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Judgment
Heard Mr. Surendra Prasad Sinha, learned counsel for the appellant and Mr. M. K. Mishra, learned counsel for the State.
The present appeal is directed against the Judgment of conviction and order of sentence dated 22.01.2019, passed by the learned Additional Sessions Judge – II, Palamau at Daltonganj, in Sessions Trial No.226 of 2018, arising out of Hussainabad P.S. Case No.89 of 2017, corresponding to G.R No.1065 of 2017, whereby the appellant has been convicted for the offence under Section 25(1-B)(a) of the Arms Act and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs.10,000/- (Ten thousand) and in default thereof, he has been sentenced to further undergo Simple Imprisonment for a period of four months.
The prosecution story, in brief, is based on the written report of the informant A.S.I Bhadav Soren, is that on 25.07.2017 while he was on evening patrolling duty along with other police personnel and while they were near J. P. Chowk, he received an information from the Sub-Divisional Police Officer, Hussainabad, that the named accused of Hussainabad P.S case No.40/17, Mokaram Ansari was coming from his village riding on a red coloured motorcycle. The Officer-in-Charge has also instructed him to arrest the accused. At around 8:10 pm, the police team was near Bir Kuanr Baba Sthan at a distance of about 700 m from village Banshi Bigha on Japla Pathra main road, a motorcycle was seen coming. When the rider was directed to stop, he left his motorcycle and started running towards the field leaving the road. He was chased and caught. It has further been stated that as the place was lonely, the person who revealed his name as Mokaram Ansari was frisked in presence of two members of the police team itself. A country made loaded pistol was found stuck inside his trouser on the left. Thereafter, seizure list was prepared and carbon copy of the same was also given to the accused.
On the basis of above information of the informant, Hussainabad P.S Case No.89 of 2017 dated 25.07.2017 was registered against the accused, Mokaram Ansari, under Sections 25(1-A) & 26 of the Arms Act and the police, after completing the investigation, has submitted the charge-sheet under Sections 25(1-b)A/ 26 of the Arms Act. The charge has been framed against the accused under Sections 25(1-A)/26 of the Arms Act on 07.07.2018 for which sanction has also been granted. Thereafter, the case has been committed to the court of Sessions to which the appellant has pleaded innocence and claimed to be tried and accordingly, the trial has commenced.
To substantiate the charges, the prosecution has examined altogether 07 witnesses and their depositions, in short, are as follows :-
P.W.-1, Satendra Pal, Constable, is the member of the raiding party. He is also a seizure list witness. He has supported the prosecution story.
In cross-examination, he has admitted that the place of occurrence was dark. He has caught the accused but the search was conducted by the informant. During search, one loaded country made pistol was recovered for which no paper was produced by the accused.
P.W.-2, Yogendra Baitha, is also the member of the raiding party and a seizure list witness. He has identified the seizure list (Ext.-1/1). He has also identified the accused in the court.
In cross-examination, he has stated that the accused was firstly caught by P.W.-1 and then by him and thereafter rest of the policemen came there. He has admitted that due to night no witness was called from the nearby village. He has admitted that no search paper was prepared.
He has made contradictory statement that the accused was searched by him while P.W.-1 has admitted that the accused was searched by the informant.
P.W.-3, Dinesh Ram, is also the member of the raiding party. He has supported the prosecution story. In his chief examination, he has deposed that the accused was caught with country made loaded pistol. He has stated that the seizure list was prepared by the informant and signed by two constables.
In cross-examination, he has admitted that he has not signed in the seizure list.
P.W.-4, Shyam Bihari Yadav, A.S.I, is also the member of the raiding party. He has supported the prosecution story.
In cross-examination, he has stated that he had received information near J.P. Chowk which contradicts with the case as the informant has firstly received the information.
He has stated that at the place of incident several houses and shops were there but there is no independent witness to the seizure.
P.W.-5, Bhadaw Soren, S.I, is the informant of the case. He has supported the case. He has stated that after completion of raid, he has arrested the accused and seized the arms and live ammunition of 8 mm and thereafter the seizure list was prepared. He has also bought the seized articles in the court from malkhana. He has stated that the arms bear the initial of the SDJM dated 26.05.2017 and by the Sergeant Major dated 27.05.207. The pistol and cartridges have been marked as material Ext.- I and I/a respectively.
In cross-examination, he has admitted that there was neither any signature of witnesses on the material exhibits nor seal has been done on the same. He has stated that he cannot say whether the I.O has sent the seized articles before the Sergeant Major for examination in a sealed condition or not. He has not sealed the seized articles.
P.W.-6, Samir Kumar Mahto, is the Sergeant Major who has tested the seized arms an ammunitions and found the same effective and cause loss to life.
In cross-examination, he has admitted that the seized items do not bear any signature of any witnesses. He has examined the arms of .315 bore with same bore of cartridge.
P.W.-7, Uday Prasad, is the Investigating Officer of the case. He has deposed that he has investigated the case and took the statement of the informant and other witnesses and thereafter, sent the seized articles to the Sergeant Major for examination. He also got the sanction order from the Authority.
In cross-examination, he has stated that he has submitted the charge-sheet on the basis of supervision note of the senior officer. He has admitted that he does not know as to whether .315 bore country made pistol and cartridge comes under the purview of prohibited arms or not. He has further stated that he saw the arms in the police station in a wrapped condition but it was not sealed and stamped. He also admits that he did not prepare the sketch map of the place of occurrence.
On consideration of above materials on record, the trial Court has found the accused-appellant guilty for the offence under Sections 25(1-B)(a) of Arms Act and sentenced him, as stated above.
Being aggrieved by the aforesaid judgment of conviction, the appellant has preferred the present appeal.
Referring to the above materials available on record, learned counsel for the appellant has assailed the judgment of conviction on the following grounds :-
sealing of the arms has not been made at the place of occurrence and there is no independent seizure list witness.
no identity mark has been made on the seized weapons and further, description of the weapons varies in the statement of the witnesses as well as in the examination report. Thus, the identity of the weapons has not been established.
as per the statement of P.W.-6 i.e. the Sergeant Major, he has fired the seized live cartridge and as such he has deposited the empty cartridge in the court, but the material Ext.-I/a does not mention that the cartridge, produced in the court, was whether live or empty.
On the basis of above materials, it has been submitted by the learned counsel for the appellant that since the seizure as well as the identification of the weapon is doubtful, the prosecution has utterly failed to bring the charge within the four corners of the proved fact and as such, the appellant deserves the judgment of acquittal.
On the other hand, learned counsel for the State has supported the judgment of conviction and order of sentence and it has been submitted that the raiding party have clearly stated regarding the seizure of the weapons and the seized weapons have been found to be effective and the trial court, after considering the facts of the case and the nature of crime, has punished the appellant in lessor offence, which is otherwise justified.
Having heard learned counsel for the parties and from perusal of the record, it appears that :-
the sealing of the arms has not been done at the place of occurrence neither the procedure has been disclosed by the witnesses which does not inspire confidence to this Court.
the nature of weapon gets different version by the different witnesses, which also creates doubt about the prosecution story.
the material Ext.-I/a also creates doubt, as it has not been disclosed as to whether the deposited cartridge was alive or empty.
In view of above discussions, this Court finds that the conviction of the appellant is not sustainable. Accordingly, the Judgment of conviction and order of sentence dated 22.01.2019, passed by the learned Additional Sessions Judge – II, Palamau at Daltonganj, in Sessions Trial No.226 of 2018, arising out of Hussainabad P.S. Case No.89 of 2017, corresponding to G.R No.1065 of 2017 is, hereby, quashed and set aside.
In the result, the appeal stands allowed and accordingly disposed of.
The appellant is on bail, hence, he is discharged from the liability of bail bond.
Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.