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2014 DIGILAW 404 (PAT)

Hridya Nandan Singh Yadav v. State of Bihar

2014-04-02

DHARNIDHAR JHA

body2014
JUDGMENT : DHARNIDHAR JHA, J.:–Four appellants were put on trial in Sessions Case No. 177/92 after being charged with committing offences under Section 5 of the Explosive Substance Act and Section 21(1)(B)(A) read with Section 35 of the Arms Act and by the judgment dated 11.7.2002, appellants Hridya Nandan Singh Yadav @ Hridanand Singh Yadav, Bidya Nand Singh Yadav and Alagu Singh Yadav @ Algu Singh Yadav were found guilty of committing offences under Section 26(3) of the Arms Act as also under Section 5 of the Explosive Substance Act. As regards appellant no. 4 Sukhdeo Muni @ Sukhdeo Singh Yadav @ Doctor Singh Yadav, he was held guilty of committing offence under Section 26(3) read with Section 35 of the Arms Act. It appears that after hearing the appellants on sentence, they were directed to suffer rigorous imprisonment for five years. The appellants have preferred the present Appeal to question the correctness of the findings of guilt as recorded against each of them by the court below as also the appropriateness of the sentence passed against them. 2. PW 9 S.I. Mukund Singh was posted in Udwantnagar Police Station as Officer-in-charge on 5.5.1991. He went to Village – Malthar for investigating Udwantnagar P.S. Case no. 62/91 under Section 307, etc. of the Indian Penal Code and Section 27 of the Arms Act with Probationer S.Is’. Amarendra Narain Kumar (PW 8), I.D. Singh, ASI Mathura Ram of BMP along with Havildar Surendra Rai and Constables Sidheshwar Prasad, Nathuni Singh, Nand Kumar Singh, Surendra Prasad, Paras Nath Upadhyaya and Amir Hussain Ahmad. During investigation of the above noted case, he happened to have an information that some accused persons of the case had taken shelter in the house of appellant no. 4 Sukhdeo Muni @ Sudhdeo Singh Yadav @ Doctor Singh Yadav and they were armed with gun and other dangerous weapons. He, along with accompanying officers and constables, came to the house of appellant no. 4 and put a seize around that house. He, thereafter, taking with him PW 6 Shital Singh and PW 7 Basawan Singh, entered into the house of appellant no. 4 and started search of it, during which course, appellant no. 4 was not found present inside his house. However, from the house, situated on the western side of the premises and which was facing East, the three appellants other than the appellant no. 4 and started search of it, during which course, appellant no. 4 was not found present inside his house. However, from the house, situated on the western side of the premises and which was facing East, the three appellants other than the appellant no. 4 were found concealing themselves behind a Kothi (earthen granary). Appellant Hridya Nandan Singh Yadav @ Hridanand Singh was said to be in possession of a DBBL regular gun bearing WM 81000463 and was also having five live cartridges along with two empty cartridges in his pocket. The cartridges and the gun were seized as per the description given in the Written Report (Ext. 2) as also in the Seizure Memo (Ext. 5) prepared in that behalf. On further search of the house, a rifle and eight cartridges of description as per the written report and seizure memo were also found along with three hand grenades which were also seized. 3. PW 9, the informant of the case, wrote down his self-statement and drew up the First Information Report and handed over the investigation to PW 8, Probationer SI Amarendra Narayan Kumar. 4. The defence of the appellants was that nothing was recovered from the house of the appellant no. 4 except the DBBL gun and, that too had been recovered from DW 1 Dipnarain Singh, one of the relatives of appellant no. 1 Hridya Nandan Singh Yadav @ Hridanand Singh Yadav, who had come, after hearing about the fight between the two factions of the village, to enquire about the welfare of his relative, appellant no. 1. It was also pleaded by the appellants that the said Dipnarain Singh pointed out the above facts to PW 9, but he did not accept the plea and seized the weapon illegally. 5. Nine witnesses were examined in support of the prosecution charges and it appears that the two seizure list witnesses PWs 6 & 7 did not support the fact that a search was made in their presence and anything had been recovered during that search. However, PW 6 Shital Singh admitted that the signature which appeared on document Ext. 5 was that of his and that had been obtained by the police on a plain paper. Thus, what appears from the evidence of PW 6 was that he had admitted signing the seizure memo. However, PW 6 Shital Singh admitted that the signature which appeared on document Ext. 5 was that of his and that had been obtained by the police on a plain paper. Thus, what appears from the evidence of PW 6 was that he had admitted signing the seizure memo. PW 7 Basawan Singh, the other seizure witness, did not state any fact and simply stated that nothing had been recovered in his presence as no search proceedings of any house had been carried out in his presence. As regards other witnesses, PW 1 Surendra Prasad, PW 2 Sidheshwar Prasad, PW 3 Amir Hussain Ahmad, PW 4 Nathuni Singh, who were the members of the raiding party with PW 5 Havildar Surendra Rai and PW 8 Probationer S.I. Amarendra Narain Kumar, PW 1 might have stated that he was not inside the house and he was standing outside it and further that he did not know as to from where the three accused persons had been arrested, but what appears from his evidence is that a raiding party was formed and the house of appellant no. 4 Sukhdeo Muni @ Sukhdeo Singh Yadav @ Doctor Singh Yadav had been searched. This inference appears arising also from the evidence of other witnesses, like, PW 2 Sidheshwar Prasad, PW 3 Amir Hussain Ahmad, PW 4 Nathuni Singh and, lastly, of the two witnesses PWs 8 & 9. As regards the question as to from where the three appellants, that is, appellant nos. 1, 2 & 3, were arrested or indeed found, the evidence appears completely unsatisfactory and very weak. I have already pointed out that PW 1 was stating that he did not know as to from where the three appellants had been arrested whereas PW 2 stated that he also did not enter inside the house and he was on duty outside it, but he stated that the three accused had been arrested and brought out from the house. PW 3 also stated that he did not enter the house and there was no recovery made either of a gun or of the hand grenade or any ammunition in his presence. PW 4 also appeared going with the other witnesses and stating that he had not gone inside the house and there was no recovery of any other article either arms or ammunitions or explosive substances in his presence. PW 4 also appeared going with the other witnesses and stating that he had not gone inside the house and there was no recovery of any other article either arms or ammunitions or explosive substances in his presence. PW 5 was also claiming that he did not enter into the house; rather he stated that he was standing in the backside of the house. Thus, what appears from the evidence of these witnesses, i.e., PWs 1 to 5, is that it will be very difficult for anyone to find as to from where the three appellants, that is, appellants no. 1, 2 & 3 had been brought out after being arrested or, in other words, were indeed the three had been arrested or were found in possession of any arms or ammunition. Only one witness who could be giving a semblance of evidence as regards the complicity of any particular appellant was PW 4 Constable Nathuni Singh, who had stated that the person, who was sporting a moustache, was armed with a gun and he went near the police officer, but again his evidence raised an inference in support of the prosecution story that he had been arrested inside the house and a DBBL gun had been recovered from him. Thus, the whole evidence, except that of PWs 8 & 9, was as indefinite as to lead to no inference, either on search of the house or on arrest of the accused persons and again on recovery of any incriminating arms and ammunition or explosive substance. 6. So far as the evidence of two witnesses PWs 8 & 9 is concerned, they supported the prosecution story in all its details. PW 9 was the informant of the case and he had drawn up the written report as also had conducted the search of the house and after recovering of the arms and ammunitions as also the hand grenades, had prepared the seizure memo. He has testified to the fact that the search was carried out on information during the investigation of Udwantnagar P.S. Case No. 62/91 that some criminals had taken shelter in the house of appellant no. 4 and they were also in possession of some dangerous weapons. He has testified to the fact that the search was carried out on information during the investigation of Udwantnagar P.S. Case No. 62/91 that some criminals had taken shelter in the house of appellant no. 4 and they were also in possession of some dangerous weapons. Likewise, PW 8 Amarendra Narain, also one of the members of the raiding party, had testified to the above facts as regards the search of the house, arrest of the three appellants and recovery of the arms and ammunitions and the hand grenades, but what was submitted by the learned Sr. Counsel was that the two witnesses were very much the part at some stages of the investigation, like, the one which had preceded the drawing up of the FIR and the other who had taken over the investigation after drawing up of the document, the FIR. Submission was that the evidence of PW 9 indicated in para 11 that the Investigating Officer PW 8 was one of the members of the raiding party and that there were officers, other than PWs 8 & 9 at the Police Station, who appeared equally competent to conduct the investigation. 7. The law is very trite that the cases, which are instituted on the reports of police officers, should not be investigated into by those officers who had either been the informant of the case or had been one of the members of the raiding party or the police party which had initially gone on the search of any incriminating article or of a premises. The reason behind this legal proposition is that such officers are generally enthusiastic about the full-proof creation of material in the case diary and subsequent production of those materials before the Court through evidence so as to ensuring the conviction of the accused. Thus, what appears from that proposition of law is that in spite of being public servants as police officers, who are supposed to act with fairness and in the interest of justice, there is always an element of interest and bias in them so as to creating the evidence and deposing in the Court in support of the charges. Thus, what appears from that proposition of law is that in spite of being public servants as police officers, who are supposed to act with fairness and in the interest of justice, there is always an element of interest and bias in them so as to creating the evidence and deposing in the Court in support of the charges. In view of the admitted position which appears from para 9 of the evidence of PW 9 that other police officers were also available who could have investigated into the case, the Court does not find any reason as to why PW 8 should have been entrusted with the investigation. 8. The other flaw which appears in the prosecution case is that there might have been some recovery of hand grenade, but the fact was that neither of the witnesses, like, PWs 8 & 9, were ballistic experts. PW 9 had himself admitted that he was not such an expert as appears in para 14 of the evidence of PW 8. PW 8 has also admitted this fact in his evidence in para 18. Supposition is that the recovered hand grenades ought to have been sent to an expert for analysis of their contents and that appears to have been done from the evidence of PW 9, who was again cross-examined on recall in para 17 of his deposition sheet. PW 9 admitted that the hand grenades were not sealed in a cover because they had been sent for necessary test by an expert. Then the ordinary requirement was that the report which was prepared by an expert after analyzing the contents of the hand grenades ought to have been produced in Court to satisfy that they were really explosive substance as per the definition of that term in Section 2 of the Explosive Substances Act. That evidence appears lacking from the record and, as such, the fact that any explosive substance was recovered from either the house of PW 4 or from the possession of any of the appellants goes uncorroborated. In fact, the evidence is so scant or lacking that there is no evidence coming from most of the witnesses that any hand grenade was recovered during the search of the house. It were only PWs 8 & 9 who were testifying to the factum of recovering a hand grenade from the house. In fact, the evidence is so scant or lacking that there is no evidence coming from most of the witnesses that any hand grenade was recovered during the search of the house. It were only PWs 8 & 9 who were testifying to the factum of recovering a hand grenade from the house. Thus, what I find is that the charge under Section 5 of the Explosive Substances Act was not proved to the hilt. The other aspect upon which the charge under Section 5 of the Explosive Substances Act appears failing is that the trial of the appellants for that charge was itself vitiated on account of the fact that the consent of the District Magistrate to prosecute the appellants for the charge under Section 5 of the Explosive Substances Act, which is necessary to be obtained under Section 7 of the said Act, was virtually no consent. The document has been marked ‘Ext. 4’ and is available to the Court on the list of the exhibited documents. On a bare perusal of the document, what appears is that it is a document which is cyclostyled with vacant spaces left here and there to fill in the requisite informations as the number of the letter with date of the Superintendent of Police, Bhojpur and even the name of the District Magistrate of that district. It is a cyclostyled form bearing no details of this particular case as to how the search was made, where the explosive substance was found and recovered from and what appears is that the words ‘Prathmik Sakshya’ (primary evidence), which was the basis for drawing the satisfaction of the District Magistrate, were already existing in the cyclostyled typed form giving a clear impression that it was a mere formality and not showing the application of mind which is required to be done in such cases. One may argue that giving the consent for prosecuting an accused for committing any offence under the Explosive Substances Act might not be a judicial act, but even if assuming that it could be an administrative function of the District Magistrate, the act has its judicial implications which ultimately has its own bearing on the fundamental liberty of a citizen and his right to be prosecuted after observing due process of law. If the document showed lack of application of mind, then the Court cannot hesitate in holding that it was merely a formality without due application of mind as is required in such cases to be made. The Court is of the opinion that there being no consent virtually, the very prosecution of the appellants for an offence under Section 5 of the Explosive Substances Act was not permissible and, as such, the judgment stood vitiated on that score also. 9. Coming to the question of appellants no. 1, 2 & 3 being convicted under Section 26(3) of the Arms Act and appellant no. 4 being convicted under Section 26(3) read with Section 35 of the Arms Act, what I want to note is that while I was perusing the impugned judgment and the record of the case, I could gather from such perusal that the learned judge, who had framed the charges, and the learned judge, who had delivered the judgment, were acting quite indifferently without even caring to have a bare grasp of the fact so as to applying the law - firstly, for framing the charges and then, for finally recording a finding of guilt against the accused persons. This I say because the charge, as appears from the judgment as also from the records, was framed by the 9th Addl. Sessions Judge, Bhojpur on 21.8.1995 under Section 21(1)(B)(A) of the Arms Act. If one could simply look to that provision of the Arms Act, one could find that Section 21 was not a penal provision, rather it was defining a particular offence as appears from the very provision of conveying arms for repairing or testing it or selling it in contravention of some of the provisions of the Arms Act. If Section 21(1)(B)(A) of the Arms Act was not a penal provision then the charge could not have been framed firstly under that provision of law and then there should not be any question of the appellants being convicted under Section 26(3) of the Arms Act by virtue of Section 35 of the Act. If Section 21(1)(B)(A) of the Arms Act was not a penal provision then the charge could not have been framed firstly under that provision of law and then there should not be any question of the appellants being convicted under Section 26(3) of the Arms Act by virtue of Section 35 of the Act. The very conviction of the appellants under Section 26(3) of the Arms Act, either independently or by virtue of Section 35 of the Arms Act, appears completely unsustainable in law inasmuch as the very part of Section 26 recites that an act to sell or attempt to sell any arms or ammunitions during the search having been made under Section 22 of the Arms Act was made punishable by that part of Section 26 of the Act. On perusal of Section 22 of the Arms Act, one could simply find that it relates to recovery of arms or ammunitions during a search made by a Magistrate if he had any reason to believe that any person residing within the local limits of his jurisdiction had in his possession any arms or ammunition for any unlawful purpose, or that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety. In such a situation and for drawing such satisfaction, the Magistrate is required to record the reasons for his belief and then, has to cause a search made of the house or premises occupied by such person or persons in which the Magistrate has reasons to believe that such arms or ammunition are or is to be found and then have such arms or ammunition, seized and then retained them in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of the Arms Act or any other law, for the time being in force, to have the same in his possession. It may further to be found out from sub-section (2) of Section 22 of the Arms Act, that every search and seizure has to be made under the supervision of the Magistrate. It may further to be found out from sub-section (2) of Section 22 of the Arms Act, that every search and seizure has to be made under the supervision of the Magistrate. Here, in the present case, the facts did not attract of the provisions of Section 22 of the Arms Act and, as such, the search and seizure which was allegedly made from the appellants, either by PW 8 or PW 9, could not be said to be a search and seizure made under Section 22 of the Arms Act. Thus, the search or the recovery or the seizure of the arms or ammunition which was allegedly made by PWs 8 & 9 from the appellants no. 1, 2 & 3 would not attract a charge under Section 26(3) of the Arms Act. The very provisions of Sections 22 and 26(3) of the Arms Act itself indicate that the appellants had been convicted and sentenced for an offence which was never constituted on the facts of the case. 10. These were some issues of facts which should never have been missed by an officer in the rank of Additional District and Sessions Judge or an officer who was presiding over the Fast Track Court. But, unfortunately these defects could be detected only after 12 years of rendering the judgment and, that too, by this Court. 11. On the discussion of the material evidence and law, what I find is that the whole judgment stands vitiated due to many reasons and the appellants could not be said to have committed any of the offences in the light of the evidence available on record and in light of the provisions under which they have been found guilty of. The impugned judgment of conviction and the order of sentence are not sustainable in law and the same are hereby set aside by allowing the appeal. The appellants are on bail. They shall stand discharged from their respective bonds.