Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 808 (PAT)

Raghuni Mukhia v. State Of Bihar

2013-07-15

ADITYA KUMAR TRIVEDI

body2013
ORDER Heard learned counsel for the petitioner as well as learned Additional P.P. for the State. 2. Petitioner is aggrieved by the judgment dated 30.11.2010 passed by Sri Girish Mishra, Judicial Magistrate, 1st Class, West Champaran at Bettiah in G.R. Case No. 2877/2005 convicting the petitioner for an offence punishable under Section 25 (1-B) a and 26 (1) of the Arms Act and further directed to undergo R.I. for a period of two years as well as also slapped with a fine of Rs. 2000/- under both counts in default thereof, to undergo S.I. for one month directing the sentences to run concurrently as well as judgment dated 23.03.2013 passed by Ad- hoc Additional District & Sessions Judge, West Champaran at Bettiah in Cr.Appeal No. 95/2010 dismissing the appeal. 3. PW-1, Manvendra Kumar, the then Officer Incharge of Jogapatti P.S., recorded his own Fard-e-beyan on 02.11.2005 (over writing at every place where dates have been scribed) disclosing therein that on confidential information, he conducted raid at the house of petitioner after constituting a raiding party and it has been alleged that a country made gun was recovered therefrom for which Jogapatti P.S. Case No. 217 of 2005 was registered followed with investigation as well as submission of charge-sheet leading to trial ultimately concluding in conviction of the petitioner/accused having concurred at the stage of appellate court, hence this revision. 4. It has been submitted on behalf of the petitioner that he has fallen victim of false implication and that is the reason behind that at all the relevant places including seizure list, there is over-writing so far date of conduction of search and seizure is concerned. This unexplained part of prosecution has caused serious prejudice not only to the petitioner but also with regard to genuineness of the prosecution version. It has further been submitted that none of the seizure list witnesses has been examined in this case nor is there explanation on the score of prosecution. It has also been submitted that PWs-5, 6 and 7 have not identified the petitioner during course of trial. PW-4 is formal witness who had simply produced the so alleged gun. 5. It has further been submitted that none of the seizure list witnesses has been examined in this case nor is there explanation on the score of prosecution. It has also been submitted that PWs-5, 6 and 7 have not identified the petitioner during course of trial. PW-4 is formal witness who had simply produced the so alleged gun. 5. Now coming to the evidence of remaining witnesses, it has been submitted on behalf of the petitioner that PW-1 is the informant himself, PW-2 is the Ballistic Expert, PW-3 is the I.O. and from the evidence of these three PWs, it is apparent that arms so recovered was never wrapped or sealed at the time of seizure as well as during course of investigation. It has also been submitted that PW-1 had himself admitted that such kind of arms are kept in Malkhana and on account thereof, the authenticity of the seizure of arm from the house of the petitioner became doubtful. 6. It has further been submitted that there is illegality during course of framing of charge against the petitioner because of the fact that neither charge under Section 25 (1-B) a nor 26 of the Arms Act has been framed with the aid of Section 35 of the Arms Act rather a separate charge under Section 35 of the Arms Act has been framed which is non permissible in the eyes of law. In likewise manner, it has also been submitted that once charge has been framed attracting Section 35 of the Arm’s Act then under such situation the conviction of the petitioner under Section 25 (1-B) a, 26(1) of the Arms Act simplicitor is not at all permissible. Hence, it has been submitted that the successive judgments rendered by the learned lower courts are cryptic and speak of non-application of mind. 7. On the other hand, learned APP submitted that evidence on its face had already been properly scrutinized by the successive courts and on account thereof, there is no opportunity left for the revisional court to scrutinize the evidence afresh. It has also been submitted that whatever anomaly is evident, that is mere a slip of pen and on account thereof, no prejudice is found to be caused to the petitioner nor the petitioner has been able to flash as to what kind of prejudice, he has sustained. Hence, successive judgments are fit to be confirmed. 8. It has also been submitted that whatever anomaly is evident, that is mere a slip of pen and on account thereof, no prejudice is found to be caused to the petitioner nor the petitioner has been able to flash as to what kind of prejudice, he has sustained. Hence, successive judgments are fit to be confirmed. 8. After going through the seizure list, self statement of PW-1, it is evident that some sort of confusion was persisting at the time of so alleged recovery. From the formal First Information Report (Ext-3), it is apparent that date of occurrence has been shown to be on 02.11.2005 in between 4:00 a.m. to 10:00 p.m. while from the self statement (Ext-2), it is apparent that on getting information on 01.11.2005 at 11:00 p.m., the raid was conducted subsequently, although, no time has been disclosed. When the seizure list (Ext-1) has been gone through, it relates to Jogpatti P.S. Station Diary Entry No. 19 dated 01.11.2005 and the date of seizure has been shown on 02.11.2005 (all having over writing) at 7:30 a.m. bearing signature of PW-1 dated 02.11.2005 (over writing). When the aforesaid them is taken together with the other relevant documents, it appears that the charge has been framed against the petitioner for an occurrence dated 02.11.2005 while the statement recorded under Section 313 of the Cr.P.C. contains 01.11.2005 at about 11:00 p.m.. Therefore, there is inconsistency on this very score and in the background of the over-writing which has not been properly explained by the prosecution at every place where date is incorporated, creates the situation worsen. 9. If the aforesaid infirmities are taken together with the evidence of PW-3, the Investigation Officer, it is apparent that though he had admitted that investigation of case was handed over to him by the O/C (PW-1) but he had not spoken regarding handing over of seized single barrel gun, the alleged recovered article from the house of petitioner and having absence of the aforesaid evidence in the deposition of PW-1 who had also failed to depose that during entrustment of investigation to PW-3, he had handed over seized arm to him, again a mysterious circumstance has cropped up putting a suspicion over the version of prosecution regarding recovery and seizure of the arm. 10. 10. It is also evident from the evidence of PW-1, (para-15) that he had not put any identification mark over the seized arm and further admitting therein that so many arms of similar nature are kept in Malkhana, as well as in para-18 admitting that neither the seized arm was wrapped or sealed, again the situation has become out of grip of prosecution on that very score. The aforesaid theme is also found supported with the evidence of PW-2 (para-4), PW-3 (para-14). 11. From the judgments of the successive courts, it is apparent that the aforesaid theme have completely been overlooked which make the whole prosecution case doubtful. Consequent thereupon, the petition is allowed. 12. Thus, Judgments of successive courts are set aside. 13. Since petitioner is in custody, he is directed to be released forthwith, if not wanted in any other case.