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2014 DIGILAW 955 (PAT)

Munna Rai v. State of Bihar

2014-09-05

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the Additional Public Prosecutor. 2. The appellants have been convicted under Sections 25(1-A) (1-B)A, 26 and 35 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.50,000/- for the offence under Section 25(1-A) of the Arms Act and in default of payment of fine, simple imprisonment for three months and they have further been sentenced rigorous imprisonment for three years and fine of Rs.25,000/- for the offence under Section 25(1-B)A of the Arms Act and in default of payment of fine simple imprisonment for one month and 15 days and further sentence to undergo rigorous imprisonment for three years under Section 26 of the Arms Act whereas no sentence was awarded under Section 35 of the Arms Act. 3. The prosecution case, as alleged, is that the informant (P.W. 10) received an information on 20.01.2012 at 6:00 A.M. from the Officer-In-Charge, Minapur Police Station (P.W. 1) that the criminals have attacked the house of Ashok Rai with intention to kill him but at the intervention of the villagers, the criminals fled away but two persons have been kept in confinement by the villagers. The Officer-in-Charge, Minapur, Police Station (P.W. 1) reached the place of occurrence, apprehended them. One of the criminals disclosed his name as Vijay Paswan. From his possession a country made loaded pistol with one live cartridge of .315 was recovered. The second person disclosed his name as Mahesh Patel. From his possession two live cartridges of S L R along with cartridge of 12 bore were recovered. Two mobiles were also recovered from the apprehended persons. On inquiry, the apprehended accused disclosed that they did the offence on the direction of Munchun Sah @ Roshan Jee, who is the active member of the MCC. They also stated that Munchun Sah @ Roshan Jee is concealing himself at the Bamboo clumps. The police party then raided the Bamboo clumps and caught hold of Munchun Sah and from his possession 9 MM pistol along with magazine loaded with a cartridge, mobile phone, some papers and a map was recovered. They also stated that Munchun Sah @ Roshan Jee is concealing himself at the Bamboo clumps. The police party then raided the Bamboo clumps and caught hold of Munchun Sah and from his possession 9 MM pistol along with magazine loaded with a cartridge, mobile phone, some papers and a map was recovered. The map indicated that the extremists have planned to kill Ajodhi Rai and in execution of the plan the member of said Milisia extremist group under the leadership of Prabhu Sahani are staying at Subaigarh Point and the plan is being monitored by Zonal Commander Suhag Paswan. The information was passed on to the Senior Superintendent of Police, Muzaffarpur and on his direction a raiding party was constituted under the informant Sibli Numani (Nomani) (P.W. 10). Intimation to that effect was given to Bambam Chaudhary, S.D.P.O. Parkidayal (P.W. 2) with request to join the raid. The raid was conducted, the entire area was surrounded, the extremists were forced to surrender. The extremists started fleeing away, then the raiding party caught hold of the appellants. From the possession of appellant Prabhu Sahani A.K. 56 rifle loaded with a magazine with 15 round live cartridges were recovered. On the body of A. K. 56 rifle, it was mentioned as A. K. 56 - 1D16104279 with a folding butt. On the back of Prabhu Sahani a packet like bindollia containing 220 live cartridges of A.K. 56 were recovered and a mobile phone was also recovered. From the possession of one Munna Rai a country made pistol with long barrel (PG Rifle) loaded with one cartridge with butt having a length of four finger and from right pocket four round SLR 7.62 MM live cartridges, one 9 MM pistol loaded with Magazine and a cartridge with iron butt length of which is about six fingers and a mobile were recovered. The third person disclosed his name as Md. Isarafil, from whose possession a regular .38 revolver having written on its barrel STURN RUGER & Co. INC. SOUTH PORT, Conn. U.S.A., on the other side of the barrel it was mentioned as CAL .380 RIM, on its body it was mentioned as RUGER SERVICE – SLX, 6 round revolver loaded with six live cartridges of 0.38 was found. Isarafil, from whose possession a regular .38 revolver having written on its barrel STURN RUGER & Co. INC. SOUTH PORT, Conn. U.S.A., on the other side of the barrel it was mentioned as CAL .380 RIM, on its body it was mentioned as RUGER SERVICE – SLX, 6 round revolver loaded with six live cartridges of 0.38 was found. From the right pocket 13 round live cartridges of 0.38 were recovered and from the waist 9 MM pistol fitted with magazine with iron and plastic butt was recovered. The other articles were also recovered which were thrown on the ground. The articles were seized and seizure list was prepared as Ext.1. On the self statement of the informant, Dr. Md. Shibali Nomani, First Information Report was lodged for the offence under Sections 25(1-A), (1-B)A, 26 and 35 of the Arms Act. On the First Information Report the investigation proceeded. The seized articles were sent to the Sergeant Major (P. W. 7). He received the seized articles in sealed cover and examined the weapons. The weapons were found to be effective. The Sergeant Major after examining the seized articles returned the same with his report (Ext. 3) in sealed cover. The signature of the District Magistrate on the sanction report is marked as Ext. 5 and the sanction order is marked as Ext. 6. The police after investigation submitted charge-sheet. After submission of the charge-sheet cognizance was taken and the case was committed to the Court of Sessions and trial proceeded. 4. During the trial, nine witnesses were examined by the prosecution who are P.W. 1 Jitendra Prasad, P.W. 2 Bambam Choudhary, P.W. 3 Vinay Kumar, Officer-in-Charge, Pakari Deyal, P.W. 4 Rajmani, one of the members of raiding party, P. W. 5 Dhananjay Kumar, P. W. 6 Devendra Kumar Pandey, P. W. 7 Arun Kumar Singh, P. W. 8 Md. Shibali Nomani, P.W. 9 Subodh Kumar, who is the Investigating Officer. The documentary evidence adduced are Ext. 1 seizure list, Ext. 2 series is the confession of the accused persons and Ext. 3, the report of the Sergeant Major. 5. No witness has been adduced on behalf of the defence. Shibali Nomani, P.W. 9 Subodh Kumar, who is the Investigating Officer. The documentary evidence adduced are Ext. 1 seizure list, Ext. 2 series is the confession of the accused persons and Ext. 3, the report of the Sergeant Major. 5. No witness has been adduced on behalf of the defence. The trial court, taking into consideration the evidence adduced by the prosecution, held that the prosecution has proved the manner of occurrence, place of occurrence, seizure of the articles on the spot, convicted the appellants for the offence under Sections 25(1-A) (1-B)A, 26 and 35 of the Arms Act and sentenced as mentioned above. 6. Learned counsel for the appellants, however, challenged the judgment of conviction and order of sentence on the ground that the two independent witnesses, before whom the seizure was made, have not been examined. It has further been contended that the Investigating Officer is the member of the raiding party and hence, the investigation is tainted. It has also been contended that there is contradiction and variance in the evidence of the witnesses on the manner of arrest of the appellants as P.W. 1 has stated that he caught hold of the appellants whereas P.W. 2 has stated that he caught the appellants while the accused was fleeing away. P.W. 3 has stated that on the command of the raiding party the accused persons surrendered. Hence, the evidence of the witnesses on the manner of arrest is at variance and there is contradiction in their evidence. It is further contended that all the witnesses have not stated about the search and seizure of each and every articles rather some of the witnesses in their evidence have stated about the recovery of some articles and some have given evidence about recovery of only few items which were recovered and all the witnesses have not mentioned all the items which have been seized and have not stated in their evidence regarding recovery of each article recovered from them. Hence, there is contradiction in the statement of the witnesses and there is variance in their evidence hence, conviction on the basis of the contradictory statement is not sustainable in the eye of law. 7. Hence, there is contradiction in the statement of the witnesses and there is variance in their evidence hence, conviction on the basis of the contradictory statement is not sustainable in the eye of law. 7. From the First Information Report, it is apparent that on information, a team was constituted, raid was conducted by the raiding party and from possession of appellant Prabhu Sahani A.K. 56 rifle with number mentioned on it and 220 cartridges of A.K. 56 were recovered and from possession of Munna Rai a country made pistol with long barrel (PG rifle) loaded with one cartridge with specific mention of the length of butt and barrel and one 9 MM pistol loaded were recovered and from possession of Md. Isarafil a regular 0.38 revolver having written on its barrel STURN RUGER & Co. INC. SOUTH PORT, Conn. U.S.A. and six round revolver loaded with six live cartridges of 0.38 was recovered. The seizure list prepared with specific mention of the articles recovered with description found on the arms. 8. P.W. 1, the informant has specifically stated in his evidence that the appellants were apprehended and on raid some extremists managed to escape but three persons were apprehended and they disclosed their name and from the possession of Prabhu Sahani A.K. 56 rifle with number mentioned on it and 220 cartridges of A.K. 56 were recovered and from possession of Munna Rai a country made pistol with long barrel (PG rifle) loaded with one cartridge with specific mention of the length of butt and barrel and one 9 MM pistol loaded were recovered and from possession of Md. Isarafil a regular 0.38 revolver having written on its barrel STURN RUGER & Co. INC. SOUTH PORT, Conn. U.S.A. and six round revolver loaded with six live cartridges of 0.38 was recovered and the seizure list prepared which has been marked Ext. 1. The materials seized were also produced in Court which have been marked as material Ext. I to XIII. 9. P. Ws. 2, 3, 4 and 5 are members of raiding party who supported the prosecution case about arranging raid and on raid the three appellants were apprehended with fire arms and the fire arms were seized from their possession and the seizure list prepared. 10. P. W. 7 is the Sergeant Major. I to XIII. 9. P. Ws. 2, 3, 4 and 5 are members of raiding party who supported the prosecution case about arranging raid and on raid the three appellants were apprehended with fire arms and the fire arms were seized from their possession and the seizure list prepared. 10. P. W. 7 is the Sergeant Major. He has stated that he received the material exhibit of the case in sealed cover and he gave his report and proved the recovered A.K. 56 rifle to be a prohibited arm and it was effective. He has also proved that the cartridges recovered were found to be effective which were also prohibited arm. He has also stated that he has examined the pistol. He has stated that he received the arms in sealed cover and examined the arms and found the arms effective and was prohibited arms and after examining the arms sent the report in sealed cover. He proved his report marked as Ext. 3. The evidence and report specifically mentioned that the description of the arms tally with the arms recovered RUGER .38 service revolver is effective and a prohibited arm, the 9 MM pistol and 7.62 cartridge and other arms and ammunitions with specific description. He received the articles under sealed cover of the officer-in-charge and has proved the article which corresponds the material exhibit, the fire-arm seized. 11. P. W. 9 the Investigating Officer of this case. He has proved the prosecution sanction and has stated that he received the prosecution sanction which bears the signature of the District Magistrate and the seal of the District Magistrate. The said sanction for prosecution has marked as Ext. 5 without objection. Hence, the prosecution is able to establish that the appellants were apprehended and from their possession articles were seized and were sent in sealed cover and the same was found to be effective and prohibited arms and has proved the prosecution sanction. 12. However, point raised by the learned counsel for the appellants that the informant is the member of the raiding party and even being the member of a raiding party and seizure of the articles he has conducted the investigation and hence the investigation is tainted. 12. However, point raised by the learned counsel for the appellants that the informant is the member of the raiding party and even being the member of a raiding party and seizure of the articles he has conducted the investigation and hence the investigation is tainted. It is true that P.W. 9 the Investigating Officer was the member of the raiding party but there is no law which prohibits that the member of the prosecution party cannot investigate though in cases where there may be element of bias, it is deprecated that the person who is the member of the raiding party may not be investigating officer. However, merely because the Investigating Officer has been the member of the raiding party is no ground to reject the prosecution case out right on this ground alone, to record acquittal or set aside the judgment of conviction. The only precaution required is to test the evidence with great care and caution and unless prejudice has been shown to have been caused to the appellants the prosecution case cannot be rejected on these grounds alone. However, going through the evidence and investigation, there is nothing to suggest nor even pointed out or indicated by the learned counsel for the appellants to show the appellants have been prejudiced by the investigation by Investigating Officer who was member of the raiding party. 13. It has further been pointed out that there is contradiction in the evidence of the witnesses regarding the manner of the arrest. However, it has been submitted that P. W. 1 in his evidence has stated that police force challenged that if they will flee then they will be killed but some miscreants fled away and P.W. 1 stated that three persons apprehended by chasing. P. W. 2 has stated that all the three persons returned back and surrendered. P.W. 3 has stated that extremist on seeing the police force started fleeing away and were chased and caught. P. W. 8 has stated that the S.D.P.O., Pakaridayal at the top of his voice asked them to surrender and then they surrendered out of fear and caught by police. However, the evidence that the police surrounded then they started fleeing away and on command to surrender they surrendered. P. W. 8 has stated that the S.D.P.O., Pakaridayal at the top of his voice asked them to surrender and then they surrendered out of fear and caught by police. However, the evidence that the police surrounded then they started fleeing away and on command to surrender they surrendered. However, the fact remains in the evidence of all the witnesses that the police party surrounded the accused and the accused persons started fleeing away and thereafter they were challenged to surrender as they have been surrounded by the police party and then they were caught or surrender is immaterial as a way of expression of different person in different manner. It is pertinent to mention here that police raided and surrendered then the accused persons started fleeing away, in the meantime, the probability that the police force may have also chased them and on command when extremist were about to surrender having caught hold by the police party, it is immaterial either they were surrendered or caught when the police party surrounded and started fleeing away, in the meantime, there was several members in the party, some may have challenged the appellants to surrender and some may have run to caught hold and, in the meantime, the accused persons may have decided to surrender and then caught hold by the police party. The contradiction pointed out in the manner of arrest cannot be treated as contradiction as it does not go to the root of the prosecution to reject the prosecution case on this score. 14. The contention is that there is contradiction regarding the recovery of arms as all the witnesses have not stated specifically about the recovery of each and every item of the articles recovered from their possession, however, the different witnesses have different capacity to remember and retain and express in different way and have different mental status, some may have greater memory and even more intelligence and power of observation may also differ and hence, not disclosing the name of all the articles is not a contradiction but can only be omission and this does not come under contradiction. The contradiction means that the two things which could not co-exist together. The contradiction means that the two things which could not co-exist together. However, taking into consideration the evidence of the witnesses that some said about seizure of some articles which were seized, some said about other item of article seized in their evidence, it does not mean that there is contradiction as the two statements can consist together. The non-mentioning of all the items seized may be a test of his memory but cannot be said to be a contradiction to disbelieve the search and seizure. However, going through their evidence, it is apparent that they have supported the prosecution case in material particular and merely because some witness left over in these statements the mentioning of some articles seized is no ground to reject their evidence. 15. The criticism is that the articles seized have not been specifically marked by P.W. 1 at the time of seizure. However, from the seizure list itself it is apparent that in seizure list as well as in the written report itself there is specific mention of the articles seized and there is specific mention that the article seized was A.K. 47 with number engraved on it specifically mentioned in contemporaneous document the seizure list and written report and hence, there is specific mark on the A.K. 47 which has been mentioned not only on the written report but also in the seizure list and even in the report of the expert, hence, the articles seized were well identifiable. The other seized article PG rifle and the articles recovered from the possession of Md. Isarafil specifically mentions about the .38 revolver with specific mention of STURN RUGER & Co. INS. SOUTH PORT. Conn. The other seized article PG rifle and the articles recovered from the possession of Md. Isarafil specifically mentions about the .38 revolver with specific mention of STURN RUGER & Co. INS. SOUTH PORT. Conn. USA engraved having been mentioned which is again specifically identifiable item and hence, non-marking has no consequence, specially when from the evidence of P.W. 7 the Sergeant Major who has examined the seized articles has specifically mentioned that he received the articles in sealed cover with seal of officer-in-charge and after examining those articles has sent the articles in sealed cover which was produced before the court and the report sent by him specifically mentioned the items identifiable and hence, when the articles seized having been identifiable with the mark on its and sent to the Sergeant Major for their examination and the Sergeant Major has been examined, the same again sent back the articles in sealed cover and the articles produced in court, hence, no prejudice has been caused regarding the articles seized and produced before court after due examination by Sergeant Major who has found the fire arms as prohibited and effective which was examined and produced before the court. 16. Hence, taking into consideration the entire facts and circumstances that the articles seized were apparently identifiable having been sent in sealed cover with a direction to the S.D.J.M. and was produced in court after its examination and having been returned in sealed cover. Hence, it can well be said that no prejudice has been caused to the appellants, hence, the prosecution has been able to prove the charges beyond reasonable doubts and thus there is no need to interfere with the judgment of conviction and order of sentence. 17. Hence, prosecution has been able to prove the charges beyond reasonable doubts and there is nothing in their evidence to reject the prosecution case. The defects pointed out do not go to the root of the prosecution case to reject the prosecution case, therefore, I do not find any reason to interfere with the judgment of conviction and order of sentence, therefore, the appeal is dismissed. Appeal dismissed.