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2008 DIGILAW 131 (PAT)

Naga Dusadh v. State Of Bihar

2008-01-21

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. The appeal is against the Judgment and order dated 12.2.2004/14.2.2004 passed by the learned Special Judge- cum- Sessions judge, Aurangabad, in G.R.No.6/93 arising out of Rafiganj P.S.Case No.56 of 1993 dated 16.4.1993 whereby the appellant was found guilty for committing offence under sections 25(1-b) of Arms Act and sections 212,307 and 353 of the Indian Penal Code and was sentenced to undergo for the period which has already undergone. 2. Prosecution case, in brief, is that on 16.4.1993 while S.I.Pulkit Mishra was on police picket Berhna in connection with law and order he received information that appellant was hiding in the house of Jamuna Ravidas with his associates. He along with others reached there at 6 P.M. and wanted to know about the truth. From the house of Jamuna Ravidas the appellant came out armed with pistol and rashly rushed towards north. Chaukidar disclosed that the person was the appellant. The police chased the appellant then it was threatened by the appellant that if chase is made then the chasing party may be killed. Ultimately he was caught and on search a live cartridge of 12 bore was recovered from his lungi. A diary was also seized from his pocket. His pistol was also seized. The appellant was the Area Commander of the M.C.C. On the basis of the aforesaid statement Police registered Rafiganj P.S. Case No.56/93 dated 16.4.2003 for the offence under sections 212(A),216(A),307 and 353 of the I.P.C. and sections 25 (lb), 26 and 35 of the Arms Act and 3/4 of TADA Act. 3. The matter was investigated and chargesheet was submitted. 4. In order to prove the cease prosecution examined altogether eleven witnesses they are Srikant Sharma P.W.I, Raghubir Tiwari P.W.2, Md. Zainuddin Khan P.W.3, Laxmi Sah P.W.4, Vijay Sharma P.W.5, Nandbin Sharma P.W.6, Mahendra Singh P.W.7, Tej Narain Singh P.W.8, Om Prakash Rai P.W.9, Anand Prasad Sinha P.W.10 and Niranjan Singh P.W.ll. P.Ws.1,2,10 and 11 are formal witnesses on the point of seizure of country made pistol, cartridge and a diary. P.W.10 has proved the sanction for prosecution. P.W.11 has proved the seized material i.e. country made pistol, cartridges and diary. 5. Signature of Sri Kant Singh on the seizure list is Ext.1. Enquiry report was in the hand writing of Raghubir Tiwary which is Ext.3. List of articles is Ext.4. Formal F.I.R.is Ext.5. P.W.10 has proved the sanction for prosecution. P.W.11 has proved the seized material i.e. country made pistol, cartridges and diary. 5. Signature of Sri Kant Singh on the seizure list is Ext.1. Enquiry report was in the hand writing of Raghubir Tiwary which is Ext.3. List of articles is Ext.4. Formal F.I.R.is Ext.5. Fard beyan is Ext.6 and seizurelist is Ext.7. P.Ws. 1 and 2 have examined the seized country made pistol and found the same to be effective. P.W.10 has proved the sanction for prosecution. The seized articles were brought by., P.W.ll* and they were marked as material exhibits. 6. According to the witnesses the police reached at the house of Jamuna Ravidas. Police Officials enquired from him and Sahdeo Paswan about the presence of the appellants. They stated nothing. In the meanwhile the appellant, Nage Dusadh fled from the house of Jamuna Ravidas. He weas chased and caught and in course of search a country made pistol and fired and live cartridges were recovered. In course of chasing he fired a shot upon the police officials. On this point P.Ws.3,4,5,6,7,8 and 9 were examined. There are some contradictions on the point of firing by the appellant. P.W.4,7,8 and 9 have not stated about the firing by the appellant. They have merely stated that the police had gone to the house of Jamuna Ravidas, made enquiry and they had send the appellant, Naga Dusad fleeing from the house of Jamuna Ravidas. They have supported that the police chased, caught the appellant and made seizure. Witnesses, P.W.s,3,5 and 6 have also supported the entire occurrence. 7. Learned counsel for the appellant submitted that no evidence has come that the firing was made by the appellant or firing was with the purpose of killing police officials. He has pointed out that the police examined two witnesses and two contradicted versions have come that the police firing was with the Purpose or killing so it has been submitted by the prosecution charge under sec. 307 of I.P.C. became redundant. , 8. Learned A.P.P. has submitted that no doubt some witnesses have supported the factum of firing and some of the witnesses have not supported the charge. All of them have stated that at the time of raid the appellant was chased, caught and he was searched. Firearms were recovered. 307 of I.P.C. became redundant. , 8. Learned A.P.P. has submitted that no doubt some witnesses have supported the factum of firing and some of the witnesses have not supported the charge. All of them have stated that at the time of raid the appellant was chased, caught and he was searched. Firearms were recovered. But on the point of firing upon the police the evidence has remained incomplete and there are two contradicted evidence on this point. 9. Many of the members of the raiding party have stated that the firing was not done by the appellant upon the police, so, in this view of the matter I find that the evidence so far the charge under sec. 353 of I.P.C. is concerned is not enough and the appellant is not entitled to be convicted for charge under sections 307 and 353 of I.P.C. 10. In the result the appellant is found not guilty for the offence under sections 307 and 353 of I.P.C. and on that he is acquitted. 11. On the question of recovery of arms witnesses are consistent. The seized articles have been made material exhibits. There are ample evidence on the point of raid and seizure of firearms from the appellant So, I an of the view that the court below has rightly corns to the conclusion that the prosecution has proved the charge beyond all reasonable doubt under sec. 25(1-B) of the Arms Act. 12. So, I find the appellant guilty under sec. 25(1-B) of the Arms Act. The appellant has already sufficiently been punished. I modify the sentence to the period already undergone by him in course of the trial. The appeal is dismissed with the modification.