Birsa Kandir … v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.104 of 2021 Birsa Kandir …… Petitioner Versus The State of Jharkhand ……. Opp. Party --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State ---------- : Mr. Amrendra Kumar, Advocate : Mr. Saket Kumar, APP ----------- By Oral Order in Court 06/Dated: 21st September, 2023 This Criminal Revision has been filed on behalf of the petitioner challenging the judgment dated 03.03.2020 passed in Cr. Appeal No.03 of 2016 by learned District and Additional Sessions Judge-II, Khunti by which the Criminal Appeal preferred by the petitioner has been dismissed with modification in sentence from R.I for two years to R.I for one year although the learned the judgment of conviction
Legal Reasoning
and order of sentence dated 22.01.2016 passed by Sri Rajendra Kumar Sinha, learned SDJM, Khunti has convicted the petitioner in connection with G.R. No.39/2011 (T.R. No.47/2016) for the offence under Sections of the Arms Act and sentenced him to undergo R.I for two 25(1-B)a and 26(i) years and two years each respectively and also directed to pay fine of Rs.2,000/- and Rs.2,000/- each respectively. 2. Learned counsel for the petitioner has submitted that the impugned judgments and order passed by the learned court below are illegal and not sustainable in the eye of law. It is submitted that the petitioner has been falsely implicated and arrested merely on suspicion. It is submitted that the police has implicated on the alleged recovery of one pistol and one cartridge. It is submitted that no independent witness has been examined. It is submitted that 2 all the witnesses are police personnel and hence the impugned judgments and order may be set aside. Alternatively, it is submitted that the petitioner has remained in custody from 31.01.2011 till 21.06.2011 and after dismissal of the appeal the petitioner surrendered before the court below on 29.01.2021 and he was directed to be released on bail by the Co- ordinate Bench of this Court vide order dated 13.07.2021 and thus he has remained in custody for around 11 months and hence the period of sentence undergone by him may be treated as period of sentence and hence lenient view may be taken. 3. On the other hand, learned APP appearing for the State has opposed and submitted that the impugned judgments and order passed by the learned court below are fit and proper and hence no interference is required. It is submitted that the petitioner had been arrested along with one pistol and one cartridge. It is submitted that the P.W-1 to P.W-4 namely Kristofer Dungdung, Satish Kumar Oraon, Bhola Sah, Rajkeshwar Kujur are the police personnels and they have fully supported the recovery of pistol and cartridge from the possession of the petitioner whereas P.W-5 namely Manoj Kumar is the Sergeant Major who had recovered the pistol and submitted before the Court. It is submitted that the P.W-6 namely Birsa Gadi is the Informant and P.W-7 namely Sripat Ram is the I/O who has also supported and corroborated the prosecution case and hence there is no illegality in the impugned judgments. 4. Perused the Lower Court Records of this case and considered the submissions of the learned counsel for both the sides. 5. It transpires that while moving around in the night the petitioner was already arrested with Pistol and one Cartridge of .303 Bore. However, it is evident from the F.I.R that the pistol recovered from the petitioner was not sealed on the spot. 3 The police after making investigation, has submitted charge sheet against the petitioner- Birsa Kandir under Sections 25(1-B)a and 26(i) of the Arms Act and cognizance has been taken against him. 6. After supplying the police papers to the petitioner, the charges were framed against the petitioner by the learned SDJM, Khunti on 21.04.2011 under Sections 25(1-B)a and 26(i) of the Arms Act and to which the petitioner pleaded not guilty and claimed to be tried. 7. During trial the prosecution has got examined seven (07) witnesses, who are as follows:- P.W-1 is Kristofer Dungdung, (i) (ii) P.W-2 is Satish Kumar Oraon, (iii) P.W-3 is Bhola Sah, (iv) P.W-4 is Rajkeshwar Kujur, (v) (vi) P.W-6 is Birsa Gadi i.e. the Informant, (vii) P.W-7 is Sripat Ram i.e. the I.O. P.W-5 is Manoj Kumar i.e. the Sergeant Major, 8. During trial the prosecution has got marked the following documents, which are as follows:- (i) Ext-1 is signature of Satish Kumar on the seizure list, (ii) Ext-1/1 is Seizure list, (iii) Ext-2 is Arms and ammunition examination report of the Sergeant Major dated 18.02.2011, (iv) Ext-3 is self-statement of informant S.I. Birsa Gadi and (v) Ext-4 is Sanction Report of the District Magistrate, Khunti Memo no.44/Vidhi, dated 11.03.2011. 9. The prosecution has further proved the material exhibits i.e. the pistol, live cartridges and the miss fire cartridges, which are as follows:- (i) Material Ext-I - One .303 Bore Countrymade Pistol, (ii) Material Ext-II- One.303 Bore Cartridge. 10. Thereafter the petitioner was examined under section 313 of the Cr.P.C on 29. 05.2014 to which he denied the circumstances put forth before him. 4 11. Neither any defence witness was examined nor was any document marked as exhibit on behalf of the petitioner. 12. From perusal of the evidence of the witnesses namely Kristofer Dungdung, Satish Kumar Oraon, Bhola Sah, Rajkeshwar Kujur examined as P.W-1 to P.W-4, it appears that they are the police constables and although they have supported the recovery of pistol along with one cartridge from the possession of the petitioner, however, they could not say the size of the pistol recovered from the petitioner and the nature of bullet received from the possession of the petitioner. 13. It further transpires from the evidence of P.W-3 that the father of the petitioner was working in the Police Station and he was acquainted with the Officer-in-charge. They have admitted that the accused petitioner had got neither any bag nor mobile at the time of occurrence. Thus, the evidence of P.W-1 to P.W-4 are not reliable. 14. P.W-5 namely Manoj Kumar is the Sergeant Major who has proved the inquest report of the seized pistol marked as Exhibit-2. However, he has stated that bullet is a misfire cartridge. Apart from this he has not mentioned as to whether it was brought before him in the sealed condition or not. Hence the evidence of P.W-5 is also not reliable. 15. P.W-6 namely Birsa Gadi is the informant of this case who has recorded his self-statement and has proved seizure list marked as Ext-1/1. However, during cross-examination he has stated that no independent person was found at the place of occurrence and he is also not aware of the number of the police vehicle by which he had conducted raid and even failed to state about the boundary of the place of occurrence. Though he has 5 denied the suggestion that one Chamra Kandir, the father of the petitioner used to visit the Police Station. However, the evidence of this part is contradicted from the evidence of P.W- 2, who has stated that father of the petitioner used to visit the Police Station. It is further evident from his evidence that the pistol and the cartridge was not sealed at the place of occurrence. 16. P.W-7 namely Sripat Ram is the I.O of this case who has submitted charge sheet against the petitioner. However, the I.O has admitted during his evidence that there was no independent witness at the time of seizure and the seizure list does not contain any signature of the any independent witnesses and he has also failed to say about the length of the seized pistol during his cross-examination. 17. It has been held in the case of Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217 and paragraph No.7 of the said judgment is as follows:- “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. 18. It has been held in the case of Sahib Singh vrs. State of Punjab reported in 1996 (11) SCC 685 and paragraph No.6 of the said judgment is as follows:- 6 “Para.6:- Having gone through the record we find much substance in each of the above 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 6 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 the police officer, though not 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.” 19. It has been held in the case of Salim Akhtar @ Mota versus State of U.P 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 pistol was not sealed as it was factory-made and in the recovery memo its "number" or "make" was not written as the the same was not clear and 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 legible. However, 7 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 Punjab 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.” 20. It is evident form the evidence of the witnesses that the pistol and cartridge were not sealed at the place of occurrence and hence the seizure is illegal in view of the judgment of the Hon’ble Supreme Court. 21. It further transpires that the informant was biased against this petitioner as the father of the petitiner used to visit the Police Station although the reason of visit to the Police Station has not been shown but it can be inferred that the petitioner and his family was known to the informant and he has falsely implicated the petitioner. Thus, the judgment of conviction and sentence of the petitioner passed by both the learned Courts below is not sustainable in the eye of law. 22. Under the circumstances, judgment dated 03.03.2020 passed in Cr. Appeal No.03 of 2016 by learned District and Additional Sessions Judge-II, Khunti and the judgment of conviction and order of sentence dated 22.01.2016 passed by Sri Rajendra Kumar Sinha, learned SDJM, Khunti in 8 connection with G.R. No.39/2011 (T.R. No.47/2016) are set aside in the interest of justice and the petitioner namely, Birsa Kandir is acquitted for the offences under Sections 25(1-B)a and 26(i) of the Arms Act and the petitioner namely, Birsa Kandir is also discharged from the liability of his bail bonds. 23. Thus, the Criminal Revision No.104 of 2021 is
Decision
allowed and stands disposed of. Let the Lower Court Records be sent back to the learned court below at once. Saket/- (Sanjay Prasad, J.)