Firoz Alam vs The State Of Jharkhand

I have already heard the arguments of Mr. Praveen Shankar Dayal, learned counsel for the appellant and Mr. Azeemuddin, learned A.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 16.05.2009 and 18.05.2009 respectively, passed by learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi in Sessions Trial Case No. 449 of 2000, whereby and whereunder the appellant has been held guilty for the offences under Sections 307 of the I.P.C.; Section 3/4 of the Explosive Substance Act and Section 25 (1-B)a/35 of the Arms Act and sentenced to undergo R.I. for five years along with fine of Rs. 2000/- for the offence under Section 307 of the I.P.C.; R.I. for five years along with fine of Rs. 2000/- for the offence under Section 3/4 of the Explosive Substance Act and R.I. for three years along with fine of Rs. 2000/- for the offence under Section 25 (1-B)a/35 of the Arms Act. All the sentences were directed to run concurrently with default stipulation.

Factual matrix giving rise to this appeal as per self-statement of S.I., Ram Nath Rai of Argora Police Station dated 07.11.2008 at about 02:30 hours at field opposite to Allahabad Bank is that on the basis of secret information received by the informant that some miscreants have assembled at Harmu field and making preparation for committing some heinous offence. The informant along with other police personnel went to the place of occurrence and saw 5-6 miscreants. Upon seeing the police personnel, they started fleeing away. It is alleged that A.S.I., Jai Ram Singh flashed the torch towards the miscreants for chasing them, in the meantime, one country made bomb was exploded by the miscreants in spite of that the police parties succeeded in apprehending one of the miscreants, who disclosed his name as Firoz Alam (present appellant). It is alleged that on interrogation, the apprehended person disclosed that they have assembled in committing dacoity in the shop of Sri Ram Vastralaya and also disclosed the name of other co-accused persons, who managed to flee away as Illiyas, Shamim Illias, Thumuk, Rajjak, Mukuna and Md. Muntzir. It is further alleged that on personal search of the apprehended accused one country made loaded pistol with live cartridge was recovered from his possession and seizure list was prepared in presence of witnesses.

On the basis of above information, Doranda (Argora) P.S. Case No. 261 of 1998 dated 07.11.1998 was registered for the offences under Sections 307, 399, 402 of the I.P.C. and Section 3/4 of the Explosive Substance Act and Section 25(1-B)a/35 of the Arms Act against the accused persons.

After completion of investigation, charge-sheet was submitted against the accused persons continuing investigation against other co-accused persons. The case was committed to the Court of Sessions, where Sessions Trial Case No. 449 of 2000 was registered. The accused persons denied from the charges leveled against them and claimed to be tried.

In the course of trial, altogether 9 witnesses were examined by prosecution:-

P.W.-8-Siya Ram Mishra

Apart from oral testimony of witnesses following documentary evidence have been adduced by the prosecution.

Exhibit-6-Arms test report

On the other hand, the case of defence is denial from occurrence and false implication only on the basis of suspicion and pleaded innocence.

However, no oral or documentary evidence has been adduced by defence.

The learned Trial Court after considering the evidence of prosecution arrived at definite conclusion about guilty of the present appellant for the offences charged against him and convicted and sentenced him as stated above, which has been assailed in this appeal.

Learned counsel for the appellant has contended that the learned Trial Court has completely erred and failed to scrutinize the evidence available on record properly and arrived at wrong conclusion. The most of the witnesses have not supported the prosecution story as depicted in the F.I.R., the seizure list witnesses have also not been examined to prove the actual recovery of any firearm from the possession of the appellant. The investigating officer of this case has failed to apprehend the other co-accused persons and charge-sheet was submitted against the present appellant. Therefore, no offence under Sections 399 and 402 of the I.P.C. could be proved by the prosecution. There is no iota of evidence at all that the present appellant has exploded any bomb and no injury to any of the member of raiding party has been caused by bomb explosion or in any other manner. Therefore, offence under Section 307 of the I.P.C. and 3/4 of the Explosive Substance Act is not conclusively proved against the appellant. The learned Trial Court has also failed to settle separate charge for the offence under Section 3/4 of the Explosive Substance Act which have distinct ingredients to be proved by the prosecution. Therefore, combined framing of charge is absolutely misleading and cannot be proved by the prosecution by the same evidence. It is further submitted that although there is alleged recovery of firearm from the possession of the appellant, but it is not proved that the same was used for causing any injury to any police official. The seizure list witnesses have also not been examined to prove the recovery of any firearm from the possession of the appellant. Moreover, even if it may be assumed that the prosecution have been able to prove the charge under Section 25 (1-B)a/35 of the Arms Act, the appellant has undergone custody for one and half years during trial and post conviction and has sufficiently been punished. There is no criminal antecedent of the appellant or any record of previous conviction for any offence. Therefore, in the alternative it is prayed that the sentence passed against the appellant for the offence under Section 25 (1-B)a/35 of the Arms Act may be reduced to the extent of imprisonment already undergone.

On the other hand, learned A.P.P. appearing for the State has submitted that the learned trial Court has very wisely and aptly appreciated and analyzed the evidence available on record and rightly convicted the appellant. The impugned judgment of conviction and sentence of the appellant does not suffer from illegality or infirmity, calling for any interference. There is no legal substance in the grounds raised on behalf of the appellant. This appeal is devoid of merits and fit to be dismissed.

The only point for determination in this appeal is “as to whether the impugned judgment and order of conviction and sentence of the appellant suffers from any serious error of law calling for any interference in this appeal?”

Before adverting to imparting my verdict on above point, it is desirable to take brief resume of ocular testimony of witnesses examined during trial.

P.W.-1-A.S.I, Ram Nath Rai, the informant has deposed that on 07.11.1998, while on night patrol, he received secret information that 5–6 miscreants had assembled at Harmu field to commit a crime. He along with the police party from Harmu T.O.P., proceeded to the spot, surrounded the field, and found the miscreants sitting and smoking. When the police flashed a torch and identified themselves, one miscreant hurled a country-made bomb at the police party, creating a loud explosion and smoke. The police escaped unharmed and chased the fleeing miscreants, apprehended one person who disclosed his name as Firoz Alam, while the others escaped. He further stated that a loaded country-made pistol was recovered from Firoz Alam during his search. The apprehended accused disclosed the names of his associates as Md. Illias, Md. Salim and others. From the place of occurrence, the police seized a motorcycle, liquor bottle, cigarette pieces, glass pieces, bomb remnants, nails, rope and slippers. He proved the seizure list marked as Exhibit-1, his self-statement marked as Exhibit-2, the forwarding and endorsement thereon marked as Exhibits-2/1 & 2/2 and the formal F.I.R. as Exhibit-3.

P.W.-2-Constable, Dharmvir Kumar Singh has deposed that on dated 07.11.1998 at about 2 O'clock night, he along with other police officers and police party proceeded on night patrolling. During the course of patrol, he received information that some miscreants are preparing to commit dacoity and are sitting at Harmu field. Thereafter, he along with the police party under the leadership of S.I., Ram Nath Rai reached at Harmu field and surrounded the said field and thereafter, A.S.I., Ram Nath Rai flashed a torch, the miscreants fled, and one of them exploded a bomb. During the chase, Firoz Alam was apprehended and a loaded country-made pistol was recovered from his possession. Firoz Alam disclosed the names of his associates, including Illias, Hussain and Tullu, and stated that they have assembled to commit dacoity at Ram Vastralaya, Harmu Bazaar. A motorcycle, cigarette packet, empty liquor bottle and slippers were also seized.

P.W.-3-Constable, Man Singh Sundi has deposed that on 07.11.1998 at about 2 O'clock night, he was posted at Harmu T.O.P., while on patrol duty he heard the sound of a bomb explosion. On reaching behind Harmu Vegetable Market, he saw 4–5 boys fleeing. After 10–15 minutes, the Officer-in-Charge arrived with one apprehended person and informed him that the accused has been arrested with a revolver. He admitted that no arrest was made in his presence. He has not supported the prosecution case and declared hostile.

P.W.-4-Hawaldar, Ram Pravesh Singh has stated that on 07.11.1998 at about 11 O'clock night, he was at Harmu T.O.P. and on receiving information about the presence of 5–6 miscreants at Harmu Field, he accompanied the police party to the spot. One bomb was thrown at the police party by the miscreants, after which the Argora P.S. patrol also reached there. During the chase, Firoz Alam was apprehended and a bomb and a dagger were recovered from his possession.

P.W.-5-Syed Bashir Ahmed is Scientific Assistant in the Forensic Science Laboratory, has deposed that on 25.11.1998 he examined, in the presence of the Regional Director, a sealed envelope containing bomb remnants relating to Argora P.S. Case No. 261/98. The envelope contained burnt jute string, iron balls and iron nails, which were found to be remnants of an exploded homemade bomb. He has proved the F.S.L. report marked as Exhibits. 4 & 4/1.

P.W.-6-Bishwa Mohan Pathak is the Assistant in the office of the Deputy Commissioner-cum-District Magistrate, Ranchi, proved the prosecution sanction order marked as Exhibit-5 issued by the then District Magistrate for prosecuting the accused under Sections 25 (1-B)a/35 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act.

P.W.-7-Ashok Kumar Pathak, the then Sergeant Major, Police Lines, Ranchi has stated that on 25.11.1998, he examined the seized one country made pistol and one 0.315 bore bullet in connection with Argora PS case no. 261/98 and found the firearm to be functional and capable of causing fatal injuries. He has proved his examination report marked as Exhibit-6.

P.W.-8, Constable, Sita Ram Mishra has proved one country made pistol marked as material Exhibit-I, one live cartridge marked as material Exhibit-II and three slippers marked as material Exhibits-III to III/2 and one challan relating to said material marked as Exhibit-7.

P.W.-9-Kameshwar Kr. Singh has stated that he is not the Investigating Officer of Argora P.S. Case No. 261/98 and the Case Diary of this case has not been written by him. He clarified that in 1998, he was posted at Sitamari (Bihar) and he had appeared before the Court only pursuant to the direction of the Senior Superintendent of Police, Ranchi.

From the evidence, it appears that one of the miscreants hurled a country-made bomb towards the police party while fleeing away. However, there is no cogent or reliable evidence to establish that it was the present appellant who has either carried or exploded the bomb. The prosecution witnesses have only made a general allegation that one of the miscreants threw the bomb. No witness has specifically identified the appellant as the person, who exploded the bomb. Significantly, no bomb or explosive substance was recovered from the possession of the appellant at the time of his apprehension.

It further appears from the evidence that no member of the raiding party or any other public servant sustained any injury in the alleged occurrence. There is also no evidence regarding the exact distance from which the bomb was allegedly thrown or any other surrounding circumstance from which it can safely be inferred that the appellant intended or knew that his act was as imminently dangerous as to attract the ingredients of Section 307 of the I.P.C. Mere explosion of bomb by an unidentified miscreant, without any evidence connecting the appellant with such act, is insufficient to fasten criminal liability under Section 307 of the Indian Penal Code.

The conviction under Sections 3/4 of the Explosive Substances Act also cannot be sustained. The prosecution has proved through the forensic report that remnants of an exploded country-made bomb were recovered from the place of occurrence. Nevertheless, proof of recovery of bomb remnants alone does not establish that the appellant was in possession of the explosive substance or that he caused the explosion. In absence of any direct or circumstantial evidence connecting the appellant with the explosive substance or the alleged explosion, the essential ingredients of Sections 3 and 4 of the Explosive Substances Act remain unproved.

However, the evidence regarding recovery of one country-made loaded pistol and one live cartridge from the possession of the appellant, it appears that P.W.1, the informant, and P.W.2, a member of the raiding party, have consistently deposed regarding the recovery of the firearm from the appellant immediately after his apprehension. Their testimony has remained substantially intact. The firearm and cartridge were produced before the Court as material exhibits, and the ballistic examination report (Exhibit-6) establishes that the country-made pistol was in working condition and capable of being fired. The prosecution has also proved the requisite sanction for prosecution under the Arms Act.

Merely because the seizure witnesses were not examined or the Investigating Officer could not be produced during trial does not, by itself, render the prosecution case doubtful, particularly when the recovery is consistently proved by the official witnesses and no material contradiction has been elicited in their evidence.

Accordingly, this Court is of the considered opinion that the prosecution has succeeded in proving beyond reasonable doubt that the appellant was found in conscious possession of a country-made pistol and one live cartridge without any valid licence, thereby committed the offence punishable under Section 25(1-B)(a) read with Section 35 of the Arms Act.

In view of the above discussions, the conviction and sentence of the appellant under Section 307 of the Indian Penal Code and Sections 3/4 of the Explosive Substances Act are hereby set aside and the appellant is acquitted of the said charges by extending him the benefit of doubt. However, the conviction of the appellant under Section 25(1-B)(a) read with Section 35 of the Arms Act is affirmed.

So far as the sentence of the appellant is concerned, it appears that he has no criminal antecedent on record and he has already remained in custody for about one and half years during trial and after conviction, the occurrence is of the year 1998 and from which about two and half decades have elapsed, therefore, in the ends of justice his sentence is reduced to the period already undergone by him.

Accordingly, this appeal is dismissed on merits with modification in conviction and sentence as stated above.

Appellant is on bail, as such he is discharged from the liability of bail bond and sureties are also discharged.

Pending I.A(s), if any, stands disposed of.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.