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2004 DIGILAW 336 (JHR)

Rauf Sah @ Lakhia v. State of Bihar

2004-03-26

HARI SHANKAR PRASAD

body2004
Judgment Hari Shankar Prasad.-This appeal is directed against the judgment of conviction and order of sentence dated 27.9.1999 passed in Sessions Trial No. 44 of 1998 whereby and whereunder the learned Sessions Judge. Bokaro held the appellant guilty under Section 5 of the Explosive Substance Act and convicted and sentenced him to undergo R.1. for five years and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo S.I. for one month. 2. Prosecution case in brief is that P.N. Singh. Officer-in-charge of Chas P.S. submitted a written report to the Officer-in-charge of Sector-XII P.S. to the effect that on 30.5.1997 at 10.00 AM he along with other police personnel and reserve force of his police station raided the house of Rauf Sah @ Lakhia in village Bharra P.S. Chas in connection with investigation of Chas P.S. Case No. 128 of 1997 under Section 302 I.P.C. and 27 of the Arms Act and in course of investigation of that case, he arrested him and on interrogation, Rauf Sah disclosed that he along with his associate Alam Ansari of village Bharra P.S. Chas after committing murder went to Sector-XII in quarter no. 2070 by Hero Honda motorcycle bearing registration no. BR-20A5090. Rauf Sah further disclosed that Said eo Singh had his office in this quarter no. 2070, but after his death Birendra Singh @ Biren Singh has been living in that quarter and he and his associate Alam Ansari take shelter after committing crime. He further disclosed that he had kept Hero Honda motorcycle bearing registration no. BR-20A-5090 and a pistol used in commission of murder in one of the rooms of that quarter. He further disclosed that four live bombs have been kept concealed in the earthen Hand; with Pual in a room of that quarter. On this confessional statement, the informant along with the police party' and the accused Rauf Sah went to that place and in the way, he took two local independent witnesses namely Naresh Kumar and Om Shankar Choudnaryand reached quarter no. 2070 and on pointing out of accused Rauf Sah @ Lakhia, four live bombs were recovered from an earthen pot kept covered with straw of pual in a room. Other articles were also seized' along with four live bombs. 2070 and on pointing out of accused Rauf Sah @ Lakhia, four live bombs were recovered from an earthen pot kept covered with straw of pual in a room. Other articles were also seized' along with four live bombs. In presence of independent witnesses, these articles were seized and seizure list was prepared and signature of independent witnesses was also obtained on the seizure list. On this written report, the Bokaro Steel City P.S. Case No. 150 of 1997 under Sections 4/5 of the Explosive Substance Act was registered and after completion of investigation, charge sheet was submitted under Sections 3,4 and 5 of the Explosive Substance Act. Cognizance in the case was taken and the case was committed to the court of Sessions and the learned Sessions Judge, Bokaro after recording the evidence of witnesses-both oral and documentary held the appellant guilty and convicted and sentenced him as aforesaid. 3. Prosecution has examined nine witnesses in this case. PW7 is Panchanan Singh. He is informant of the case. PW1 is Shambhu Saran Prasad. PW4 is Sheo Das Ram. PW5 is Binay Kumar Thakur. PW6 is Ram Pravesh Singh. PW8 is Rabindra Prasad Singh. He is Sergeant Major and PW9 is Prem Kumar. PWs 1,4,5,6,8 and 9 are all police officials who were involved in the raid. PWs 2 and 3 are witnesses to the seizure list but they have been declared hostile. 4. PW 7 is the informant of the case. According to this witness, he along with other police officials raided the house of the appellant in connection with investigation of a murder case of Chas P.S. Case No. 128/97 under Sections 302 IPC and 27 of the Arms Act and arrested this appellant who made confessional statement and on his confession, four live bombs were recovered from the RO. which is a house bearing no. 2070 and live bombs were seized in their presence and seizure list was prepared and their signatures were obtained on the seizure list. Other police officials have also corroborated the evidence of PW7 and they have stated that they also participated in the raid and in their presence four live bombs were recovered on pointing out of this appellant from earthen pot kept concealed in one of the rooms of the house no. 2070. Other police officials have also corroborated the evidence of PW7 and they have stated that they also participated in the raid and in their presence four live bombs were recovered on pointing out of this appellant from earthen pot kept concealed in one of the rooms of the house no. 2070. Though, PWs 2 and 3 have identified their signatures appearing on the seizure list, but have stated that no such bombs were recovered in their presence. However, PWs 7 and 9 besides other witnesses have supported the recovery of bombs, preparation of seizure list and as such, recovery of live bombs stands proved by the prosecution as claimed by the prosecution. 5. Learned counsel appearing for the appellant submitted that not a single independent witness has been examined in this case and two independent witnesses, who are witness to the seizure list, have been examined but both of them have turned hostile and, therefore, recovery does not stand proved. It was also pointed out that the appellant has been sentenced to undergo R.L for five years and this appellant has remained in custody for more than two years i.e. right from the date of his arrest i.e. 30.5.1997 till 12.7.1999 and after judgment of conviction and order of sentence passed on 27.9.1999 he again remanded to custody till 7.10.1999 and further, no case under Section 5 of the Explosive Substance Act is made out against the appellant. 6. From perusal of evidence and materials brought on record, it appears that four live bombs were recovered on the pointing out of this appellant and this recovery was made in the presence of PWs 2 and 3, although they have turned hostile, but they have identified their signatures on the seizure list and at the same time, other officials corroborated the evidence 0.1 PW7 that live bombs were recovered from house no. 2070 in presence of the witnesses. However, considering the fact that the appellant has already remained in custody for more than two years while he was sentenced to undergo R.I. for five years and further that the case is of the year 1997 and more than seven years since then have elapsed and the period already undergone by him in custody will meet the ends of justice, this appeal is dismissed with the modification in the sentence to the period already undergone by him in custody.