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2006 DIGILAW 1107 (GAU)

Rupon Basumatary v. State of Assam

2006-12-13

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. These two appeals have arisen out of the judgment and order, dated 23.02.01, passed by the learned Additional Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 163(S)/99, convicting the accused-Appellants under Section 25(1)(A) of the Arms Act, and sentencing each of them to suffer rigorous imprisonment for five years and pay fine of Rs. 500/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of six months. 2. The case against the accused-Appellants, as unfolded at the trial, may, in brief, be described thus : During the course of interrogation of two accused persons, namely, Sri Dhruba Basumatary and Sri Dilip Bak, the police came to learn, on 02.06.96, that arms would be found kept at the house of accused Hareswar Basumatary at village Garjuli. The said two accused, namely, Dhruba Basumatary and Dilip Bak also told the police that they would be able to show the place, where the arms could be found. Having made, in this regard, Entry No. 53, dated 02.06.96, in their general diary, at Dhekiajuli Police Station a police party went to the house of accused Hareswar Basumatary and conducted a raid there. During the raid, the police found accused Rupon Basumatary and Hareswar Basumatary sleeping in a room and near accused Rupon Basumatary, one Stangun was found lying and near accused Hareswar Basumatary, one AK 47 rifle was found lying. The arms were seized from accused Rupon Basumatary and Hareswar Basumatary and, upon returning to the police station, Sub-Inspector Maheswar Bora, who had conducted the raid, lodged a formal F.I.R. Based on this F.I.R., a case was registered against the two accused under Section 25(1)(A) of the Arms Act. During investigation, the Tezpur Reserve Armour certified that the said Stangun was a handmade firearm in serviceable condition and that the AK 47 rifle was not in serviceable condition. On completion of investigation, police laid charge-sheet against the two accused aforementioned under Section 25(1)(A) of the Arms Act. 3. To the charge framed against them at the trial, under Section 25(1)(A) of the Arms Act, both the accused pleaded not guilty. In support of their case, prosecution examined six witnesses. On completion of investigation, police laid charge-sheet against the two accused aforementioned under Section 25(1)(A) of the Arms Act. 3. To the charge framed against them at the trial, under Section 25(1)(A) of the Arms Act, both the accused pleaded not guilty. In support of their case, prosecution examined six witnesses. The accused were, then, examined under Section 313 Code of Criminal Procedure and, in their examination aforementioned, both the accused denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found both the accused guilty of the charge framed against them, the learned trial Court convicted the two accused accordingly and passed sentence against them as mentioned hereinabove. Aggrieved by their conviction and the sentence passed against them, the two accused have preferred the present appeals, Criminal Appeal No. 60/2001 having been preferred by accused Rupon Basumatary and the Criminal Appeal No. 74/2001 having been preferred by accused Hareswar Basumatary. 4. I have heard Mr. S.C. Biswas, learned Counsel for the Appellant, Rupon Basumatary. None has appeared on behalf of the accused-Appellant, Hareswar Basumatary. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam. 5. While considering the present appeals, it is pertinent to note that according to the evidence of PW5 (Sub-Inspector Maheswar Bora), who is the informant and also Investigating Officer of this case, on being told by accused Dhruba Basumatary and Dilip Bak that arms would be found at the house of accused Hareswar Basumatary and that they would be able to help the police in recovering the arms, he (PW 5) went to the house of the accused, Hareswar Basumatary, along with a police party and, on conducting a search there, they found two accused sleeping, and one Stangun lying near accused Rupon Basumatary and one AK 47 rifle lying near Hareswar Basumatary. It is in the evidence of PW5 that he, then, seized the said arms. The assertion of PW5 that the arms were found by him, as alleged by him, and/or that arms were seized, in the manner as asserted by him, were seriously disputed by the defence. It is in the evidence of PW5 that he, then, seized the said arms. The assertion of PW5 that the arms were found by him, as alleged by him, and/or that arms were seized, in the manner as asserted by him, were seriously disputed by the defence. Imperative it is, therefore, that this Court determines if the evidence of PW5 as regard the alleged recovery and seizure of the arms could be held to have been proved by the prosecution beyond reasonable doubt. This necessarily requires that the circumstances, surrounding the alleged recovery and seizure, be dispassionately and minutely scrutinized. 6. While considering the evidence adduced in the present case, it is pertinent to point out that according to the evidence of PW1, who was one of the police personnel present in the said police party, there were houses near the house of accused Hareswar Basumatary. Thus, though there were houses near the house of accused Hareswar Basumatary, neither any of his neighbours nor the Gaonbura (i.e. headman of the village) was called by the police to witness the search and seizure, which was to be conducted at the house of the accused Hareswar Basumatary. Dealing with this aspect of the case, the learned trial Court has remarked that at late hours of the night, it was not possible for the police to procure presence of the witnesses, importance could have been attributed to such an observation on of the learned trial Court, had there been evidence to show that some efforts were made by the police to procure presence of witnesses before conducting the search. In this regard, in the absence of any assertion by any of the prosecution witnesses that there was an attempt to procure the presence of witnesses, the observations made by the learned trial Court that it was not possible to procure presence of witnesses, at the time of conducting the search, can be given no credence at all. 7. In this regard, in the absence of any assertion by any of the prosecution witnesses that there was an attempt to procure the presence of witnesses, the observations made by the learned trial Court that it was not possible to procure presence of witnesses, at the time of conducting the search, can be given no credence at all. 7. Bearing in mind what have been indicated above when I turn to evidence of PW 1, I find that though this witness, while giving evidence in his examination-in-chief, asserted that the arms were found and seized at the house of accused Hareswar Basumatary, his cross-examination revealed that he had not even entered into the house or the room from where the alleged recovery was made; rather, at the relevant point of time, he was standing outside the room keeping guard. In such a situation, the evidence of PW1, as regards the alleged recovery of the arms, can be given no importance at all. This impression gets strengthened from the fact that PW1 admits, in his cross-examination, that he does not know as to where exactly the said arms were found lying. 8. Coupled with the above, PW3 and P.W. 4, both of whom are witnesses to the alleged seizure of the arms, have deposed, in tune with each other, then they have put their signatures on the seizure list at the police station on being taken there by the police. Neither these two witnesses were declared hostile by the prosecution nor were they cross-examined. Their evidence therefore, remained unshaken and their evidence makes it abundantly clear mat though arms were alleged to have been recovered from the house of accused Hareswar Basumatary, no seizure of the arms took place there. This apart, the seized arms were, admittedly, not sealed and the evidence of PW2, who is the armour at Tezpur Police Reserve, is that he had certified that the Stangun was a handmade one, in serviceable condition, and that the AK 47 rifle was not in serviceable condition by merely looking at the arms and not by opening the same. There is, thus, no cogent and reliable evidence to show that the articles, which were seized as Stangun and AK 47 rifle, were really firearms. There is, thus, no cogent and reliable evidence to show that the articles, which were seized as Stangun and AK 47 rifle, were really firearms. This apart, in the absence of credible evidence of seizure and in the complete absence of evidence showing that the arms were sealed at the time of making seizure thereof, it cannot be concluded that the arms, examined by PW2, were the very arms, which were allegedly seized from the house of accused Hareswar Basumatary. 9. What can also not be ignored is that according to PW5, he is the informant of this case and also the Investigating Officer. This was highly improper. Moreover, according to the evidence of PW5, he had entered into the room, where the arms were found, along with Sub-Inspector Pabitra Pran Bora; but even Pabitra Pran Bora has not been examined, as a witness, at the trial. 10. What crystallizes from the above discussion is that there is no credible, convincing, reliable and safe evidence to hold that arms were found and seized as alleged by PW5. In the face of such weak nature of evidence, it could not have been legally held by the learned trial Court that the recovery of arms was proved beyond all reasonable doubt. 11. Because of what have been discussed and pointed out above, conviction of the accused-Appellants for illegal possession of arms cannot be sustained. 12. In the result and for the reasons discussed above, these two appeals succeed. The impugned judgment and order are hereby set aside. The accused-Appellants are held not guilty of the offence charged with and are acquitted of the same. 13. Bail bonds of the accused are cancelled and their sureties shall stand discharged. 14. Send back the LCR. Appeal allowed