sealed after the seizure was made. Even the police armourer to whom the weapon was sent for testing had admitted in his evidence that, the weapon and the cartridges were not sent to him in a sealed pa cket. 10. According to the D.W.1, the accused was wearing a half pant wher eas the prosecution witnesses had stated that he was wearing a lungi. It further appears from the defence witness that the P.W.1, P.W.2 & P.W.3 were beating up the appellant in Ataur’s hotel and only thereafter the constables on duty in the market area had taken the appellant, in to their custody. The admission of the officer-in-charge of the Debasthan police o 11. utpost that he didn’t seal the seized weapon and didn’t also obtain the signatur es of witnesses at the place of seizure shows that, the recovery was made in vio lation of the laid down procedure. More importantly, it can’t be accepted with a ll certainty that the Exbt.1 weapon was the one which was actually seized from t he possession of the accused in the Debashthan market. The police armourer also stated that the weapon sent for his examination was not sealed.

12. In view of the serious discrepancy in the testimony of the prose cution witnesses, who stated that an iron pistol was seized and the Exbt.1 descr iption which shows that seized weapon was partly made of wood, it is difficult t o conclude beyond all reasonable doubt that, the weapon witnessed to be seized b y P.W.1, P.W.2 and P.W.3 (Exbt.1) was actually seized from the possession of the accused. If the weapon was not sealed after seizure and signatures of the witnesses were not obtained at the place of seizure, it is difficult to accept that Exbt.1 weapon was actually recovered from the possession of the appellant. Because of the discrepancy on the description of the weapon (wooden or iron made ), it can’t be ruled out that Exbt.1 was not recovered from the possession of th e accused. 13. Furthermore, the testimony of the prosecution witnesses is confl icting on the time and place when the seizure memo was prepared and it is also d oubtful whether the O.C. of the Murajahar police station was really present at t he time of seizure and had prepared the seizure memo, in the market place itself . 14. Considering the loopholes in the evidence, I feel that it would be unsafe to sustain the conviction on the basis of such inconsistent and contra dictory evidence of the prosecution witnesses. Accordingly this Appeal is allowe d by giving the benefit of doubt to the accused appellant. The Impugned judgment dated 26.8.2003 in Sessions Case No.29(N)/2003 is accordingly set aside and qua shed. As the accused appellant is on bail, his bail bond stands discharged. The LCRs be returned forthwith.