Jagdish Mahto … v. The State of Jharkhand

Legal Reasoning

CORAM: - HON’BLE MR. JUSTICE AMBUJ NATH ----- For the Petitioner(s) : M/s. Mahesh Tiwari, Advocate (In Cr. Rev No. 141/2007) : M/s. A. K. Pathak, Advocate (In Cr. Rev No. 508/2007) For the State : M/s. Vandana Bharti, A.P.P (In both the cases) --- 07/29.03.2023 The petitioner Jagdish Mahto in (Cr. Rev. No. 141/2007) and petitioner Ram Tahal Mahto in (Cr. Rev. No. 508/2007) have filed these applications against the judgment dated

14.02.2006, passed by Sri I.B. Mandal, learned Additional Judicial Commissioner-XI, Ranchi in Cr. Appeal No. 215/2004, whereby and wherein the learned Additional Judicial Commissioner-XI, Ranchi, dismissed the appeal of the petitioners and upheld the judgment of conviction and order of sentence dated 17.07.2004 passed by Sri B. B. Gautam, learned Judicial Magistrate 1st Class Ranchi in connection with Khelari P.S. Case No. 51/1997 corresponding to G. R. No. 1343/1997, holding the petitioners guilty of offence under sections 25 (1-B)26/35 and of the Arms Act and thereby sentencing them to undergo rigorous imprisonment for 3 years for each of the offences. Both the sentences were directed to run concurrently, the period undergone by the petitioner in custody during the trial was ordered to be set off. The prosecution case was instituted on the basis of self- statement of the informant Abdul Gani Mir a trainee I.P.S. officer posted as Superintendent of Police cum officer-in-charge Khelari police station, alleging therein that he received confidential information that the petitioners who were accused in Khelari P.S. Case No. 50/1997 registered under sections 302/ 34 were hiding in their house. Houses of the petitioners were raided; both the petitioners were apprehended from their house. From the house of the petitioner Jagdish Mahto a self-loading muzzle gun was recovered and from the house of the petitioner Ram Tahal Mahto 100 grams of gunpowder was recovered. The petitioners did not produce any documents for possessing the seized contrabands. After investigation, police found the occurrence to be true and submitted charge-sheet against the petitioners under sections 25 (1-B)/ 26/35 of the Arms Act. The petitioners were charged under the aforesaid sections. Prosecution has adduced both oral and documentary evidence in support of his case. On the basis of the evidence, available on the record both the learned trial court as well as the learned appellate court have come to a concurrent finding regarding the guilt of the petitioners. From the perusal of the prosecution witnesses, it appears that Abdul Gani Mir, P.W.5 is the informant of this case, he has supported the allegation as made out in his self statement and has stated that house of the petitioners, who were wanted in another case was raided and from the house of petitioner Jagdish Mahto, a self loading muzzle gun was recovered whereas from the house of petitioner Ram Tahal Mahto 100 grams of gunpowder was recovered. He has identified the seizure list relating to the seizure of the gunpowder and self-loading muzzle gun which are Ext.- 2 series. He has been cross-examined at length. In his cross examination he has stated that the seizure witnesses were from Manatu village. Kailash Prasad P.W.2. was member of the raiding party. He has supported the allegation as made out in the self-statement of the informant and has stated that on 10.06.1997, confidential information was received that accused persons of Manatu P.S. Case No. 50/1997 were present in their house. On the basis of this information house of the petitioners was raided, 100 grams of gunpowder was recovered from the house of petitioner Ram Tahal Mahto while a self-loading muzzle gun was recovered from the house of petitioner Jagdish Mahto. He has stated that he has prepared the seizure list, the copy of which was given to the petitioners, he has proved the seizure list which are Ext.- 2 series. In his cross examination he has stated that he had recovered a self- loading muzzle gun from the house of petitioner Jagdish Mahto. Bhikhu Mahto P.W.6 and Tulsi Mahto P.W.7. are seizure witnesses, they have not supported the prosecution case and they have been declared hostile. Tejban Oraon P.W.1 is the expert witness who had examined the recovered gunpowder and firearm. He has stated that the recovered self-loading muzzle gun and gunpowder were in working condition, he has proved his report which has been marked as Ext.-1. From the perusal of the documentary evidence, it appears that Ext.-2 relates to recovery of a self-loading muzzle gun from the house of petitioner Jagdish Mahto while Ext.- 2/1 relates to recovery of 100 grams of gunpowder from the house of petitioner Ram Tahal Mahto. Sanction for prosecution of the petitioners has been issued by the District Magistrate, Ranchi dated 02.08.1997, it has been adduced in evidence which is Ext.- 4. From the perusal of the report of the ballistic expert which is Ext.-1, it appears that that the self-loading muzzle gun was recovered from the house of the petitioner Jagdish Mahto was in working condition. However, in the report it has been stated that the 100 grams of gunpowder which was seized was also in working condition. The opinion regarding the gunpowder in the report appears to be subsequently incorporated because it has been squeezed between 2 paragraphs. The Sgt. Major has not stated in his report as to what test was conducted to confirm that the seized contraband from the house of the petitioner Ram Tahal Mahto was gunpowder. In order to come to a definite finding, Chemical analysis test was essential. Furthermore, Petitioner Ram Tahal Mahto has not been charged or held guilty under Explosive Act / Explosive Substances Act. From the aforesaid facts and circumstances, it is evident that the prosecution has been able to prove its case relating to the recovery of the muzzle gun recovered from the house of the petitioner Jagdish Mahto, which was found to be in working condition, prosecution has also brought the sanction for the prosecution of the petitioners on the record. As far as the petitioner Ram Tahal Mahto is concerned, though the factum of recovery of the 100 grams of gunpowder has been proved by the prosecution from his house but whether the alleged gunpowder so recovered was in fact gunpowder or not has not been established. It further appears that the self-loading muzzle gun recovered from the house of the petitioner Jagdish Mahto was not being carried on a public transport or any vehicle so as to hide it from any public servant as such no case under section 26 of the Arms Act can be said to be made out. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the prosecution has not been able to prove its case against the petitioner Ram Tahal Mahto (in Cr. Rev No. 508/2007) for the offence under sections 25 (1-B) of the Arms Act. Accordingly, he is acquitted of the charge. As far as the petitioner Jagdish Mahto is concerned, I am of the opinion that the prosecution has been able to prove its case against him beyond the shadow of all reasonable doubt for the offence under section 25 (1-B) of the Arms Act. However, the prosecution has failed to prove its case against the petitioner Jagdish Mahto under section 26 of the Arms Act. Accordingly, the judgment of conviction and order of sentence passed by the learned court below against the petitioner Jagdish Mahto under section 26 of the Arms Act is set aside. It was submitted that the learned trial court had sentenced the petitioner to undergo rigorous imprisonment for 3 years for the offence under sections 25 (1-B) /35 of the Arms Act. Learned lawyer appearing for the petitioners further submitted that the petitioner Jagdish Mahto has already remained in custody for 1 years and 2 months. The occurrence is of the year 1997, more than 25 years have elapsed. There is nothing on the record to show that the petitioner has earlier been convicted in any other offence. Considering the aforesaid facts and circumstances, the sentence passed by the Learned Trial Court against petitioner Jagdish Mahto for the offence under sections 25 (1-B) /35 is reduced to the period already undergone by the petitioner during the trial. Criminal revision No. 141/2007 is partly allowed and Criminal Revision No. 508/2007 is hereby allowed.

Decision

Pending I.A., if any, also stands disposed of. (Ambuj Nath, J.) Saurabh