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2013 DIGILAW 686 (PAT)

Saroj Yadav v. State Of Bihar

2013-06-25

ADITYA KUMAR TRIVEDI

body2013
ORDER Heard learned counsel for the petitioner as well as learned APP for the State. 2. Instant revision has been filed against judgment of conviction & sentence dated 24.05.2012 passed by Mr. R.K. Singh, Judicial Magistrate, Siwan in G.R. No. 887/2011, Tr. No. 2772/2012 whereby and whereunder petitioner, Saroj Yadav along with co-accused Parmatma Yadav @ Bhuwar Yadav were convicted for an offence punishable under Sections 25(1-B) a 26 read with 35 of the Arms Act and directed both of them independently to undergo R.I. for three years as well as fined Rs. 5,000/- in default thereof to undergo R.I. for 9 months in terms of 25(1-B) a /35 as well as under Section 26 (1)/35 of the Arms Act respectively with a further direction to run the sentences concurrently as well as the judgment dated 31.08.2012 passed by 1st Additional Sessions Judge, Siwan in Cr.Appeal No.12/2012 whereby and whereunder the learned appellate court confirmed the finding arrived at by the learned trial court, however, reduced the quantum of sentence to undergo imprisonment for 20 months as well as slapped fine of Rs.3,000/- under Section 25(1-B) a /35, 26 (1)/35 of the Arms Act respectively and in default of payment of fine to undergo 3 months under each head with a direction to run the sentences concurrently. 3. Learned counsel for the petitioner while challenging the successive judgments of conviction and sentence has submitted that it is a clear case of plantation and that is the reason behind presence of inconsistency amongst evidence of the PWs so far recovery of live cartridge from the possession of petitioner is concerned. It has further been submitted that petitioner would not have been convicted with aid of Section 35 of the Arms Act because of the fact that prosecution has not been able to substantiate that the country made loaded pistol possessed by Bhuwar Yadav having properly concealed was ever known to the petitioner. In likewise manner, it has also been submitted that mere possession of cartridge will serve no purpose that too in such meager number. Therefore, conviction of the petitioner is not at all justifiable and is fit to be set aside. 4. It has further been submitted that only police officials are persons who have supported the case of the prosecution. In likewise manner, it has also been submitted that mere possession of cartridge will serve no purpose that too in such meager number. Therefore, conviction of the petitioner is not at all justifiable and is fit to be set aside. 4. It has further been submitted that only police officials are persons who have supported the case of the prosecution. Two independent witnesses who happens to be the seizure list witness did not support the case of the prosecution and on account thereof, they were declared hostile. It has further been submitted that from the evidence of informant itself it is apparent that the seized fire-arm along with cartridge were not at all sealed under proper wrapper nor the same has been produced before the court in such condition. Then it has been submitted that actually on account of denial by the petitioner in getting himself exposed to police, is the cause of false implication. 5. On the other hand, learned APP opposed the prayer and submitted that so far finding over facts is concerned unless and until there happens to be glaring defect or the learned trial court had committed manifest error, the same cannot be brushed aside. Then referring the evidence on record sumbmitted that the learned successive courts have appreciated the evidence in right perspective and on account thereof, the successive judgments are fit to be confirmed. It has further been submitted that the learned appellate court have taken pity over the petitioner as well as his associates during course of infliction of sentence. Hence, on this score also, there is no scope of interference. 6. The instant case has been registered on the basis of the written report furnished by PW-1 Vishwanath Bhagat alleging inter alia, that on being confidentially informed over presence of notorious criminal, Parmatma Yadav @ Bhuwar Yadav, a raiding party was constituted followed with conduction of raid, apprehension of two persons and on search a country made loaded pistol was seized while from possession of Parmatma Yadav @ Bhuwar Yadav while from possession of petitioner cartridge has been seized. The written report happens to be Ext-2 and from perusal of the same it is apparent that informant had not mentioned therein as to how many cartridges were seized from the possession of petitioner, Saroj Yadav. The written report happens to be Ext-2 and from perusal of the same it is apparent that informant had not mentioned therein as to how many cartridges were seized from the possession of petitioner, Saroj Yadav. He had simply mentioned the fact that “ Saroj Yadav ke phulpant ke dahine pocket se .315 Bore ka zinda goli baramad kiya gaya”. 7. Seizure list happens to be Ext-1. From column-5 of the seizure list, it is apparent that one country made loaded pistol along with three cartridges were seized but from whose possession that has not been disclosed therein. If the initial version of the informant PW-1 is taken on its face Ext-2, makes the case otherwise on account of inconsistency with regard to recovery of cartridges from the possession of the petitioner and that is the reason behind that from the evidence of the witnesses, such kind of contradiction persist. PW-1, the informant in para-4 of his examination-in-chief had clearly stated that from possession of Saroj one live cartridge of .315 Bore was seized. He had also admitted in para-22 of his cross-examination that he had not sealed the seized articles after search and seizure. PW-2 also in para-4 had claimed recovery of one life cartridge of .315 Bore but he has changed the name from Saroj Yadav to Suresh Yadav. He again gave a different story under para-12, 13, 14, 15 that they have caught hold both the accused on hot chase and then both were taken to the police official who were at Bandh and then in presence of villagers who were called upon by the I.O. through Chaukidar. Search was made. PW-3 is the person who had claimed to have caught hold the petitioner and under para-4 he had also narrated recovery of single cartridge from the possession of the petitioner. From para-13 again this witness supported the contention of PW-2 that both the accused were apprehended after hot chase. 8. PW-4 and 5 are seizure witnesses who have turned volte face to the prosecution. Although PW-5 had admitted his signature over seizure list. 9. PW-6 is another police official who was actively involved during course of raid and as per his examination-in-chief in para-4, it is apparent that he had shown recovery of two live cartridges from the possession of petitioner, Saroj Yadav. Although PW-5 had admitted his signature over seizure list. 9. PW-6 is another police official who was actively involved during course of raid and as per his examination-in-chief in para-4, it is apparent that he had shown recovery of two live cartridges from the possession of petitioner, Saroj Yadav. He was also entrusted with the investigation of the case and on account thereof he got the seized arms and weapon examined by the ballistic expert and having examined the witnesses as well as after obtaining sanction order, filed charge-sheet. He had also exhibited material exhibit, country made pistol and three live cartridges as is evident from para-16 and 17 of his cross-examination but surprisingly enough, it is not visible whether those material exhibits were produced in court in sealed condition nor there happens to be any connecting evidence that these arm and ammunition were seized from possession of respective accused. Neither the evidence on record nor the order-sheet dated 01/02/2012 speaks like so nor he has deposed that he had produced the seized arms and ammunition before the ballistic expert in sealed condition and also got there-from in sealed condition. When his cross-examination is gone through in para-45 he had clearly stated that he had kept seized arms and ammunition in the P.S. Malkhana before placing it before learned Chief Judicial Magistrate. In para-46, he had admitted that no number was scribed over the seized arms and ammunition. In para-47, he had further admitted that seized arms and ammunition were directly produced before the ballistic expert for its examination. In para-51, he had stated that the arms and ammunition were not in a sealed packet during course of taking out from the Malkhana. 10. PW-7 happens to be the ballistic expert who had submitted his report after examining the fire arm along with three live cartridges to be effective but he is found inconsistent with the version of PW-6 as had stated that at the time of production of the articles it was sealed which PW-6 never supported during his examination. 11. The most crucial aspect so far as against the petitioner is concerned, during course of his statement under Section 313 of the Cr.P.C. two live cartridges have been shown to be recovered from his possession over which, as stated above, there happens to be inconsistent prosecution version. 12. 11. The most crucial aspect so far as against the petitioner is concerned, during course of his statement under Section 313 of the Cr.P.C. two live cartridges have been shown to be recovered from his possession over which, as stated above, there happens to be inconsistent prosecution version. 12. Thus, after taking into account the evidence on record as referred above, it is crystal clear that so far status of the petitioner is concerned that has not properly been explained by the prosecution witnesses as well as having on account of deficiency during course of conduction of investigation wherein arms and ammunition not even cared to be sealed, it looks very unsafe to rely upon the case of the prosecution over recovery. On this score, the successive judgments of the learned court below are found to be sketchy. Further more, it appears that the evidence so available on the record, has not been considered in its right perspective. Thus, the successive judgments are set aside. 13. The revision is allowed. 14. It has been pleaded by the learned counsel for the petitioner that he happens to be under custody and on account thereof, he is directed to be let off if not wanted in any other case.