Criminal Appeal No. 212 of 2015 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 761 of 2016 Md. Sohail @ Soni --------- Versus ..… Petitioner The State of Jharkhand ….. Opp. PartyRAO CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ---------- --------- For the Petitioner For the State : Mr. Sanjay Prasad, Advocate : Mr. Santosh Kr. Shukla, A.P.P. --------- ORAL ORDER IN COURT 10/02.02.2024 This criminal revision application has been filed on behalf of the petitioner challenging the judgment dated 03.03.2016 in Criminal Appeal No.212 of 2015 by the learned Sessions Judge, Dhanbad, by which the appeal has been dismissed thereby affirming the judgment of conviction and order of sentence dated 30.11.2015, passed by Shri M.D. Umar,, J.M., 1st Class, Dhanbad in connection with Katras (Tetulmari) P.S. Case No. 155 of 2010, corresponding to G.R. No. 1776/2010, by which the petitioner had been convicted for the offence under Section 25 (1-b) a and 26 of the Arms Act and had been sentenced to undergo R.I. for two years for the offence under Section 25 (1-b)a of the Arms Act and R.I. for a period of two years for the offence under Section 26 of the Arms Act and to pay a fine of Rs. 2,000/-for the aforesaid offence and in default of payment of fine the petitioner was further directed to undergo S.I. for a period of nine months. 2. The prosecution case was instituted on the basis of self- statement of S.I. Rajesh Kumar of 2 Katras (Tetulmari) Police Station alleging therein that on 17.05.2010, at about 7.00 p.m. Tetulmari Police was checking on vehicles from Tetulmari Police Station and at about 7.30 p.m. a motorcycle was coming from Rajganj, on which two persons were travelling and on seeing the police party, they started fleeing away, however, they dashed a cyclist due to which both the cyclist and the riders fell on the ground. The pillion rider managed to escape from there, however, the person who was driving the motorcycle was apprehended and on search a country made loaded pistol was recovered from his possession. He stated the name of the co- accused as Rahul Singh @ Vicky who had fled from the place of occurrence. 3.
Legal Reasoning
Heard Mr. Mr. Sanjay Prasad, learned counsel for the petitioner and Mr. Mr. Santosh Kr. Shukla, learned A.P.P. 4. Learned counsel for the petitioner has submitted that the impugned judgments of conviction and sentence passed by the learned Courts below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below have committed a grave illegality by convicting the petitioner for the offence under Section 25(1-b) a and 26 of the Arms Act. It is submitted that the P.W. 1, P.W.2 and P.W.4, namely, Madan Thakur, Kanhaiya Mishra and Hari Prasad Mahato respectively have been declared hostile. It is submitted that P.W. 3 is the seizure list witness, who has not supported the recovery. It is submitted that P.W. 5 is the informant in this case, who has falsely implicated the petitioner 3 and admitted during his cross-examination that the seized articles were not sealed at the place of occurrence and there is non-compliance of the provisions of Section 100 Cr.P.C. It is submitted that the P.W. 7 is the I.O. of this Case. He has merely supported the occurrence and has carried out improper investigation by submitting wrong chargesheet against the petitioner and hence, this revision may be allowed. 5. Alternative, learned counsel for the petitioner has also submitted that the petitioner was in custody for around 11 months and he has suffered a lot and hence, lenient view may be taken by this Court and the sentence undergone by the petitioner in jail may be treated as the period of sentence. 6. On the other hand, learned A.P.P. has opposed the prayer and submitted that the impugned judgments of conviction and order of sentence passed by the learned Courts below are fit and proper and no interference of this Court is required. It is submitted that both the learned Courts below have appreciated the evidence of the prosecution witnesses and there is no infirmity in the judgments of conviction and order of sentence. It is submitted that although P.W. 1, P.W.2 and P.W.4, namely, Madan Thakur, Kanhaiya Mishra and Hari Prasad Mahato respectively have been declared hostile, however, P.W. 5 is the Informant of this case, who has fully supported the prosecution case and has stated that one pistol and two live cartridges were recovered from the possession of this petitioner, for which he failed to produce any 4 paper. It is submitted that P.W. 7 is the I.O. of this case, who has also supported the prosecution case. It is submitted that the seized articles, i.e. the pistol and the cartridges were marked as Material Ext. I, II, III
Decision
respectively. It is submitted that in view of the above, there is no infirmity in the judgments passed by the learned Court below, hence the Criminal Appeal may be dismissed. 7. Perused the Lower Court Records of this case and considered the submissions of both sides. 8. It transpires that the F.I.R. was lodged by the Informant-P.W.5, namely Rajesh Kumar against the petitioner and one Rahul Singh that on 17.5.2010, when the informant had tried to intercept the motor cycle of the petitioner and one person had fled away and one Desi Katta and two live cartridges and one mobile was recovered from the petitioner in presence of independent witnesses Ghanshyam Singh and Ashok Kumar. 9. It transpires that the police had submitted chargesheet under section 25 (1-b) a, 26/35 of the Arms Act against the petitioner and one Rahul Singh on 14.07.2010. 10. Thereafter, the learned C.J.M. took cognizance under Sections 25 (1-b)a, 26/35 against the petitioner and said Rahul Singh. 11. After supplying police papers to the accused persons, charges were framed against the petitioner and one Rahul Singh on 9th August, 2010 under Section 25(1-b)a of the Arms Act and Section 26/35 of 5 the Arms Act and to which they pleaded not guilty and claimed to be tried. 12. It transpires that the prosecution had got examined eight (08) witnesses in support of its case, who are as follows: (i) P.W. 1 is Madan Thakur, (ii) P.W. 2 is Kanhaiya Mishra, (iii) P.W. 3 is Ghanshyam Singh, (iv) P.W. 4 is Hari Prasad Mahto, (v) P.W. 5 is Rajesh Kumar i.e. the Informant of this case, (vi) P.W. 6 is Arjun Gope the S.I., (vii) P.W. 7 is Alakhdev Prasad Singh, i.e. the I.O. of the case and (viii) P.W. 8 is Shiv Pujan Paswan (Jail Guard) 13. The prosecution had got marked following documents in support of its case, which are as follows:- (i) Ext.1 is the Signature of Ghanshyam Singh on Seizure list, (ii) Ext. 1/1 is the Signature of Rajesh Kumar on Seizure List, (iii) Ext. 2 is the self statement of Rajesh Kumar, (iv) Ext 2/1 is the forwarding report, (v) Ext. 2/2 is the Registration of F.I.R., (vi) Ext. 3 is the Inquiry Report, (vii) Ext.4 Signature of accused Sohail, (viii)Ext.5 is F.I.R., (ix) Ext.6 is the signature of Ravi Thakur, 6 (x) Ext. 7 is Ballistic Expert report and (xi) Ext.8 is the confessional statement 14. The prosecution has further proved following articles as Material Exhibits, which were as follows: (i) Material Exhibit I is one pistol, (ii) Material Exhibit II is Bullet, (iii) Material Exhibit III is also Bullet 15. Thereafter, the petitioner was examined under Section 313 Cr.P.C. on 19.12.2014 and to which he denied the circumstances put forth before him. 16. Thereafter, the learned Court had convicted the petitioner for the offence under Section 25 (1-b) a and 26/35 of the Arms Act and sentenced him on different counts as mentioned above. However, the learned Court below had acquitted the other accused Rahul Singh. 17. Thereafter, the petitioner had filed Criminal Appeal No. 212 of 2015 before the learned Sessions Judge, which was dismissed by the learned Sessions Judge vide judgment dated 03.03.2016, hence the present criminal revision has been filed. 18. So far as the evidence of prosecution witnesses are concerned, P.W. 1 is Madan Thakur, who has been declared hostile by the prosecution as he has stated that he does not know about the occurrence, hence the evidence of P.W. 1 is not relevant. 7 19. P.W. 2 is Kanhaiya Mishra, who was also declared hostile by the prosecution as he has stated that he does not know about the occurrence, hence the evidence of P.W. 2 is also not relevant. 20. P.W. 3 is Ghanshyam Singh, i.e. the Seizure List witness, who although has proved his signature on the seizure list dated 17.5.2010, however, during cross-examination he stated that he has put the signature on the seizure list in the police station and nothing was sealed in his presence. Thus, evidence of P.W. 3 is not reliable as nothing was seized during his presence. 21. P.W. 4 is Hari Prasad Mahato, who has also been declared hostile by the prosecution, as he stated that he had no knowledge or information about the incident. Thus, the evidence of P.W. 4 is also not reliable. 22. It transpires that one Ashok Kumar Yadav had not been examined although he was the seizure list witness. 23. It further transpires that P.W. 5 is Rajesh Kumar, who is the informant of this case and he stated during his evidence that while intercepting his motorcycle, the petitioner tried to flee away after hitting the cyclist and on search one desi loaded pistol and two live cartridge was recovered from him and he could not produce any paper in support of seized pistol and two cartridges and he had proved the seizure list marked as 1/1. He has also proved the injured requisition of the petitioner, namely Md. Sohail marked as Ext.3. He has also stated that the 8 petitioner was injured and for which he has issued injury requisitions. He has further proved his self- statement marked as Ext. 2. He has proved his forwarding marked as Ext. 2/1. He has further proved the registration of F.I.R. marked as Ext. 2/2. He has further proved the injury requisition slip of the petitioner marked as Ext.3. He has further proved the confessional statement of the petitioner marked as Ext. 4 (With objections). He has further proved the formal F.I.R. marked as Ext. 5. However, during cross examination he had stated that the seized articles were not sealed and no identification mark was given on the seized articles. He had denied the suggestion of giving third degree torture to the petitioner, namely Md. Sohail in the police station. He has also admitted that nothing has been seized from the possession of the second person and nothing was seized in any other case on the basis of the confession of the petitioner. Thus, from scrutinizing the evidence of P.W. 5 (i.e. Informant), it would appear that though he has supported the recovery of pistol and two live cartridges from the possession of this petitioner, but has admitted that the seized articles were not sealed at the place of occurrence and no identification mark was mentioned on said sealed articles. 24. P.W. 6 is S.I. Arjun, who has stated during evidence that there was a checking drive carried on by the police and the petitioner along with another accused, who were riding a motorcycle, started to flee away and they chased them, who did 9 not stop and one of the motorcyclists hit one cyclist due to which they fell down and became injured and one loaded pistol and two cartridges were recovered from the possession of the petitioner which were sealed in the presence of the independent witnesses. However, during cross-examination, he has stated that he does not know the name of the petitioner. He also admitted that he cannot give details of the arms and that the petitioner was treated in the hospital and thus, P.W. 6 appears to have merely supported the case of the informant. Thus, evidence of P.W.6 is not reliable as he is under influence of the Informant. 25. P.W. 7 is Alakhdev Prasad Singh, who is Sub-Inspector and I.O. of this Case. He has proved the Test Report given by the Sargent Major, marked as Ext.7. He has further stated about the place of occurrence and also about the recovery of one pistol, two live cartridges and one mobile phone from the possession of this petitioner. He has further proved the sanction order of the District Magistrate, marked as Ext. 8. During his further evidence, he has further proved the pistol, marked as Material Exhibit-I. He has further proved the cartridges marked as Material Exhibit No. II and Material Exhibit No. III respectively. During cross-examination, he has stated that after any road accident, people try to flee away from the place of occurrence. He further admitted that he has sent the seized articles before the Sargent 10 Major for its test, but the seized articles were not sent in the sealed condition before the Sargent Major and the seizure list does not show the signature of any Officer. Thus, P.W.7 is the I.O., who has merely supported and corroborated the prosecution case, but he was not competent to prove the Test Report of the Sergeant Major and the Material Exhibits. 26. P.W.8 is Shivpujan Paswan, who is a Jail Guard and was posted at the relevant time and was leading the raiding party at the time of checking of the motorcycle and has stated that two person were fleeing away after hitting one cyclist and one person, i.e. the petitioner was apprehended and one Desi Katta and two cartrides and one Mobile Phone were recovered, whereas other person, namely Rahul Sinha fled away. However, during cross-examination, he admitted that he cannot say about the cyclist. He further admitted that both the accused persons were having some injuries on their person. He further admitted that all their papers were produced at the police station after one day of the occurrence. Thus, from scrutinizing the evidence of P.W.8, it is evident that the he is a set up of the I.O. and he admitted that all the papers were prepared at the police station and nothing was sealed at the place of occurrence, where the petitioner and one Rahul Singh were injured. 27. 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 11 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. 28. 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 as follows:- “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 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 12 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.” 29. It has 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 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 13 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, Judicial Magistrate, 1st Class, Hazaribag in connection with Barhi P.S. Case No.194/2008, corresponding to G.R Case No.3346/2008 (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. 30. It transpires that the petitioner was apprehended by the police when he was trying to flee away and recoveries have been shown of one pistol and two live cartridges. 31. It is admitted by the informant himself during his cross-examination in Para 5 that the seized articles were not sealed at the place of occurrence and no mark was given to at the time seizure. Thus, it is 14 evident that both the learned Courts below have not taken into consideration the fact that the seized materials were not sealed at the place of occurrence making the seizure in this case doubtful which is in complete violation of the judgment passed by the Hon’ble Supreme Court in various cases, such as in Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217, in the case of Sahib Singh vrs. State of Punjab reported in 1996 (11) SCC 685 and in Salim Akhtar @ Mota reported in (2003) 5 SCC 499. 32. Ext. 3 is the requisition slip dated 17.05.2010, issued by the Informant in respect of petitioner, namely Md. Sohail @ Soni, which shows that there were four injuries on his person, i.e. at left shoulder, left elbow, chin and scratch on the left knee, but from perusal of the injury report, as prepared by the doctor Ashok kumar Bhowmik, the Medical Officer, it would appear that the petitioner had sustained several injuries on his person and even he has suspected fracture. Thus, the petitioner was assaulted even by the Informant after the occurrence. 33. It further transpires from the evidence of P.W.7, i.e. the I.O. that he had proved the Test Report of the article marked as Ext.7, prepared by the Sargeant Major, however, the Sargent Major had not been examined and therefore, the Ext.7 cannot be relied upon and it is a report of an expert and it cannot be legally proved by the I.O., i.e. the P.W.7. 34. It further transpires that even the sanction order of the District Magistrate has also been proved by the I.O., which is also improper as it should have been proved only by the D.C. himself or by some authorized person from his office and therefore, Ext.7 and 15 Ext.8 cannot be relied upon also. However, both the Courts below have failed to consider the glaring irregularities committed by the informant and I.O. of this case. 35. Both the Courts below have failed to take notice that even the petitioner was severely injured at the time of his remand before the Court below and even the learned C.J.M., Dhanbad has mentioned this fact in the ordersheet dated 18.05.2010 regarding injuries found on the person of this petitioner. This appears to be a case of high handedness on the part of the police officials for implicating the petitioner. 36. On the facts and in the circumstances of the case and in view of the discussions made above and in the light of the law laid down by the Hon’ble Supreme Court, the impugned judgment dated 03.03.2016 passed in Criminal Appeal No.212 of 2015 by the learned Sessions Judge, Dhanbad and the judgment of conviction and sentence dated 30.11.2015, passed in connection with Katras (Tetulmari) P.S. Case No. 155 of 2010, corresponding to G.R. No. 1776/2010 are set aside and the petitioner is acquitted from the charge under Section 25 (1-b) a and 26 of the Arms Act. 37. Thus, this Criminal Revision Application is allowed and the petitioner is discharged from the liability of his bail bonds. (Sanjay Prasad, J.) Jharkhand High Court, Ranchi Dated 2nd February, 2024 A.F.R./s.m.