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2014 DIGILAW 1265 (PAT)

Pramod Rai v. State of Bihar

2014-12-19

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard the learned counsel for the appellant and the State. 2. The appellant has been convicted under Sections 25(1-A) of the Arms Act and has been sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.10,000/- for the keeping the un-prohibited arm. 3. The prosecution case, as alleged by the informant in his self statement that on secret information by the members of a team of Special Task Force, Bihar, that in village Rampur Khaira, one Pramod Rai has kept and concealed illegal arm and he recorded a sanha no. 298 and for verification of sanha report, the informant, along with Sanjay Kumar Gaur, Vijay Kumar Singh, armed force and Special Task Force team proceeded to village Rampur Khairi and reached at about 02.30 a.m. and surrounded the house of Pramod Rai and in presence of two independent witnesses, Ram Prasad Rai and Ram Pravesh Rai raided the house of Pramod Rai and following the norms of search and seizure, one person was found sleeping in a room and when the person got up he tried to fleeing away, was apprehended by police party and under his bed a black coloured arms with magazine and one empty magazine were seized. The arms, seized, identified as AK 56 and the magazine was found to be empty and the person disclosed his name as Pramod Rai. On demand, he could not produce any paper with regard to the fire arm and so recovered arm was seized and seizure list was duly prepared before the two independent witnesses and a copy of the seizure list was handed over to the accused with his signature and a case under Sections 25(1-A) and 26(II) of the Arms Act. 4. The police after investigation submitted the charge sheet on which the cognizance was taken, the case committed to the Court of sessions on 13.05.2013 and after commitment, the charge was framed on 01.06.2013 and trial proceeded. 5. During the trial ten witnesses were examined by the prosecution and number of documentary evidence proved, which have been marked as Exhibits 1 to 9 and the material exhibit in the case diary are material Exhibit 1, AK 56 rifle one number, material Exhibit 2 magazine one empty, material Exhibit 3, magazine one empty. 6. 5. During the trial ten witnesses were examined by the prosecution and number of documentary evidence proved, which have been marked as Exhibits 1 to 9 and the material exhibit in the case diary are material Exhibit 1, AK 56 rifle one number, material Exhibit 2 magazine one empty, material Exhibit 3, magazine one empty. 6. After taking into consideration the documentary and oral evidences, adduced in the case, the trial Court convicted the appellant, as mentioned above, taking into consideration the fact that the arm was seized from the possession of the appellant for which the witnesses, including independent witnesses, supported the prosecution case and the fact that the Sergeant Major has given a detail about the seized arms to be effective. 7. The learned counsel for the appellant, however, challenged the order of conviction and sentence recorded by the trial Court that the appellant has falsely been implicated in this case in collusion wit the independent witnesses and the police. It has been submitted that the two witnesses, who are said to be independent witnesses, have themselves accepted that they were in inimical terms with the accused, hence, reliance on those witnesses is not acceptable. It has, further, been contended that though report of the Sergeant Major, which has been marked as Exhibit 4 does not mention that the arm which was seized and examined by the Sergeant Major was a prohibited arm and in the report there is nothing to suggest which comes under the definition of prohibited arms, hence, it is contended that the conviction and sentence of the appellant for offence under Section 25(1-A) of the Arms Act is not sustainable in view of the fact that the arm, seized, has not been established to be prohibited arm. It has, further, been contended that the appellant is in jail since 17.10.2012. 8. It has, further, been contended that the appellant is in jail since 17.10.2012. 8. The learned counsel for the State, however, contends that there is specific allegation in the report that the weapon, seized, was AK 56, which is of Chinese make and, hence, it can well be presumed that the arm is a prohibited arm and, further, the prosecution has proved the case beyond reasonable doubt as the recovery has been made from the possession of the appellant and seizure list prepared and the witnesses have supported regarding the seizure of fire arm from the possession of the appellant and the said arm was prohibited arm as per evidence of Surgeant Major. 9. However, the prosecution case is that the informant along with armed force and Special Task Force team proceeded and raided the house of appellant in presence of two independent witnesses, who has been examined as P.Ws. 8, 9 and 10 and a fire arm recovered, mentioned as AK 56 and two empty magazines. P.W. 1 stated that they reached at about 02.00 to 02.30 a.m. in the night at Rampur Khaira and surrounded the house of Pramod Rai in presence of two independent witnesses, Ram Prasad Rai and Ram Pravesh Rai, they entered into the house and there a person was apprehended, who tried to flee away and under his bed a AK 56 rifle with two magazines were recovered. P.W. 2 have also supported to that effect. P.W. 6 is the informant, who said that on getting secret information, he entered sanha and proceeded for raid and recovery and searched and seized the arm. P.W. 5 has also supported the prosecution case regarding the raid. P.Ws. 7 is the investigating officer, who has stated that he recorded the statement of the witnesses and sent AK 56 rifle and magazines to Sergeant Major for it’s examination and received a report of it’s being effective. 10. P.Ws. 9 and 10 are two independent witnesses though admitted enmity with the appellant, but, supported the search and seizure, hence, the witnesses supported the prosecution case about the recovery of fire arm and two magazines. Hence, the witnesses, P.Ws 1, 2, 6, 9 and 10 have proved the recovery of fire arm. 11. P.W. 4 is the person from the Legal Cell, who has proved the sanction. P.W. 3 is the Sergeant Major. Hence, the witnesses, P.Ws 1, 2, 6, 9 and 10 have proved the recovery of fire arm. 11. P.W. 4 is the person from the Legal Cell, who has proved the sanction. P.W. 3 is the Sergeant Major. However, the Sergeant Major deposed that he get a sealed packet and opened the same. He found AK 56 rifle with two magazines, both empty, and he proved his report, which has been marked as Exhibit 4 though the Sergeant Major examined as P.W. 3 deposed that in the examination-in-chief he found the seized rifle, AK 56 as a prohibited arm and the rifle has been marked as material Exhibit 1 and two magazines have been marked as material Exhibits 2 and 2/1. 12. The report of the Sergeant Major has been proved as Exhibit 4. In the report it has been mentioned that it is lethal weapon and weapon is regular weapon found in working condition. However, there is no mention in the report that said weapon is prohibited arm. However, at this stage it is relevant to quote Section 2(i) of the Arms Act :– “prohibited arms” means– (i) firearms so designed or adapted, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or (ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing”. 13. Hence, before a fire arm could be terms as prohibited arm, it is necessary that the system applied for firing projectile should be so designed or adapted that if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger. The Sergeant Major, in his evidence, in examination-in-chief, has stated that he received a sealed packet from which AK 56 rifle with magazines were received and he examined it and he stated that he found the said AK 56 is prohibited arms, but, in his cross examination he stated that in his report he has not mentioned the word “prohibited arm”. Though he has stated that he did not fire from the said weapon. Though he has stated that he did not fire from the said weapon. He has, further, stated that on perusal of the material exhibit, it is apparent that it was found in working condition and it is made of China, but, there is no number on it has been reported that number has been pitted, but, it has not been mentioned that attempt has been made to disfigure the number and the number has been erased. Hence, the evidence of this witness in Court that it is a prohibited weapon, but, the report does not use the work ‘prohibited’, hence, the evidence of P.W. 3 that it is a prohibited weapon is contrary to his report and contradicting to Exhibit 4, which admittedly not mentioned prohibited arm. There is no report on putting pressure on the trigger, missiles continue to discharge, hence, there is nothing on record to show that it was a prohibited arm. Mere mentioning on the arm AK 56, itself, when the number shown to have been pitted it can not be established that arm is prohibited. Hence, having regard to the fact that P.W. 3 in his evidence has stated that he has not examined it by firing from the said fire arm though in his statement he has stated that it is automatic, but, there is no mention in the report that the weapon was automatic or semi automatic, however, there is distinction between automatic and prohibited arm as automatic arm and the firing done by executing person, but, for firing from the semi automatic weapon the pressure again to be applied without loading the ammunition, but, in the report there is nothing to suggest that the arm, seized, come under the definition of Section 2(i) of the Arms Act as in case of prohibited arms when pressure applied for firing projectile there continued firing of projectile takes place, no such report mentioned in Exhibit 4 nor the report mention that it is a prohibited arm. Hence, it is not proper to hold that the arm, seized, was a prohibited arm, hence, the evidence of Sergeant Major that it was a prohibited arm is not corroborated by his evidence and benefit of doubt goes to the accused to hold that the arm, seized, was not prohibited arm. 14. Hence, it is not proper to hold that the arm, seized, was a prohibited arm, hence, the evidence of Sergeant Major that it was a prohibited arm is not corroborated by his evidence and benefit of doubt goes to the accused to hold that the arm, seized, was not prohibited arm. 14. Having regard to the fact that it was a regular weapon, hence, the conviction well be sustained under Section 25(1)(a) of the Arms Act and not under Section 25(1-A) of the Arms Act, hence, the conviction can be sustainable under Section 25(1)(a) of the Arms Act. The arms, seized, without any ammunition and it has not been proved that it was a prohibited arm, hence, the conviction under Section 25(1-A) of the Arms Act is not established and the conviction under Section 25(1)(a) of the Arms Act is sustainable. 15. Having regard to the fact that appellant has already been remained in jail or about two years and two months as he is in jail since 17.10.2012, hence, the interest of justice shall meet by sentencing the appellant for the period already undergone. 16. The above noted appeal is allowed in part and the conviction and sentence of the appellant has been modified for the period already undergone. The appellant, above named, who is in custody is directed to be released forthwith, if not wanted in any other case. ?