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2012 DIGILAW 490 (PAT)

Om Prakash Sharma v. State of Bihar

2012-03-21

MANDHATA SINGH

body2012
JUDGMENT MANDHATA SINGH, J. 1. Prosecution case initiated on fardbeyan of one Dinanath Prasad, in brief, is that on 26.10.1996 he along with S.I. Krishna Kumar Singh (P.W.1), constable no. 436 Surajnarayan Uraon, No. 405 Lakhiram Marandi (P.W.3), No. 449 Dhirendra Kumar (P.W.5) and No. 1580, Janardhan Thakur (P.W.4) were on law and order duty, reached village Bindwara received information about illegal manufacturing of fire arms by sons of Singheshwer Prasad Sharma. Appellants are sons of Singheshwar Prasad Sharma. Their house was raided. Search was conducted in presence of two local independent witnesses, namely Satish Kumar Mandal (P.W.6) and Ashok Kumar Sharma (P.W.7). 2. Appellant no.1 was apprehended who was engaged in illegal manufacturing of fire arms. An iron vios fitted in a wooden frame, an iron shaw and three shaws, retti, Iron frock, hammer, two chheni, one summa, iron body of pistol, trigger of pistol, one iron trigger and one iron spring recovered from there and they were seized. Accordingly, a seizure list was prepared. One of its copy was handed over to apprehended accused-appellant, Om Prakash Sharma, his signature was obtained. He was asked to justify keeping of those articles but there was no proper reply. 3. Informant was further informed about illegal manufacturing of arms by appellant no.2 Subodh Kumar Sharma also, so a search was conducted in presence of local independent witnesses. From his house, there was recovery of iron vios fitted with wood, one head, one hand vios, two barrel of pistol about 6” in length, two wire of brass, handle of a butt of pistol, trigger guard of pistol, six small and big retti, shaw of iron plate for cutting the iron, sand paper, one frock and two small sheet of iron were recovered (seized) and accordingly, seizure list was prepared which was signed by independent witnesses also. 4. The trial is ended in conviction and sentence to accused-appellants for the offence under Sections 25 (1)(a) and 26 (2) of the Arms Act. 5. In all, 11 witnesses are examined in the case. They are P.W.1 Krishna Kumar Singh, P.W.2 Arun Kumar Ambasta, P.W.3 Lakkhiram Marandi, P.W. 4 Janardhan Thakur, P.W.5 Dhirendra Kumar, P.W.6 Shashi Kumar Mandal, P.W.7 Ashok Kumar Sharma, P.W.8 Manish Kumar Sah, P.W.9 Dinanath Prasad, P.W.10 Gannaur Mahato and P.W.11 Ramrup Yadav. 6. 5. In all, 11 witnesses are examined in the case. They are P.W.1 Krishna Kumar Singh, P.W.2 Arun Kumar Ambasta, P.W.3 Lakkhiram Marandi, P.W. 4 Janardhan Thakur, P.W.5 Dhirendra Kumar, P.W.6 Shashi Kumar Mandal, P.W.7 Ashok Kumar Sharma, P.W.8 Manish Kumar Sah, P.W.9 Dinanath Prasad, P.W.10 Gannaur Mahato and P.W.11 Ramrup Yadav. 6. Ext.1 is Fardbeyan, Ext.2 is the seizure list from the house of Om Prakash Sharma, Ext.3 is the seizure list for seizure of articles from the house of Subodh Kumar Sharma, Ext.4 is a report of arms testing, Ext. 5 is the signature of P.W.6 on seizure list, Ext. 5/1 is the signature of P.W.7 on seizure list, Ext.5/2 is the signature of P.W.8 on the seizure list, Ext. 5/3 is signature of S.I., B.P. Chaudhary on formal F.I.R., Ext. 5/4 is the signature of the District Magistrate on the prosecution version, Ext.6 is the writing of K.K. Singh, S.I., on plain paper which is pasted on plastic bag on the material, Ext. 7 is the writing of K.K. Singh on plain paper which is pasted on plastic bag containing material and Ext.8 is the sanction report. 7. Learned counsel appearing for the accused-appellants raised a single point in the case to disbelieve recovery of any article, if really was part of fire arm. On this point reliance is placed on A.I.R. 1998 S.C 1660 that seized arms if is not sealed and not produced in Court in sealed cover that may not be believed, as in the instant case. Appellant of A.I.R. 1998 S.C. 1660 was convicted for the offence under Section 5 of the Terrorists and Disruptive Activities (prevention) Act, 1987 and section 25 of the Arms Act. One of mouser .30 bore and 7 live cartridges were recovered from his (accused of that case) possession that weapon was produced in Court without any sealed cover, so the recovery if really was of that weapon is doubted by their Lordships, while deciding Criminal Appeal No. 1086 of 1997. 8. Admittedly, in the instant case also, there is recovery but some distinction is pointed out on behalf of the learned A.P.P. that there is no provision in the Cr. P.C. or the Arms Act about sealing of the seized arms, only its identification is necessary. 8. Admittedly, in the instant case also, there is recovery but some distinction is pointed out on behalf of the learned A.P.P. that there is no provision in the Cr. P.C. or the Arms Act about sealing of the seized arms, only its identification is necessary. He is also in agreement that once an arm is recovered, seized and produced in Court, its identification is necessary and seal is one of the modes for the identification. In the instant case, seized materials including part of fire arms in procession of manufacturing arms produced in Court but with some identification as piece of paper is pasted with produced articles bearing number of case and other details. So, in my view, also A.I.R. 1998 S.C. 1660 is not applicable in this case. 9. On the observations made above, evidence on record and circumstance of the case, this criminal appeal is dismissed modifying the sentence, rather specifying that sentence in both the sections shall run concurrently. Accordingly, the Judgment of conviction dated 23.02.1999 and Order of sentence dated 24.02.1999 passed by the Additional Sessions Judge-IV, Munger in Sessions Case No. 223 of 1997 after modification is hereby affirmed. 10. Appellant no.1 Om Prakash Sharma has died, his appeal is abated. Bail bond and sureties on behalf of the appellant no.1 is hereby cancelled and he is directed to surrender before the Court below to serve the rest of the sentence (punishment). Trial Court is also directed to take effective initiative for his (appellant no.2, Subodh Sharma’s) arrest. 11. Office is directed to send the records along with a copy of this Judgment to the Trial Court.