Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 299 (GAU)

Dulal Biswas v. State of Tripura

2009-05-06

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions Trial Case No. 59 (ST/U) of 1995. By the impugned judgment and order aforesaid all the accused-Appellants were convicted for offence under Section 25(1)(a)(b) of the Arms Act and sentenced to suffer rigorous imprisonment for six months each. Being aggrieved by the said judgment and order of the conviction the Appellants have come up with this appeal. The conviction and sentence aforesaid was earlier upheld in appeal by a Single Bench of this Court vide order dated 9.5.2001. An appeal being preferred against the said judgment and order of this Court, the Hon'ble Apex Court vide order dated 12.6.2008, passed in Crl. Appeal No. 269 of 2002 set aside the said judgment of this Court and remitted for fresh consideration. In view of the above this matter has come up for consideration before this Court. 2. I have heard Mr. A.L. Saha, learned Counsel for the Appellants and Mr. B.R. Das Roy, learned PP-in-charge for the State. Perused the materials on record. 3. Submitting on behalf of the accused-Appellants Mr. Saha has advanced the argument that there is no legal evidence against the accused-Appellants and as such the impugned conviction and sentence was bad in law. The learned Counsel further submitted that the prosecution failed to substantiate the seizure of the incriminating materials i.e. the arms and ammunitions from the accused-persons by adducing cogent and independent evidence. It is submitted that there is sufficient contradiction in the evidence of PW 7, a Police Officer who claimed to be present at the time of seizure and the Investigating Officer (PW 9) who made the seizure. In order to appreciate the evidence on record I feel it appropriate to briefly reproduce the evidence of witnesses as follows: PW 1 Sri Rashmi Kr. Noatia, who was cited as one of the witnesses to the seizure in the seizure list (Ext. 3), stated that one night at about 1.30 a.m. he along with others went to the house of Joseph Sichim and that the Police took them to the Police Station. He further stated that the Police had assaulted them. This witness was declared hostile and the prosecution was allowed to cross-examine him. He denied the suggestion that some ammunitions were seized by the Police in his presence. He further stated that the Police had assaulted them. This witness was declared hostile and the prosecution was allowed to cross-examine him. He denied the suggestion that some ammunitions were seized by the Police in his presence. In his cross-examination he further stated that the Police, in the Police Station, forcefully took his signature on some papers after showing some guns therein. This witness did not support the prosecution version of seizure from the accused persons. PW 2 Sri Phani Bhusan Das, an SI of Police stated that he along with SI Sanjit Debbarma (PW 9), on the basis of the secret information, went to the house of Sri Joseph and after entering the house they found some persons with firearms and other incriminating articles. He further stated that 8 persons with 3 country-made guns, one spear and some ammunitions were found. This witness was not a witness to the seizure. In his cross-examination he stated that he could not recognize the miscreants who were found with the incriminating articles. Therefore, from the evidence of PW 1 and PW 2 I find nothing in favour of the prosecution to believe that the seized articles i.e. guns and the ammunitions were recovered from the possession of the accused-Appellants. PW 3 Sri Moloy Gagra, PW 4 Pradip Marak and PW 5 Sri Santi Noatia were cited as witness to the seizure, but the prosecution after tendering them declined to examine. Therefore, it appears that none of the persons in presence of whom the seizure was alleged to be made were examined by the prosecution to substantiate that the seizure was made from the possession of the Appellants. Thus, it can be safely held that the prosecution failed to prove the seizure by adducing independent and cogent evidence. PW 7 was an Inspector of Police and he accompanied the I.O. (PW 9). He stated that the I.O. Sri Sanjit Debbarma, on the basis of the secret information took them to the house of one Joseph Seichm, wherein some persons were found along with arms and ammunitions. He could identify only two accused persons, namely, Dulal Biswas and Subrata Marak. According to this witness, one country-made gun and two regular guns with some jute and gun powder were seized by seizure list (Ext. 3). This witness was not a witness to the seizure. He could identify only two accused persons, namely, Dulal Biswas and Subrata Marak. According to this witness, one country-made gun and two regular guns with some jute and gun powder were seized by seizure list (Ext. 3). This witness was not a witness to the seizure. He contradicted the evidence of PW 2, who stated that three country-made guns were seized. Regarding seizure of gun and type of gun the, PW 7 contradicted the evidence of PW 9 i.e. the I.O. Deposing as PW 9 the I.O. stated that one spear, three country-made guns, a bottle of gun powder and some jute were seized. But according to PW 7 only one country-made gun and two regular guns were seized. This discrepancy in the evidence of the PW 7, PW 9 and PW 2 raises doubt about the seizure alleged by the prosecution. PW 8 SI Dhirendra Mallik examined the seized guns and ammunitions and submitted his report. From the evidence on record, it appears that except the PW 7, PW 2 and PW 9, there is no witness to support the prosecution case. All of them were Police Officers, who accompanied the complainant (I.O.). But they were not witnesses to the seizure. It is not a case that there were no independent persons, but none of the independent witnesses supported the seizure. According to PW 1, a seizure list witness, his signature was taken by Police in blank papers in Police Station. This statement of the PW 1 could not be disproved. PW 9 i.e. the I.O. lodged the complaint/FIR himself. Ends of justice demands that the complainant should not be the Investigating Officer. But in the present case, the complainant himself was the Investigating Officer. Therefore, the prosecution case suffered from serious irregularities. That apart, the accused persons/Appellants and the arms and ammunitions were claimed to be found in the house of one Joseph Seichm. Therefore, Joseph, being the owner of the house, was a vital witness to unearth the truth. Non-examination of such a witness goes against the prosecution. The I.O. also could not state as to from whose possession what item was seized. 4. Therefore, Joseph, being the owner of the house, was a vital witness to unearth the truth. Non-examination of such a witness goes against the prosecution. The I.O. also could not state as to from whose possession what item was seized. 4. It is settled law that in a criminal case the prosecution is duty bound to prove the allegation brought against the accused persons beyond all reasonable doubts and in the event of there being two inferences, one go in favour of the accused persons and the other in favour of the prosecution, the benefit should go to the accused persons. In the present case, as the prosecution failed to prove the seizure of the incriminating articles from the physical possession of the accused persons by examining the witnesses to the seizure I do not find it safe to hold that the incriminating articles were seized from the actual possession of the accused persons. The prosecution story was that the accused persons and the incriminating articles were found in the house of one Mr. Joseph and the house did not belong to the accused persons. Hence, mere finding of the accused persons in such a house, wherein the seized articles were also found, unless it is proved that the articles were found in the actual possession of the accused, cannot be sufficient to safely hold that the accused persons possessed the incriminating articles. As discussed above, there is no convincing evidence to believe that the accused persons were in possession of the seized articles. 5. In view of the above, I am of the considered opinion that the prosecution failed to prove, beyond all reasonable doubt, that the accused persons possessed the said illegal arms and ammunitions. Therefore, they are entitled to get the benefit of doubt and the impugned judgment and order aforesaid is liable to beset aside. 6. In view of the discussion as stated above, the impugned judgment and order dated 15.3.1996 (19.3.1996) passed in Sessions Trial No. 59 of 1995 is set aside and the accused Appellants are set at liberty forthwith. Their bail bonds shall stand discharged. Send back the lower court records. 7. The appeal stands disposed of.