Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 975 (JHR)

Sheikh Sabir v. State of Jharkhand

2009-07-15

PRADEEP KUMAR

body2009
JUDGMENT By Court: Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal is directed against the judgment of conviction and sentence dated 15th of May, 2002 passed in Sessions Trial Case No.305 of 1986 by which judgment the learned 5th Additional Sessions Judge, Dhanbad Mr. Sharang Dhar Singh acquitted all the four accused persons from the charges leveled against the accused persons under Section 399 of the Indian Penal Code but convicted all of them under Section 402 of the Indian Penal Code. 3. The prosecution case was started on the basis of the fradbeyan recorded by the Officer-in-charge Nirsa Police Station in the night of 5.9.1984, stating therein that on the basis of secret information in the last night i.e. 4.9.1984 at about 11 P.M. in the night that some criminals have gathered with deadly weapons in ‘Rajpura Maidan’ in the dilapidated temple. With the help of other police officials he made raid after taking help of officer-in-charge, Chirkunda Police Station, sub-inspector Raj Kishore Prasad and others. He stated that he took two independent witnesses Kali Charn Napti and Ambika Singh with him. On raid, police alleged that he arrested seven persons, who disclosed their name as Nagen Gope, Sarju Mian, Nandi Munda, Punka Bauri, Jaddu Bauri, and Sheikh Irshad and others two to three dacoits who ran away. In the presence of two independent witnesses, kali Charn Napit and Ambika Singh, he recovered four live bombs from a bag (jhola) from the possession of accused Nagen Gope, two life cartridges from the possession of accused Sheikh Irshad. The other accused Sheikh Sabir was arrested subsequently; he was named by the co-accused persons. 4. On the basis of the said F.I.R., the case was registered under Sections 399 & 402 of the Indian Penal Code and after investigation, police submitted charge-sheet in the said case. 5. Since, the case was exclusively tried by the Court of Sessions and the learned Magistrate after taking cognizance of the case committed the same to the court of Sessions and subsequently the case was tried by th Additional Sessions Judge, Dhanbad who after investigation found four appellants guilty only under Section 402 of the Indian Penal Code. 6. 5. Since, the case was exclusively tried by the Court of Sessions and the learned Magistrate after taking cognizance of the case committed the same to the court of Sessions and subsequently the case was tried by th Additional Sessions Judge, Dhanbad who after investigation found four appellants guilty only under Section 402 of the Indian Penal Code. 6. It has been submitted by the learned counsel for the appellants that the prosecution has failed to prove that any arms and ammunitions were recovered from the possession of the appellants. No seizure list was brought on record to prove seizure during the trial and accordingly three appellants were acquitted from the charge under Section 399 of the Indian Penal Code. However, without being any evidence that they had assembled there for committing any dacoity, the trial court wrongly convicted the accused under Section 402 of the Indian Penal code and hence the finding of conviction and sentence is bad in law and fit to be set-aside. 7. Learned counsel for the State opposed the prayer and submitted that although the prosecution failed to prove the recovery of the arms and ammunitions from the possession of the appellants, which was seized in that night, but it has been proved that they had assembled there for committing some crime and as such the court rightly found all the accused guilty under Section 402 of the Indian Penal Code. 8. After hearing both the parties and going through the records, I find that the in order to prove the charges, the prosecution has examined four witnesses. P.W.1 is Awdhesh Kumar Singh, informant, Officer in-Charge Nirsha Police Station P.W.2 is Prahlad Singh, Officer in-charge of Barmasia Police Station, P.W.3 is Yudhithir Prasad Thakur and P.W.4 is Raj Kishore Prasad, the then officer in-charge Chirkunda Police Station. P.W.1 is the informant has proved the fact that he received secret information on 4.9.1984 that some criminals have gathered in the dilapidated temple near Rajpura field. Then he gave information to other police station and that the raid party went with informant and saw that eight to ten persons were sitting inside the temple. All the accused persons started running away. He stated that seven persons were arrested and the named accused persons including the appellant Sheikh Irshad and Nagen Gope were arrested and the accused Sheikh Sabir ran away. All the accused persons started running away. He stated that seven persons were arrested and the named accused persons including the appellant Sheikh Irshad and Nagen Gope were arrested and the accused Sheikh Sabir ran away. He stated that four live bombs were recovered from the possession of Nagen Gope and two live cartridges from the pocket of Sheikh Irshad. They also recovered some ‘cigarette packets’, ‘machies’, ‘chappals’, etc. After investigation, he submitted charge-sheet in the case. P.W.2 Prahalad Singh has also stated the same fact. P.W.3 Yudhisthir Prasad Thakur is the formal witness who has proved the formal F.I.R. as Exhibit-4. P.W.4 Raj Kishore Prasad has also proved the recovery of Mombati, Cigarette, Machis etc from the seizure list, Exhibit-2. These are the four official witnesses, who were examined in trial. Two independent witnesses in whose presence all accused were arrested and recovery was made, were not examined during trial. 9. It is relevant to note that the learned Trial Court found that in para25 of the judgment that the prosecution miserably failed to prove that any explosive substance or arms and ammunitions were recovered from the possession of the accused persons, since neither arms and ammunitions recovered were exhibited as material exhibits during trial nor any seizure list was produced and proved by the prosecution and considering the said fact, acquitted the appellants from the charges under Section 399 of the Indian Penal Code. 10. In my opinion, in absence of the examination of the independent witnesses and in absence of any seizure list to prove recovery of arms and ammunition from the possession of the appellant, the prosecution case has become full of doubts and the conviction of the appellant under Section 402 of the Indian Penal Code is also doubtful and as such the order of conviction and sentence made under Section 402 of the IPC is also set-aside. The appellants are on bail. Accordingly they are released from the bail bond. The appeal is accordingly allowed.