1.Jitendra Kumar @ Jitendra Kumar Gupta 2.Rajesh Oraon 3.Satyendra Paswan @ Satya Narayan Paswan v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 576 of 2007 --------- 1.Jitendra Kumar @ Jitendra Kumar Gupta 2.Rajesh Oraon 3.Satyendra Paswan @ Satya Narayan Paswan 4.Birendra Singh 5.Rajesh Singh ..… Appellants The State of Jharkhand Versus ….. Respondent With Criminal Appeal (S.J.) No. 677 of 2007 Rang Bahadur Singh ..… Appellant The State of Jharkhand Versus CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ….. Respondent ---------- For the Appellants For the State --------- : Mr. A.K. Kashyap, Advocate : Mr. Vandana Bharti, A.P.P. (In Cr.Appl.(S.J.) No. 677 of 2007) Mr. Rajesh Kumar, A.P.P. (In Cr.Appl.(S.J.) No. 576 of 2007) --------- ORAL JUDGMENT IN COURT 06/09.10.2023 Both the Criminal Appeals, i.e. Criminal Appeal (S.J.) No. 576 and 2007 and Criminal Appeal (S.J.) No. 677 of 2007 are heard together and disposed of together by this common judgment, as both the appeals arise from the judgment of conviction dated 10.05.2007 and sentence dated 14.05.2007 passed by Sri Ram Naresh Mishra, learned Additional District & Sessions Judge, F.T.C. No.II, Latehar in S.T. No. 98 of 2006, whereby all the appellants of Cr.Appeal (S.J.) No. 576 of 2007 and Cr.Appeal (S.J.) No. 677 of 2007 have been convicted and sentenced for the offence 2 under Section 399 of the Indian penal code to undergo R.I. for five years and to pay a fine of Rs.5,000/- each and in default S.I. for three month. The appellants have further been convicted for the offence under Section 402 of the I.P.C. and sentenced to undergo four years and to pay a fine of Rs.4,000/- each and in default S.I. for two months. The learned Court has further convicted the appellants for the offence under Section 25 (1- B)a/35 of the Arms Act and sentenced them to undergo R.I. for three years and to pay a fine of Rs. 3,000/- and in default S.I. for one month. The appellants have further been convicted for the offence under Section 26/35 of the Arms Act and sentenced to undergo R.I. for three years and to pay a fine of Rs. 3,000/- However, all the sentences have been ordered to run concurrently. 2. The above Criminal Appeals, i.e. Criminal Appeal (S.J.) No. 576 of 2007 and Criminal Appeal (S.J.) No. 677 of 2007 have been filed on behalf of the appellants, i.e. five appellants in Criminal Appeal (S.J.) No. 576 of 2007, namely Jitendra Kumar @ Jitendra Kumar Gupta, Rajesh Oraon, Satyendra Paswan @ Satya Narayan Paswan, Birendra Singh, Rajesh Singh, whereas there is a sole appellant, namely Rang Bahadur Singh in Criminal Appeal (S.J.) No. 677 of 2007. 3. The prosecution case, in brief, is that on 01.07.2006, the informant received secret information 3 that some persons are planning to commit dacoity. Thereafter, he along with the Dy.S.P., Headquarter, Latehar, Circle Inspector, Latehar and Members of the Armed Forces, namely Abe Nazar Lakra-Constable Driver, Hari Prasad Mahto-Constable, Manoj Kumar- Constable, Krishna Ram-Constable, Ram Dhani Ram- Constable, Chanchal Kumar Shekhar-Constable, Chandra Bose Kumar-Constable, Semon Kerketta- Constable, Bal Govind Singh-Constable, Maznu Ram- Constable proceeded for Nawadih and arrived at Nawadih, Kusum Tola, where they found that some miscreants have assembled near Mahua Tree. After seeing police party, they started fleeing away. Thereafter, the Informant along with the Dy. Superintend of Police, Inspector and the armed forces apprehended the miscreants and searched them in presence of two independent witnesses, namely Kamlesh Singh and Bhagwat Singh and on search one loaded pistol with .38 bore live cartridge was recovered from the possession of Rang Bahadur Singh, sole appellant in Criminal Appeal (S.J.) No. 677 of 2007. Also recovered one live cartridge from the possession of Satyender Paswan of .38 bore and one knife was found from the possession of Jitendra Kumar, i.e. Appellant No. 1 in Cr. Appeal (S.J.) No. 576 of 2007. One knife was also found from the possession of Birendra Singh, i.e. Appellant No.4 of Cr. Appeal (S.J.) No. 576 of 2007, however, nothing was recovered from co-accused Rajesh Oraon and Rajesh Singh. 4.
Legal Reasoning
Heard Mr. A.K. Kashyap, learned Sr. counsel for the appellants in both the cases, Mr. 4 Rajesh Kumar, learned A.P.P. in Criminal Appeal (S.J.) No. 576 of 2007 and Mrs. Vandana Bharti, learned A.P.P. for the State in Criminal Appeal (S.J.) No. 677 of 2007. 5. Learned counsel for the appellants has submitted that the impugned judgement of conviction and sentence passed by the learned Court below are illegal, arbitrary and not sustainable in the eye of law. It submitted that the allegations against the appellants are false and concocted. It is submitted that the independent witnesses Kamlesh Singh and Bhagwat Singh, in whose presence arms were recovered, were not examined by the prosecution. It is submitted that P.W. 1 to P.W. 4 and P.W.9 are the police personnel and hence, their evidence is not reliable as they are under the influence of police. It is submitted that P.W. 5 is the informant of this case, namely Ravindra Kumar Rai, Officer-in-Charge of Latehar, who has falsely implicated the appellants on mere suspicion. It is submitted that P.W.7, the Sargent Major is the Ballistic Expert of this case, who has proved the test report in favour of the prosecution. It is submitted that P.W. 8, namely Kamlesh Singh is the I.O. of this case, who had submitted chargesheet against all the appellants by merely completing formality. It is submitted that P.W. 10 is a formal witness who has merely proved the sanction order. It is submitted that P.W. 11 is the Judge-in-Charge- cum-Judicial Magistrate, Ist Class, Civil Court, Latehar, who has proved the statement of the seizure list witness Kamlesh Singh recorded under Section 5 164 Cr.P.C., however, the witness Kamlesh Singh has not been examined by the prosecution and hence the evidence of P.W. 11 is not relevant. It is submitted that in view of the above, the judgment of conviction and sentence may be set aside and both the criminal appeals may be allowed and the appellants may be acquitted. 6. Learned counsel for the appellants has placed reliance upon the judgment passed in the case of Union of India Versus Prafulla Kumar Samal and Another reported in (1979) 3 S.C.C. 4 at Para 9 and 10. 7. Mrs. Vandanan Bharti, learned A.P.P. appearing in Criminal Appeal (S.J.) No. 677 of 2007 has submitted that the impugned judgment of conviction and sentence passed by the learned Court below are fit and proper and no interference is required. It is submitted that all the appellants along with the sole appellant of Criminal Appeal (S.J.) No. 677 of 2007, namely Rang Bahadur Singh were caught red handed by the police. It is submitted that one pistol and cartridge was recovered from the possession of appellant Rang Bahadur Singh and thus, there is direct recovery from his possession. It is submitted that P.W. 1, P.W. 4 and P.W. 9 namely Hari Prasad Mahto-Constable, Krishna Ram-Constable and Niranjan Tiwary- Constable have supported the recovery of fire arms from the possessions of the accused persons as mentioned above. It is submitted that P.W. 5 is the informant of this case, who has fully supported the 6 case and has supported the prosecution case for apprehending the appellants including Rang Bahadur Singh, i.e. the sole appellant of Criminal Appeal (S.J.) No. 677 of 2007 with fire arms, i.e. one pistol and one live cartridge and has also supported the fact of recovery of two knives from the possession of two other appellants. It is submitted that mere non-examination of the prosecution witness is not fatal to the prosecution case. it is submitted that the P.W. 9 has produced the material exhibits, i.e. pistol and two live cartridges and two knives and thus, the prosecution has successfully proved the recovery of the pistol, two knives and two live cartridges from the possession of the appellants It is submitted that P.W. 8 is the I.O. of this case, who had submitted chargesheet against the appellants and had supported and corroborated the prosecution case and hence, no interference is required in the impugned judgment of conviction and sentence passed by the learned Court below. Hence, Criminal Appeal (S.J.) No. 677 of 2007 may be dismissed. 8. Mr. Rajesh Kumar, learned A.P.P. appearing in the Criminal Appeal (S.J.) No. 576 of 2007, after adopting the argument of Mrs. Vandana Bharti, learned A.P.P. in Criminal Appeal (S.J.) No. 677 of 2007, also submitted that the impugned judgment of conviction and sentence passed by the learned Court below is fit and proper and requires no interference. It is submitted that this is a case of planning dacoity in broad day light and all the appellants, along with Rang Bahadur Singh were 7 arrested with one pistol, two live cartridges and two knives and they had assembled at a lonely place to commit dacoity. It is submitted that P.W. 9 has produced the pistol, two live cartridges and two knives, whereas P.W. 10 has proved the sanction order. It is submitted that P.W.1, P.W.2, P.W. 3 and P.W.4 are the members of the raiding party and they had supported the prosecution case. Mr. Rajesh Kumar, learned A.P.P. has submitted that this Criminal Appeal may be dismissed. 9. Perused the Lower Court Record of these cases and considered the submission of both sides. 10. It transpires that the informant along with the Dy. Superintendent of Police and several police constables, as mentioned in the F.I.R., on receipt of secret information, have apprehended the appellants of Criminal Appeal (S.J.) No. 576 of 2007 and Criminal Appeal (S.J.) No. 677 of 2007. 11. It transpires that after completion of investigation the police had submitted chargesheet against the appellants under Section 399/402 of the I.P.C. and Section 25 (1-b) a/26 of the Arms Act on 30.8.2006 before the learned C.J.M., Latehar. Thereafter, the learned C.J.M., Latehar has taken cognizance under Sections 399/402 of the I.P.C. and Section 25 (1-b) a/26/35 on 30.08.2006 against this appellant. 12. After supplying the police papers to the appellants, charges were framed by Shri R.N. Mishra, Addl. District Judge (F.T.C.-II), Latehar against all the appellants for the offence under 8 Sections 399, 402 of the I.P.C. and Section 25(1-b) a/35 of the Arms Act and also Section 26/35 of the Arms Act and to which the appellants pleaded not guilty and claimed to be tried. 13. During trial the prosecution has got examined 11 witnesses, who are as follows:- (i) P.W.1 is Constable Hari Pd. Mahto, member of raiding Party (ii)P.W.2 is Constable Ram Dhani Ram, member of raiding party (iii)P.W. 3 is Manoj Kr., member of the raiding party (iv)P.W. 4 is Krishna Ram, member of the raiding (v) P.W. 5 is Ravindra Kr. Rai, O/C of Latehar P.S. and informant. (vi)P.W. 6 is Mrinal Kant Sandi, Circle Inspecter, Latehar, member of the raiding party (vii)P.W. 7 is Anand Shankar Prasad, Ballistic Expert, Sergant Major. (viii)P.W. 8 is Kamlesh Singh, who is the I.O. of this Case, (ix) P.W. 9 Niranjan Tiwary, Constable, produced the material Exts. (x) P.W. 10 is Lalan Kr., Assistant, Legal Cell, D.C. Office, Latehar, who proved the sanction order, (xi) P.W. 11 is Rakesh Kr. Mishra, the J.M., Ist Class, Latehar 14. Prosecution has got examined following documents as exhibits, which are as follows: (i) Ext.1 is the self-statement of S.I. Ravindra Kr. Rai (ii) Ext.2 is the seizure list (iii) Ext. 3 is the formal F.I.R. (iv) Ext.4 is the Expert report of the Sargent Major (v) Ext.5 is a challan (vi) Ext. 6 is the sanction order of D.M. Latehar (vii) Ext. 7 is the statement of witnesses u/s 164 Cr.P.C. 15. The prosecution has also proved the certain material Exhibits, which are as follows:- (i) Material Exhibit I is six round revolver, (ii)Material Exhibits II and II/A are the two cartridges (iii)Material Exhibits III to III /A are two knives. 9 16. Thereafter, the appellants had been examined under Section 313 Cr.P.C. by the learned Court below on 19.4.2007 and they denied the circumstances put forth before them. 17. No document has been examined by the defence as exhibit, however one defence witness was examined on behalf of appellant-Satyender Kumar Paswan. D.W. 1 is Prem Shankar Choudhary, who was examined as defence witness on behalf of appellant Satyender Kumar Paswan. 18. Defence has also got a certificate marked as Ext. A (with objection). One photocopy of the certificate of appointment of Satyendra Kr. Paswan as Agent by the Branch Manager Prabhu Prajapati of welfare Building and Estate Pvt. Ltd. is marked as Ext. A on behalf of accused Satyendra Kumar Paswan. 19. Thereafter, the learned Court below has convicted and sentenced the appellants on different counts as mentioned above. 20. It transpires from the Lower Court Record that one Kamlesh Singh was examined under Section 164 Cr.P.C. by the police on 05.7.2006. Although the prosecution has not examined the said witness Kamlesh Singh, who was not only the independent witness on the point of seizure of pistol, two cartridges and two knives, he was also nephew of one of the accused Birendra Singh. However, the prosecution has examined the Judicial Magistrate, i.e. P.W. 11 on the point of 10 recording statement under Section 164 Cr.P.C. of both the independent witnesses, namely Kamlesh Singh and Bhagwat Singh, who are witnesses on the point of seizure of one pistol, two live cartridges and two knives. 21. So far as the evidence of other prosecution witnesses is concerned, P.W. 1 is Constable No. 55, Hari Prasad Mahto, who stated during his evidence that the informant along with Dy.S.P.-Anand Joseph Tigga and Circle Inspector, Latehar-Mr. M.K. Sandi and Ravindra Kr. Rai, Officer-in-Charge of Latehar P.S. and other police constables had proceeded towards Nawadih and had seen six persons sitting there at around 11 p.m. and seeing the police party they started fleeing away, then they apprehended them and during interrogation they disclosed their names as Jitendra Kumar @ Jitendra Kumar Gupta, Rajesh Oraon, Satyendra Paswan @ Satya Narayan Paswan, Birendra Singh, Rajesh Singh [five appellants in Criminal Appeal (S.J.) No. 576 of 2007] and Rang Bahadur Singh [The sole appellant in Criminal Appeal (S.J.) No. 677 of 2007]. He further stated that on search one loaded pistol was recovered from the possession of Rang Bahadur from his waist and one .38 bore bullet was recovered from the possession of Satyendra Paswan as well as Jitendra Kumar and one knife from the possession of Birendra Singh, however, nothing was recovered from the possession of Rajeshwar Oraon and Rajesh. Thereafter, seizure list has been prepared in presence of two independent witnesses, namely Kamlesh Singh 11 and Bhagwat Singh and the accused persons were brought to the police station. During cross examination, he stated that only two persons had arrived there when the police party arrived at the place of occurrence and the accused persons started to flee on seeing the police party but they were apprehended. He further admitted in Para 9-10 of his cross-examination that the Officer-in-Charge had not been searched before searching the person of the accused persons. He also admitted that the seized articles were not sealed at the place of occurrence. He had denied that Appellant Satyendra Paswan was an agent of Welfare Scheme and he had gone to the place of occurrence for opening the account of the willing persons in the village. He further stated that he had not signed any paper. 22. Thus, on scrutinizing the evidence P.W. 1, it is evident that he was a member of the police party and stated that during investigation and search, the Dy.S.P.-Anand Joseph Tigga was present at the place of occurrence, however, it appears that said Dy.S.P.- Anand Joseph Tigga was not examined by the prosecution. Further, it is evident that incriminating materials were not sealed at the place of occurrence. Thus, the evidence of P.W. 1 cannot be relied upon as he was also under the influence of the Informant. 23. P.W. 2 is Ram Dhani Ram-A constable and member of the raiding party, who has also stated that the raiding party, consisting of Mr. Anand Joseph Tigga, Dy.S.P., Police Inspector-M.K. Sandi, Officer-in- 12 Charge-Ravinder Kumar Rai and other police personnel had proceeded towards the place of occurrence on receipt of secret informant of dacoity and saw six persons fleeing away on their arrival. However, they were apprehended and on search one loaded pistol with .38 bore live cartridge was recovered from the possession of Rang Bahadur Singh and a .38 bore live cartridge was recovered from the possession Jitendra Paswan and one knife each were recovered from the possession of Jitendra Kumar and Birendra Singh, however, nothing has been recovered from the possession of Rajesh Oraon and Rajesh Singh. During cross examination, he also stated that firstly only two persons have arrived at the place of occurrence when the police party had arrived and thereafter 10-15 villagers also came there but he is not aware of their identity and only the Officer-in- Charge can say. It is further stated at para 11 of his cross-examination that seized articles were not sealed by the Officer-in-Charge. He has also denied the suggestion that Satyendra Kumar Paswan was an Agent of welfare scheme and he has gone to the place of occurrence in search of willing persons for opening their accounts and he has denied the seizure of one hand bag and papers from the possession of Satyendra Paswan, i.e. the Appellant no. 3 of Criminal Appeal (S.J.) No. 576 of 2007. Thus, from the evidence of P.W.2, it is evident that he is also a police personnel and had admitted 13 that the seized articles were not sealed at the place of occurrence. Thus, his evidence is not trustworthy. 24. P.W.3 is Manoj Kumar, who also stated the same facts as stated by P.W. 1 and P.W. 2 and as such his evidence is not being repeated here. During cross-examination he also admitted that his statement was not recorded by the police. Therefore, the evidence of P.W. 3 is also not reliable. 25. P.W. 4 is Krishna Ram, who is a Constable and member of the raiding party, who has also stated that raid was conducted along with the Dy.S.P., the Circle Inspector, Officer-in-Charge and other police personnel and one pistol and one live cartridge were recovered from the possession of Rang Bahadur Singh while one cartridge was recovered from Satyendra Paswan and one knife each was recovered from the possession of Jitendra Kumar and Birendra Singh but nothing was recovered from the possession of other accused persons and at the time of preparation of seizure list, Kamlesh Singh and Bhagwat Singh had arrived. During cross examination, he stated that he had seen the preparation of seizure list, however, villagers Bhagwat Singh and Kamlesh Singh, i.e. the independent persons had not signed during his presence. He further admitted that his statement was not recorded by the police and he is giving evidence for the first time before the Court. Therefore, presence of P.W. 4 appears to be doubtful and as such his evidence is not reliable and he is under the influence of police. 14 26. P.W. 5 is Ravinder Kr. Rai, who is the Officer-in-Charge of Latehar P.S. and informant of this case, has stated during his evidence that he along with Dy.S.P. Anand Joseph Tigga, Police Inspector-M.K. Sandi and other police personnel had proceeded towards village Nawadih, Kusumtola and apprehended six persons who had assembled to commit dacoity and in presence of two independent witnesses Kamlesh Singh and Bhagwat Singh, the accused persons were searched and then one six round Desi revolver and one .38 bore cartridge was recovered from the possession of Rang Bahadur Singh, whereas one live cartridge of .38 bore was recovered from the possession of Satyendra Paswan, whereas one knife each was recovered from the possession of Jitendra Kumar and Birendra Singh, whereas nothing was recovered from the possession of Rajesh Oraon and Rajesh Singh. Thereafter, a seizure list was prepared and even the two independent witnesses had put their signature on the seizure list and case was handed over for investigation to Kamlesh Singh. He further stated that the accused persons disclosed before him that they were planning to commit a train dacoity. He has proved the written application marked as Ext.1, which is the self- statement of S.I. Ravindra Kr. Rai, Ext.2, which is the seizure list and Ext. 3, which is the formal F.I.R. 27. During cross examination he had described the place of occurrence and stated that after apprehending the accused persons, some other villagers had also arrived their, however, he had not 15 disclosed the name of any such villager. He further admitted that though one live cartridge of .38 bore was recovered from the possession of Satyendra Paswan but that cartridge could not be used, however, one fire arm was recovered from the possession of Rang Bahadur. He failed to say as to whether recovered .38 bore bullet was live or not as they did not keep the said .38 bore bullet. During further cross-examination he admitted that the seized revolver and live cartridge were not present in the Court below during his evidence before the Court below. He further admitted in para 21 of his cross-examination that if 2/6 persons of the village were sitting together, it will not constitute any offence. He also failed to disclose the name of the villages between Latehar to Kusumtoli, which are within a distance of 5-6 K.M. 28. Thus, from scrutinizing the evidence of P.W.5, i.e. the informant of this case, it is evident that he has arrested appellants on mere suspicion, however, his evidence will be again considered after the evidence of Sargeant Major and I.O. of this case. 29. P.W. 6 is Mrinal Kanti Sandi, who is the Circle Inspector, Latehar and a member of the raiding party, during his evidence has introduced the story of committing train dacoity by some of the miscreants and stated that he along with the Dy.S.P., Headquarter, the Officer-in-Charge and other police personnel had arrived at village Nawadih and on seeing the police party some persons started fleeing 16 away and they had apprehended six persons and they were searched in presence of two independent witnesses and on search one pistol and one .38 bore live cartridge were recovered from the possession of Rang Bahadur Singh and one .38 bore bullet was recovered from the possession of Satyender Paswan and two knives were recovered from the possession of two persons, whose name he could not remember and nothing was recovered from the possession of other two persons. He further could not say the name of other independent witness though he stated the name of one independent witness Kamlesh Singh. During cross examination he tried to assert the allegation of preparation for committing dacoity by the accused persons. He also denied the recovery of one bag and paper from the possession of Satyendra Paswan, i.e. Appellant No. 3 of Criminal Appeal (S.J.) No. 576 of 2007. He further stated that he had mentioned the name of the accused persons in his personal diary but the said personal diary has not been brought today before the court. Thus, from scrutinizing the evidence of P.W. 6 it would appear that he claimed to be present at the place of occurrence at the time of apprehending the accused persons but even could not say the place of seizure and could not say regarding the sealing of the seized articles. Thus, the evidence of P.W. 6 is not reliable. 30. P.W. 7 is Anand Shankar Prasad, the Sargeant Major and stated during his evidence that he had tested one desi pistol with barrel length of 8.5 17 cm, chamber length of 3.5 c.m and bridge to butt length of 15 c.m. and also stated that one .38 bore cartridge was tested and was found effective. However, these articles were brought pasted with plain paper by mentioning the name of police station, case number and date and he has proved the Test Report marked as Ext. 4. However, during his cross-examination he admitted that the seized revolver and cartridges were not given to him in sealed condition. Thus, from the evidence of P.W.7 it is evident that the articles given to the Sargeant Major for test were not in sealed condition and thus any report submitted by the Sargeant Major is not reliable as the same is in the teeth of the judgment of the Hon’ble Supreme Court. 31. P.W. 8 is Kamlesh Singh, the then Sub- Inspector, Latehar P.S., who is the I.O. of this case and stated that he was handed over this case by the Officer-in-Charge and he has supported and corroborated the prosecution case during his evidence and has stated that he had received sanction order from the office of D.C. and he had submitted chargesheet against the accused persons under Section 399/402 I.P.C. and 25 (1-b)a/26/35 of the Arms Act. 32. During cross-examination he admitted that he had not seized anything and the articles were handed over to him after seizure, which have been brought before the trial court. He further stated during cross examination that he had not got 18 recorded the statement of accused persons under Section 164 Cr.P.C. Thus, from the evidence of P.W. 8- i.e the I.O. of the case, it is clear that he had merely completed the formality of submitting chargesheet and had not recorded the statement of Dy.S.P.-Anand Joseph Tigga and had failed to state whether the seized fire arms were handed over to him in sealed condition or not. 33. P.W. 9 is Niranjan Tiwary, who is the Constable and had produced the Material Exhibits and had proved the material exhibits. Material Ext.I is one revolver of six round, he has further proved Material Ext.II and II/A which are two cartridges of .38 bore. He had further proved material exhibit III and III/A, which are two knives. During cross examination, he had admitted that he had brought the Material Exhibits from the Malkhana and he was handed over seized articles by the In-Charge of Malkhana but he has not disclosed the name of In-charge of Malkhana. 34. Thus, from the evidence of P.W.9, it is evident that he has brought the alleged seized articles before the Court below after the evidence of P.W. 8, i.e. the I.O. of this case, who had stated that the seized articles have been produced in the police station. Hence, the evidence of P.W.9 is not reliable. 35. P.W. 10 is an Assistant in the Legal Cell of the office of the Deputy Commissioner, who has proved the sanction order marked as Ext. 6. 19 36. P.W. 11 is Rakesh Kumar Mishra, learned Judge-in-Charge-cum-Judicial Magistrate, Civil Court, Latehar, who proved the statement of witness Kamlesh Singh recorded under Section 164 Cr.P.C. marked as Exhibit 7. Hence, the evidence of P.W. 11 is not relevant as the witness Kamlesh Singh, whose statement was recorded under Section 164 Cr.P.C., has not turned up for his evidence before the Court below. 37. So far as evidence of defence witness is concerned, D.W. 1 is Prem Shankar Choudhary, who stated that Satyendra Kumar Paswan, who was appointed as an Agent by one Arun Kumar Chowdhary on 17.3.2009 and has proved the certificate of Satyendra Kumar Paswan marked as Ext. A. 38. Exhibit A is the certificate containing photograph of Satyendra Kumar Paswan with the signature of Shri Arun Kumar Choudhary. He further stated that Appellant No 3, Satyender Paswan was on duty and his duty was to move from village to village to procure money from the villagers and deposit the collected amount in the Daltonganj Branch and he was collecting money in the field. During cross-examination he asserted and stated that the certificate contains the signature and seal of the Branch Manager, i.e. Arun Kumar Chowdhary. He also stated that Shri Arun Kumar 20 Chowdhary is the organizer of Welfare Institute and one Prabhuji was the Manager of Daltonganj Branch and the certificate contained the writing of said Prabhuji. 39. Thus, from the evidence of D.W.1, it would appear that Satyendra Kumar Paswan was appointed as an Agent of Welfare Institute and his duty was to collect money from the villagers. 40. However, the Court below has not considered the defence of Satyendra Kumar Paswan. 41. Thus, it transpires that the Court below has not considered the evidence of defence witness, although it is settled in the judgments rendered by the Hon’ble Supreme Court in the case of STATE OF U.P. Versus BABU RAM reported in (2000) 4 S.C.C. 515, at Para 23 that evidence of defence witnesses has to be considered at par with the prosecution witnesses: 42. It has been held by the Hon’ble Supreme Court in the case of STATE OF U.P. Versus BABU RAM reported in (2000) 4 S.C.C. 515, at Para 23 as follows: “Para 23:- Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any prediction or bias. No witness is entitled to get better treatment merely because he was examined as prosecution witness or even as a court witness. It is Judicial scrutiny which is warranted in respect of the depositions of 21 all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.” 43. Likewise, it has also been held by the Hon’ble Supreme Court in the case of MUNSHI PRASAD AND OTHERS Versus STATE OF BIHAR reported in (2002) 1 SCC 351, at Para 3 as follows:- “Para 3:-………………………………………… ……………………………………………………. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution-a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors’ witnesses.” 44. It is further evident that the independent witnesses Bhagwat Singh and Kamlesh Singh, who were the witnesses on the point of seizure of the seized articles, had not been examined by the prosecution. 45. It further is evident that the prosecution has failed to establish the proper seizure of the pistol and two live cartridges giving rise to a suspicion that the seized materials were not sealed at the place of occurrence. 46. It has been held by the Hon’ble Supreme Court in the case of Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217 at paragraph No.7 as follows:- 22 “Para.7: The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW4 that he did not test-fire the revolver. (Emphasis supplied) 47. Thus, it is evident that the non-sealing of the seized articles at the spot is a serious infirmity because the possibility of tampering with the same cannot be ruled out and as such, it is evident that in the present case the impugned judgment passed by the learned Court below, without considering the fact that the prosecution has failed to prove proper seizure of the materials seized from the place of occurrence, is in complete violation of the judgment passed by the Hon’ble Supreme Court in the aforesaid case of Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217. 48. Likewise, it has been held by the Hon’in the case of Sahib Singh vrs. State of Punjab 23 reported in 1996 (11) SCC 685 at Paragraph No.6 as follows:- in each of “Para.6:- Having gone through the record we the above find much substance contentions. Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of its admissibility. We next find from the record that the arms and ammunition allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by PW 3 till it was sent to the Arms Expert for testing through Head Constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.” the police officer, though not 49. It has also been held in the case of Salim Akhtar @ Mota reported in (2003) 5 SCC 499 and paragraph No.9 of the said judgment is as follows:- Para.9:- The evidence on record clearly shows that the pistol alleged to have been recovered from the polythene bag which was allegedly taken out from the mud by the appellant was not sealed on the spot. PW 1 in his cross-examination has stated that the 24 pistol was not sealed as it was factory-made and in the recovery memo its "number" or "make" was not written as the same was not clear and legible. However, the cartridges and bomb and RDX were sealed. Similar statement has been given by PW 2 S.N. Tripathi and PW 4 S.P. Sharma that at the time when the pistol was deposited in the malkhana, the same had not been sealed. In the FIR, no details have been given to fix the identity of the pistol. PW 4 has stated that the same was of Chinese-make while PW 6 Tej Pal Sharma, Head Constable of PS Lisari Gate, where the recovered articles were deposited, has stated that the same was of English-make. In Amarjit Singh v. State of Punjab¹ and Sahib Singh v. State of Punjab it has been held that the possibility of tampering cannot be ruled out where the recovered articles were not sealed on the spot. We are little surprised that though the 7 cartridges were sealed but the most important object, namely, the pistol was not sealed on the spot and the same was deposited as it is in the police station and, thereafter at the malkhana. In our opinion the fact that the pistol alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number nor its make etc. to fix its identity was mentioned in the recovery memo or in the FIR, raises considerable doubt regarding the factum of recovery. 23. Thereafter, in view of the discussion made above, this case appears to be a case of false implication. 24. Considering the fact that the recovery is doubtful, the judgement dated 07.09.2017 passed by the learned Sessions Judge, Hazaribag in Cr. Appeal No.42/2016 and the judgment of conviction and order of sentence dated 09.09.2016 passed by Miss Saudamini Singh, in Judicial Magistrate, 1st Class, Hazaribag connection with Barhi P.S. Case No.194/2008, corresponding (T.R No.1149 of 2016) are set-aside in the interest of justice and the petitioner namely, Mukesh Kumar @ Mukesh Kumar Mahto is acquitted for the offence under Sections 25(1-B)a/26/35 of the Arms Act and the petitioner namely, Mukesh Kumar @ Mukesh Kumar Mahto is also discharged from the liability of his bail bonds. to G.R Case No.3346/2008 25 50. It has been held in by the Hon’ble Supreme Court in the case of CHATURI YADAV AND OTHERS Vs. STATE OF BIHAR reported in (1979) 3 SCC 430 at Paragraph No. 4 as follows: “4. The courts below have drawn inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned Counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court.” for 26 51. From the evidence of prosecution witnesses it is evident that the appellants had merely assembled near a tree and had started fleeing away after seeing the police party. It may happen that persons may try to scatter on seeing the police party, however, the Police Party had apprehended the appellants on mere suspicion of preparation to commit dacoity. 52. The prosecution has further failed to show as to which train the appellant wanted to commit dacoity and they are not clear about the time of coming of such a train and therefore, it appears that there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same and in absence of any such evidence, the learned Court below has erred in convicting the appellants for the offence under Sections 399 and 402 of the I.P.C. as it has been held by the Hon’ble Supreme Court in the case of CHATURI YADAV AND OTHERS Vs. STATE OF BIHAR reported in (1979) 3 SCC 430 at Paragraph No. 4 that the mere fact that the appellants were found at a particular place at a particular time, does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object in absence of any legal evidence. 53. In view of the discussions made above and the in the light of the judgments of the Hon’ble Supreme Court, the judgment of conviction dated 27 10.05.2007 and sentence dated 14.05.2007 passed by Sri Ram Naresh Mishra, learned Additional District & Sessions Judge, F.T.C. No.II, Latehar in S.T. No. 98 of 2006 are set aside and all the appellants of Ciminal Appeal (S.J.) No. 576 of 2007, i.e. 1Jitendra Kumar @ Jitendra Kumar Gupta, Rajesh Oraon, Satyendra Paswan @ Satya Narayan Paswan, Birendra Singh,Rajesh Singh and the sole appellant of Criminal Appeal (S.J.) No. 677 of 2007, namely Rang Bahadur Singh are acquitted for the offences under Section 399 and Section 402 of the Indian penal Code and they are also acquitted for the offence under Section 25 (1-B)a/35 of the Arms Act and Section 26/35 of the Arms Act and the appellants, namely Jitendra Kumar @ Jitendra Kumar Gupta, Rajesh Oraon, Satyendra Paswan @ Satya Narayan Paswan, Birendra Singh, Rajesh Singh and Rang Bahadur Singh are also discharged from the liabilities of their respective bail bonds. 54. Thus, both Cr.Appl. (S.J.) No. 576 of 2007 and Cr.Appl.(S.J.) No. 677 of 2007 are allowed. 55. Let the entire Original Lower Court Record be sent to the learned Court below at once. Jharkhand High Court, Ranchi Judgment on 9th October, 2023 A.F.R./s.m. (Sanjay Prasad, J.)