Gokul Paramanik son of Arun Paramanik vs State of Jharkhand

Heard Mr. Dilip Kr. Chakraverty, learned counsel for the petitioner.

Heard Mr. Gouri Shankar Prasad, learned counsel appearing on behalf of the opposite party.

This criminal revision application has been filed against the judgment and order dated 24.09.2012 passed by learned Sessions Judge, East

Singhbhum, Jamshedpur in Cr. Appeal No. 116 of 2011 whereby he has upheld the conviction dated 10.06.2011 passed by learned Judicial Magistrate,

Ist Class, Jamshedpur in G.R. Case No. 1227 of 2009, T.R. No. 307/2011. The learned trial court has convicted the petitioner for offence under

Sections 25(1-B)(a)/26 of the Arms Act, 1959 and sentenced him to undergo rigorous imprisonment for three years and has imposed a fine of Rs.

2,000/- for offence under Section 25(1-B)(a) of the Arms Act and further sentenced him to undergo rigorous imprisonment of two years and fine of

Rs. 2,000/- under Section 26 of the Arms Act. It was further directed by the learned trial court that in case of default in payment of fine, the petitioner

shall undergo rigorous imprisonment for a further period of two months.

Arguments of the petitioner

The learned counsel for the petitioner submits that in the present case, two points are involved for consideration. Firstly, the independent witnesses

of the seizure have not been examined by the learned court below and there is no explanation for non-examination of these witnesses. He has referred

to a judgment passed by the Hon’ble Supreme Court reported in (1999) (I) Cr.L.J. 19 (Sanspal Singh Vs. State of Delhi )on this point. Secondly,

the Malkhana number of the seized article has not been exhibited and therefore, production of the alleged seized arms from Malkhana has not been

proved.

The learned counsel submits that on account of aforesaid two points, it cannot be said that the prosecution has been able to prove its case beyond all

reasonable doubts against the petitioner and therefore, the impugned judgments passed by the learned trial court as well as the learned lower appellate

court are perverse and are fit to be set-aside.

The learned counsel for the petitioner has also argued that the petitioner was in custody since 15.10.2011 in connection with Kadma P.S. Case No.

162 of 2011 corresponding to G.R. No. 2296 of 2011, but was taken into remand in the present case only upon the petition filed on behalf of the

petitioner on 18.05.2013 and accordingly, the entire period of custody of the petitioner in the present case should be counted right from 15.10.2011 and

some sympathetic view on the point of sentence be taken .

Arguments of the opposite party- State

Learned counsel appearing on behalf of the opposite party, on the other hand, does not dispute that the independent witnesses of the seizure have

not been examined by the learned trial court and that the Malkhana number of the seized article has not been exhibited. However, while opposing the

prayer of the petitioner, he has submitted that considering the evidences on record which have been recorded and considered by the learned courts

below, the aforesaid submissions of the petitioner are fit to be rejected. He submits that this Court has limited jurisdiction in revision and in absence of

any perversity or illegality in the impugned judgments, no interference is called for in the order of conviction and sentence passed by the learned courts

below. He submits that there is enough material on record to prove the case against the petitioner beyond all reasonable doubts and accordingly, the

learned courts below have rightly convicted the petitioner.

The learned counsel appearing on behalf of the opposite party- State further submitted that the custody of the petitioner in the present case can be

counted only from the date on which he was taken on remand in the present case and if he was in custody in another case, the same has no bearing in

this matter.

Findings of this Court

After hearing the learned counsel for the parties, this Court finds that as per case of the prosecution, the informant Sub-inspector of Police, Kadma

Police Station recorded his self-statement on 20.05.2009 at 5:30 hours at Kusum Nagar Pandey Bhatta Kadma by stating that on 20.05.2009 at 02:30

p.m. , he along with police personnel proceeded from Kadma police station for raiding and during the course of raiding, while he was at Kadma Sonari

Link Road, the then Sub Inspector, officer in-charge M.G.M. Police Station, Sub-inspector, officer in-charge Sonari Police station, Sub-inspector,

officer in-charge Parsudih Police Station, Sub-inspector, officer in-charge Birsa Nagar alongwith armed forces came and requested him to join in raid

against one miscreant Ganesh Mahli. At about 3.30 p.m., upon getting confidential information that Gokul Pramanik of Kusum Nagar Pandey Bhatta

kept illegal arms and demanded rangdari (ransom) from people by showing fear and arms, the informant along with police personnel and armed forces

proceeded to Kusum Nagar Pandey Bhatta and reached there at about 4:30 p.m. and surrounded the house of Gokul Pramanik (petitioner) . In the

meantime, one man tried to escape from the house, but they caught hold of him by chasing him in his courtyard and in presence of independent

witnesses, search on his person was conducted. On interrogation, he disclosed his name as Gokul Pramanik son of Arun Pramanik. On search, one six

rounded revolver was recovered from his full pant and on demand, he did not produce any valid paper regarding the said arms. Thereafter, seizure list

was prepared of the said recovered arms and a copy of the seizure list was given to Gokul Pramanik (the petitioner).

The case was registered as Kadma Police Station Case No. 76 of 2009 under Section 25(1-B)(a)/26 of the Arms Act, 1959 against the petitioner.

Before the learned trial court, altogether eight witnesses were examined and during the examination of witnesses, Ext.-I was seizure list, Ext.-II

was self-statement, Ext.-III was formal First Information Report, Ext.-IV was inquiry report and Ext.-V was sanction order.

The learned trial court has considered various arguments of the defence including the arguments that all witnesses produced by the prosecution

were police personnel who were members of the raiding party; no independent witness was examined by the prosecution and even the seizure list

witnesses have not been produced. Further argument of the defence which was considered by the learned trial court was that Malkahana Register

Number was not exhibited and consequently the argument of the defence that prosecution has not been able to prove the case beyond all reasonable

doubts.

The learned trial court considered the aforesaid arguments and appreciated the materials on record and recorded a finding that all the witnesses

examined by the prosecution have well supported the case on the material points of date, time, place, factum and manner of occurrence and has dealt

with the evidence of the witnesses. Thus, the learned trial court found that P.W. 2, P.W. 6 and P.W. 8 have supported the case of the prosecution as

well as corroborated the evidence of P.W. 5- the informant and the material point on the date, place, time, factum and manner of occurrence was also

proved including the factum of recovery of illegal arms in the conscious possession of the petitioner. The learned trial court also considered the plea

regarding Malkhana Register Number and held that from perusal of the evidence available on record, almost all the witnesses examined by

prosecution have fully supported the alleged date and time of occurrence. The learned trial court further held that there is consistent evidence of the

prosecution witnesses and they have fully supported the prosecution case including the recovery of the arms from the conscious possession of the

petitioner when he tried to escape and the learned trial court convicted the petitioner as stated above.

So far as the learned lower appellate court is concerned, the learned appellate court also, after considering the material on record, found that on

secret information raiding party conducted raid in the house of the petitioner and in presence of witnesses, on search from his possession, one country-

made six rounded revolver was recovered. All the members of the raiding party including the informant who have deposed i.e. P.W. 5, P.W. 1, P.W.

3, P.W. 4 and 7 have fully supported the prosecution case. P.W. 8, who is the investigating officer of the case, sent the seized firearm for examination

before P.W. 6, who upon examination of the firearm, submitted its report which is marked as Ext.-IV. As per Ext.- IV the recovered arms were

found to be effective and accordingly, the learned lower appellate court found that the material on record, which has been brought on record by the

prosecution, shows that the arms were recovered from the conscious possession of the petitioner and the petitioner did not have any valid document

for its possession and that the competent authority had also sanctioned the prosecution. The learned lower appellate court also considered that

although the seizure list witnesses have not been examined in the case, but the seizure list has been proved by P.W. 5, P.W. 1, P.W. 3, P.W. 4 and

P.W. 7 and these witnesses have fully supported the case. These witnesses have also repeated the same contention in their cross-examination as they

had said in their evidence-in-chief and thus, the defence has failed to bring any contradiction in the statement of these witnesses during the course of

their cross-examination to create any reasonable doubt upon their testimony.

The learned lower appellate court also found that the learned trial court, in the impugned judgment, has fully considered the materials on record and

passed the judgment of conviction and sentence and the learned lower appellate court also found that the prosecution has brought sufficient material

on record to prove the guilt of the petitioner. Accordingly, the learned lower appellate court also gave a concurrent finding of fact holding that the

prosecution has well proved the charge against the appellant beyond shadow of all reasonable doubt and upheld the judgment of conviction and

sentence against the petitioner.

Upon perusal of the lower court records, this Court finds that on 07.08.2010 an order was passed for issuance of summons upon the remaining

charge-sheeted witnesses and the order sheet further reflects that the summons were also issued, but it appears that ultimately the seizure list

witnesses did not appear before the learned court below for their evidence. This Court is of the considered view that merely because the seizure list

witnesses were not examined before the learned trial court, the same is not enough to set-aside the impugned judgment of conviction and sentence of

the petitioner in revisional jurisdiction. This Court finds that both the learned courts have independently arrived at finding after appreciating the

materials on record that all the witnesses have fully supported the prosecution case and the defence could not create any doubt on the prosecution

case during the course of cross-examination of these witnesses. Non-examination of seizure list witnesses cannot be said to be fatal to the prosecution

case in the aforesaid facts and circumstances of this case where the evidences of the witnesses are absolutely consistent and reliable.

The learned courts below have carefully scrutinized the evidence of police personnel who deposed as witness keeping in view that they formed

part of the raiding team. The learned courts below have arrived at a conclusion that their evidences are consistent regarding the time, place, manner of

occurrence, seizure and the fact that the firearm was sent for examination by Sergeant Major and Sergeant Major has also deposed before the

learned court below supporting the prosecution case. Though the Malkhana Register number as such has not been exhibited, but the manner in which

the seized article was sealed and ultimately produced before the learned court below, has been fully described by the prosecution witnesses. In such

circumstances, the Malkhana Register number having not been exhibited is not fatal to the prosecution case calling for any interference in revisional

jurisdiction where there are concurrent findings of facts. There is no scope in revisional jurisdiction to re-appreciate the evidences on record and come

to a different finding in absence of any perversity or illegality.

This Court has gone through the judgments passed by the learned trial court as well as the learned lower appellate court and finds that the

judgments are well-reasoned judgments and upon consideration of the entire evidences on record, the learned courts below have found that the

prosecution has been able to prove the case against the petitioner beyond all reasonable doubt and accordingly, this Court does not find any reason to

interfere with the judgments passed by the learned courts below.

So far as the argument of the petitioner that the custody of the petitioner in connection with the present case should be taken right from 15.10.2011

when he was in custody in relation to another case is concerned, the same is rejected and the custody of the petitioner in the present case can be

counted only from 18.05.2013 when he was taken on remand when the production warrant was issued against the petitioner in the present case.

However, this Court finds that date of incident is 20.05.2009 and almost more than 11 years have elapsed from the date of incident and the

petitioner has faced the criminal case for a long time. In such circumstances, this Court is of the considered view that ends of justice would be served

if the sentence of the petitioner is modified. Accordingly, the sentence of the petitioner is hereby modified and reduced to 2 ½ (two-and-a-half)

years of Rigorous Imprisonment under Section 25(1-B)(a) of Arms Act with fine of Rs. 5,000/- and 2 (two) years of Rigorous Imprisonment under

Section 26 of the Arms Act with fine of Rs. 5,000/-. Both the sentences are directed to run concurrently. The fine amount is directed to be deposited

within a period of two months from today, failing which the petitioner would serve the sentence awarded by the learned trial court and confirmed by

the learned lower appellate court.

This criminal revision petition is accordingly disposed of.

Bail bond furnished by the petitioner is hereby cancelled.

Let the lower court records be immediately sent back to the court concerned.

Let a copy of this order be communicated to the learned court below through “email/FAXâ€​.