Criminal Appeal No. 2 of 2014 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1013 of 2015 Md. Murshid Son of Late Md. Emam resident of Village Choramba, P.O. and Police Station-Kotwali District-Munger (Bihar) The State of Jharkhand Versus ----- …… Petitioner ……Opposite party PRESENT HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ----- JUDGMENT C.A.V. On 20.03.2024 Pronounced On: 07.05.2024 1. The instant Criminal Revision is directed against Judgment dated 25.05.2015 passed by learned Additional Sessions Judge, Simdega in Criminal Appeal No. 2 of 2014 and 7 of 2014 whereby and whereunder the appeal preferred by the petitioner against the Judgment of conviction and order of sentence dated 28.01.2014 passed by learned Chief Judicial Magistrate, Simdega in G.R. Case No. 320 of 2010/ T.R. No. 36 of 2014 whereby the petitioner along with others were convicted for the offence under Sections 25(1-B)a/35 and 26/35 of the Arms Act and sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs. 1,000/- for the charge under Section 25(1-B)a/35 of the Arms Act and further sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs. 1,000/- for the charges under Section 26/35 Arms Act with default stipulation was dismissed by the appellate court in respect of petitioner while by the same judgment one appellant namely, Raju @ Md. Jubair was acquitted and his appeal was allowed. 2. Factual matrix giving rise to this revision is that on the basis of confidential information police personnels proceeded for verification and necessary action keeping vigil over the passengers boarding on bus from Ranchi to Simdega. It is alleged that on 12.10.2010 at about 01.30 p.m. near the southern gate of bus stand two persons were seen trying to flee away and intercepted on suspicion, who disclosed their name as Sanjeb @ Raju and Md. Mursheed. It is alleged that on search of person a pistol with magzine was recovered from the possession of Sanjeb @ Raju along with mobile phones and one pistol with magzine was also recovered from the possession of Md. Mursheed. The apprehended persons also disclosed the name of Md. Naushad to whom the said pistol and cartridges were
Legal Reasoning
belonging. No license was produced in respect of fire arms and ammunition, hence, FIR was lodged and after conclusion of investigation chargesheet was submitted. The learned trial court after conclusion of trial held all the three accused persons guilty and sentenced them to undergo imprisonment as stated above. The appellate court after reappreciating the evidence available on record upheld and confirmed the conviction and sentence of present petitioners along with co-accused Md. Sanjeb @ Raju and extended benefit of doubt in favour of one co-accused @ Raju@ Zubair. 3. Learned counsel for the petitioner has assailed the impugned judgment on the following grounds. (i) The occurrence as alleged to have happened in broad day light near a busy public place which is a Bus stand, but the search and seizure was not conducted in presence of independent witnesses as 2 Cr. Revision No. 1013 of 2015 required under Section 100 of the Cr.p.c., which does not inspire confidence. (ii) All the witness examined in this case are happens to be police officers and member of raiding party, hence, most interested witnesses and on the basis of their testimony conviction cannot be upheld and maintained. (iii) The fire arms seized in this case have not been sealed on the spot and sent for examination by surgent major after 11 days. There is no evidence as to which weapon was recovered from whom. The conviction of the petitioner is not based on the incriminating materials got explained under Section 313 Cr.p.c. rather the same is based on extraneous evidence. In the above premises impugned judgment is not legally sustainable and fit to be set aside and petitioner deserves to be acquittal from the charges leveled against him. In the alternative it is urged that the petitioner has undergone about one year imprisonment during trial of the case and has sufficiently been punished, hence, maximum sentence awarded against the petitioner of two years R.I. may kindly be reduced to the period already undergone.
Legal Reasoning
4. On the other hand learned APP for the State has vehemently opposed the aforesaid contentions raised on behalf of the petitioner and submitted that the evidence available against the co-accused, Raju @ Md. Zubair was different, hence he was extended the benefit of doubt but the present 3 Cr. Revision No. 1013 of 2015 petitioner was apprehended on the spot and due to compelling circumstances, the seizure list was prepared in presence of police personnel’s as no independent local witness were ready to become witness of search and seizure. There is no rule of law or prudence that the evidence of police personnel’s cannot be believed to be true unless it is corroborated from any other independent source. The witnesses examined in this case have categorically proved the guilt of the petitioner and nothing was elicited by the defence in their cross examination to disbelieve or discord their testimony. Moreover, the defence has also offered no evidence oral or documentary to rebut the charges against them. Therefore, there is no illegality or infirmity in the impugned Judgment and orders and the same does not suffers from perversity, hence, this revision is fit to be set dismissed. 5. I have gone through the entire record and alongwith impugned Judgment in the light of contentions raised on behalf of both sides. Since the points of issue raised by learned counsel for the petitioner are of vital legal import, hence, critical analysis of the same for just and proper decision is required. The first point of argument concerning search and seizure are regulated by provision of law under Section 100 Cr.p.c. which is not a bare formality. In the instant case it is admitted position that the petitioner was apprehended at a public place like bus stand and there was prior confidential information to the police personnels about recovery of arms 4 Cr. Revision No. 1013 of 2015 and ammunitions from some suspected persons. Even then as it evident from the testimony of witnesses that no effort was made by the raiding party and the officer making the search on the accused person in presence of independent witnesses of locality. Even the seized materials were not sealed on the spot and no mark of identification was put as to which pistol was recovered from which of the accused. In the case of Saheb Singh versus State of Punjab (1996) 11 SCC 685 explaining the scope of Section 100 (4) Cr.p.c. and effect of its failure to comply has been explained by Hon’ble Supreme Court as under “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 officer who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witnesses was examined to prove the search but if it found that no attempt was made even by the police officer concerned to join with him some person of the locality who were admittedly available to witness the recovery, it would affect the rate of evidence of the police officer, though not its admissibility. In the instant case there is specific allegation in the FIR as well as in the evidence of witnesses that no local person was ready to be a witness of 5 Cr. Revision No. 1013 of 2015 search and seizure, hence, police personnels were joined as a witness of search and seizure. Therefore, this point of argument raised on behalf of petitioner hold no much water. 6. The second plea of the petitioner that all the witnesses are member of raiding party, hence, they are interested witnesses and their testimony cannot be relied upon is also not sustainable under law. There is no legal presumption that the evidence of police officers as a witness cannot be relied upon unless corroborated from some independent source but as a common practice if the evidence of police officials inspires confidence and suffers from no infirmity or malice the same can be accepted for proving the guilt of the accused. The third point raised by petitioner is concerned with sealing and packeting the seized material after bringing the same at police station is concerned, there is categorical evidence of P.W. 3, Parmeshwar Prasad, Officer Incharge of Simdega Police Station that the seized materials were sealed, packeted and produced before the concerned Magistrate having jurisdiction over the case and also sent to surgent major Tushar Kant Jha/ P.W. 1 for examination of its working condition. It is also apparent that P.W. 1 surgent major found the seized material to be effective and working and it were produced in sealed cover with signature of I.O. witnesses as well as Magistrate. The seized material has also been marked exhibit before the Court, therefore, the above contention of the learned 6 Cr. Revision No. 1013 of 2015 counsel for the petitioner is also not sustainable in the factual ground of this case. 7. In view of above discussion and reasons, I do not find any material, illegality in the merits of Judgment passed by both the Court below. 8. So far plea about sentence is concerned, admittedly the petitioner has remained in custody about one year as minimum prescribed for the offence under Section 25(1)(B)(a) of the Arms Act and no previous conviction is credited against him, therefore, having regard to the facts and circumstances of the case and condition of the convict, I am of the view that sentence of imprisonment already undergone is sufficient punishment as such, this Revision Petition is dismissed on merits but with modification in sentence which is reduced from three years to sentence already undergone by the petitioner. 9. Petitioner is on bail, as such, he shall be discharged from the liability of bail bond and sureties shall also be discharged. 10. Let the copy of this order along with L.C.R. be sent to the concerned court forthwith. (Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 07/05/2024 Rajnish/- N.A.F.R. 7 Cr. Revision No. 1013 of 2015