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2007 DIGILAW 229 (JHR)

Barjesh Singh v. State Of Jharkhand

2007-04-02

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Sole appellant Brajesh Singh stands convicted for the offence punishable under Sections 25(a) of the Arms Act and sentenced to serve rigorous imprisonment for three years, by the Additional Sessions Judge, Fast Track Court No. I, Palmau at Daltonganj in Sessions Trial No. 462 of 1983. 2. Brief facts leading to this appeal are that in the evening of 29.6.1982 at 7.00 P.M., informant Kishori Ram, Officer-in-charge, Hussainabad Police Station on being informed that seven-.eight criminals armed with weapons have assembled near a lonely place to commit dacoity proceed for Deori Bazar. As further stated, he found that six-eight persons assembled at the arrack shop were consuming arrack. The police raided the shop, out of eight persons, six could manage to flee away, but the police could arrest the appellant with Abhay Singh. It is further stated that police searched these two arrested persons who were found carrying loaded country made pistol and extra cartridges in their pocket. Accordingly, the police arrested the two persons, seized the weapons and remanded them in custody, as they could not produce any document to show the arms being legally procured. 3. The police started investigating after registering Hussainabad Police Station Case No. 136 of 1982 under Sections 399/402 of the Indian Penal Code, and Section 25(a) of the Arms Act against two arrested persons and five-six others. However, charge-sheet was submitted against only two persons under Sections 399/402 of the Indian Penal Code, and Section 25(a) of the Arms Act. The case of the appellant was committed to the Court of Sessions where charges were framed against two accused persons on 26.9.1987, denied by them. Later on, co-accused Abhay Singh jumped bail and was declared absconder. The appellant faced trial and ultimately was convicted for the offence under Section 25(a) of the Arms Act. The prosecution failed to prove the charges under Sections 399/402 of the Indian Penal Code. The appellant has been sentenced to serve rigorous imprisonment for three years. 4. The present appeal has been preferred mainly on the grounds that when the main offences were not proved, the conviction of the appellant under Arms Act is not maintainable. It is also asserted that the seizure list witnesses have not supported the prosecution case as they became hostile. According to Mr. 4. The present appeal has been preferred mainly on the grounds that when the main offences were not proved, the conviction of the appellant under Arms Act is not maintainable. It is also asserted that the seizure list witnesses have not supported the prosecution case as they became hostile. According to Mr. Surendra Prasad Sinha, learned Counsel appearing on behalf of the appellant, non- examination of the informant-cum-investigating officer is fatal for the prosecution case. It is further asserted that the witnesses supporting the prosecution case after lapse of five-six years could not have identified him. Therefore, in the present facts, the conviction of the appellant after twenty years to be set aside. 5. I have minutely gone through the materials on records. The occurrence is admittedly of 29th of June 1982. The witnesses examined on behalf of the prosecution after framing of charge starts from January 1988. PW 1 Jagdish Sharma, PW 2 Bishwa Uraon are members of raiding party, who supported the prosecution case. PW 2 has admitted that he could not name the arrested persons. PW 3, another member of the raiding party, failed to identify the appellant. PW 4 has been tendered. PW 5 has been declared hostile, said to be the seizure list witness. PW 6 has formally proved the sanction obtained for prosecuting the appellant in this case. PW 7 is the in-charge of Malkhana from where two country made pistols were brought to be proved as material Exts. 1 and 2 along with cartridges. He admitted that the numbers pasted on these weapons could not be read correctly neither it carries any mark of identification. PW 8 further proved that these arms were sent for examination by Ballistic Expert. The investigating officer and informant Kishore Ram have not been examined before the trial Court. The fact remains that in absence of the Informant, the prosecution relied upon witnesses i.e. PW 1, PW 2, PW 3 to support the story of recovery of unlicensed arms from possession of the appellant. The independent witness PW 5 has been declared hostile by the prosecution. PW 2 did not identify the accused by name though mentions that the accused present in the Court were arrested by the raiding team. The production of weapons from Court malkhana. has been proved but without their identity normally attached and pasted with the weapons for their identification during trial. PW 2 did not identify the accused by name though mentions that the accused present in the Court were arrested by the raiding team. The production of weapons from Court malkhana. has been proved but without their identity normally attached and pasted with the weapons for their identification during trial. It is also apparent that the appellant was arrested in June 1982. He was convicted in March 2002, nearly after twenty years of trial that too in absence of the informant and the investigating officer. The impugned judgment dated 23.3.2002 does not show any other material on record in support of prosecution to rely upon the statements of PW 1, PW 2 and PW 3. In absence of the informant when the main offence under Sections 399/402 of the Indian Penal Code, have been found not proved. Therefore, the conviction under Section 25(a) of the Arms Act without having any independent witness of seizure is not maintainable. 6. Having considered the facts and circumstances discussed above, I find and hold that the prosecution in the facts of present case has not been able to prove beyond doubts the charge against the appellant. As such, the present appeal has got merit and deserves to be allowed. In the result, the present appeal is allowed and the judgment of the trial Court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and further discharged from the liabilities of his bail bonds.