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2015 DIGILAW 1191 (GAU)

Bhusan Chandra Roy v. State of Assam

2015-09-16

C.R.SARMA

body2015
JUDGMENT : C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 28.9.2007, passed by the learned Addl. Sessions Judge (FTC). Hojai at Sankardev Nagar in Sessions Case No. 349 (N)/2005 arising out of G.R. Case No. 588/1999 under Sections 399/307 IPC read with Section 25(1-B) of the Arms Act. By the impugned judgment and order, the learned Addl. Sessions Judge (FTC), Hojai convicted the appellant, under 25(1-B) of the Arms Act and sentenced him to suffer rigorous imprisonment for 2 years and pay fine of Rs. 1,000/- in default, suffer simple imprisonment for 30 days. 2. The prosecution case, in brief, is that on 10.9.1999, the Officer-in-Charge of Hojai Police Station received a secret information that some miscreants with firearms and weapons had assembled in the verandah of Sri Joyanta Paul of Bishnu Polly, Hojai, Nagaon for the purpose of committing crime. Accordingly, the Officer-in-Charge, alongwith his office staff namely, S.I., Sri D. Roy and Sri D. Bora rushed to the spot and cordoned the area at about 12-30 pm. At the arrival of the police, the miscreants fired at the police party by using revolver and compelling the police party to retaliate by opening fire, as a result of which one of the miscreants sustained bullet injury. However, they managed to run away by throwing the revolver into the jungle. The police party chased the miscreants and caught two of the miscreants, namely, Shri Bhusan Roy (appellant) and Sri Nepal Roy (since acquitted). In order to trace out the revolver, alleged to be thrown by Shri Bhushan Roy into the jungle, the police searched the same in the nearby the jungle and recovered a point 38 revolver and one round of life cartridge from the jungle. 3. Accordingly, police registered a case under Sections 387/307 IPC, read with Sections25(1)(1-B)/27 of the Arms Act. 4. At the close of the investigation, police submitted charge sheet under Sections 387/307IPC read with Sections 25(1)(1-B)/27 of the Arms Act. 5. The case was committed to the court of Sessions for trial. The learned Addl. Sessions Judge (FTC), Hojai framed charges under Sections 399/307 IPC and Section 25(1-A) of the Arms Act. The charge was read over and explained to the accused persons, to which they pleaded not guilty. 6. In order to prove its case, the prosecution examined as many as 7(seven) witnesses including the Investigating Officer. The learned Addl. Sessions Judge (FTC), Hojai framed charges under Sections 399/307 IPC and Section 25(1-A) of the Arms Act. The charge was read over and explained to the accused persons, to which they pleaded not guilty. 6. In order to prove its case, the prosecution examined as many as 7(seven) witnesses including the Investigating Officer. At the close of the evidence, the accused persons were examined under Section 313 Cr.P.C. The denied the allegations and declined to adduce defence witness. 7. Considering the evidence, on record, the learned Addl. Sessions Judge (FTC), Hojai came to the findings that the prosecution failed to establish the charge against the appellant, under Section 25(1-B) of the Arms Act Accordingly, the appellant was held guilty of the offence under Section 25(1-B) of the Arms Act and he was convicted and sentenced, as indicated above. The other accused namely Sri Nepal Roy was acquitted. 8. Aggrieved by the said conviction and sentence, the appellant has come up with this appeal. 9. I have heard Mr. I. Uddin, learned counsel for the appellant and Mr. K. Munir, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 10. Mr. I. Uddin, learned counsel for the appellant, taking this court through the evidence, on record, has submitted that the prosecution failed to establish, beyond all reasonable doubt, that the fire arm i.e. the revolver with the cartridge was found in the possession of the appellant. The learned counsel has submitted that there is nothing, on record, to show that the pistol, alleged to be thrown by the appellant, into the jungle, was the pistol recovered and seized by the Investigating Officer. It is also submitted that the evidence given by P.W. 2, who was an independent witness, belies the prosecution version that the pistol, alleged to be thrown by the appellant was recovered by the police. 11. The learned counsel for the appellant further submitted that the learned Addl. Sessions Judge (FTC), Hojai, Sankardev Nagar committed error by failing to properly appreciate the evidence, on record and came to the erroneous finding that the pistol thrown by the appellant, into the jungle and was recovered by the police. The learned counsel for the appellant has submitted that the impugned conviction and sentence are not based on evidence, on record, and as such, the appellant is entitled to acquittal. 12. The learned counsel for the appellant has submitted that the impugned conviction and sentence are not based on evidence, on record, and as such, the appellant is entitled to acquittal. 12. Controverting the argument, advanced by the learned counsel for the appellant, Mr. K. Munir, learned Addl. Public Prosecutor, Assam, has submitted that there are sufficient materials, on record, to show that the appellant, on being chased by the police, had thrown the pistol into the jungle and that the police recovered the same. 13. In view of the above, the learned Addl. Public Prosecutor, Assam has submitted that the prosecution could successfully prove that the appellant was in possession of the fire arm i.e. the pistol. It is also submitted that the learned Addl. Sessions Judge (FTC), Hojai committed no error by recording the conviction and the sentence, as indicated above. 14. Having heard the learned counsel for both the parties, I have carefully perused the evidence, on record and the impugned judgment and order. 15. Section 25(1-B) of the Arms Act, reads as follows: "25. It is also submitted that the learned Addl. Sessions Judge (FTC), Hojai committed no error by recording the conviction and the sentence, as indicated above. 14. Having heard the learned counsel for both the parties, I have carefully perused the evidence, on record and the impugned judgment and order. 15. Section 25(1-B) of the Arms Act, reads as follows: "25. Punishment for certain offences.- ................................(1-B) Whoever- (a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3; or (b) acquires, has in his possession or carries in any place specified by notification under Section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or (c) sells or transfers of any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of Section 8 or does any act in contravention of sub-section (1) of that section; or (d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of subsection (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or (e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of subsection (1) of section 9; or (f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or (g) transports any arms or ammunition in contravention of section 12; or (h) fails to deposit arms or ammunition as required by sub-section (2) of section3, or sub-section (1) of section 21; or (i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstruct the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine; Provided that the Court may for any adequate or special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than [one year]." 16. In view of the attending facts and circumstances of this case, in order to hold the appellant guilty of committing offence under Section 25(1-B) of the Arms Act, it was the burden of the prosecution to prove, by adducing substantive evidence, that the accused person was in possession of the seized firearm and that he had thrown the same into a nearby jungle. 17. Admittedly, in the present case, the prosecution version is that the appellant, on being chased by the police, at about 12-30 a.m. (as per FIR Ext. 3) had thrown the pistol into the jungle and the same was recovered after searching in the jungle. There is no dispute that the police had recovered and seized one pistol from the jungle. Now, the question to be answered is whether the fire arm, alleged to be thrown by the accused, was recovered and seized by the police. 18. Mr. Anandi Das, S.I. of Police, deposing as P.W. 1, stated that the FIR (Ext. 3) was lodged by I/C, Shri Hangsa Das. He stated that, after obtaining prosecution sanction, he collected aimer's report, and submitted the charge sheet. These police officers were not present at the time of recovery of the weapon. 19. Mr. Raj Kumar Dixit (P.W. 2) a teacher by profession, was as an independent witness to the occurrence. He stated that, when he was sitting in his room, he heard a sound of gun fire and saw some police officials searching for a gun. He stated that there was a tree near the back side window of his house and that he had asked the police officials to search the gun in the said tree, but the gun was not found there. He further stated that at about 4-30 p.m. the police party, again visited the said place and this time he told them to carefully examine the tree by zarking it and that the tree being zarked, a gun had fallen down, which was seized by the police. He also stated that it was a small weapon and that he did not know whether it was a pistol or gun. He also stated that he did not know who was apprehended by the police. 20. He also stated that it was a small weapon and that he did not know whether it was a pistol or gun. He also stated that he did not know who was apprehended by the police. 20. From the evidence of P.W. 2, it appears that the search for the gun was made twice and the same was recovered during the second search, conducted by the police at about 4-30 p.m. He stated that the first search was made in between 10.00 a.m. to 12.00 noon and the second search was made in the evening at about 4-30 p.m. It is also found that, though search for the gun was made in the same tree, the gun was not found at the time of first search. Hence, it is found that the gun was not found immediately after the same was thrown by the appellant Hence, it is found that there was time gape of about four hours from the of throwing and finding the gun. 21. Sri Angshuman Das, another independent witness, deposing as P.W. 3, stated that police had seized a gun like item, vide Ext. No. 4. In his cross examination, this witness stated that he did not know as to who was arrested and what was found during the search. He further stated that he did not know what was written in the seizure list and that police did not tell him as to what was seized. The above evidence, given by P W 3, does not substantiate the prosecution version that the gun thrown by the appellant was recovered from the jungle. 22. Mr. Pinak Das, who was also an independent witness, deposing as P.W. 4, stated that police called him to the place of occurrence and took his signature on papers. He stated that he did not see anything. He also stated that he did not know as to why his signature was taken by the police and what item was seized. This witness also did not support the prosecution version with regard to recovery and seizure of gun. 23. Shri Shudangshu Roy, who deposed as P.W. No. 5 stated that his signature was taken by police on a blank paper. He has also expressed his innocence with regard to seizure of any item. 24. This witness also did not support the prosecution version with regard to recovery and seizure of gun. 23. Shri Shudangshu Roy, who deposed as P.W. No. 5 stated that his signature was taken by police on a blank paper. He has also expressed his innocence with regard to seizure of any item. 24. Sri Hangsha Nath Das, the then Officer-in-Charge of Hojai Police Station, deposing as P.W. 6, stated that, on the basis of a secret information, he alongwith his staff visited the verandah of Jayanta Paul and found the appellant and 3/4 other persons, who were armed with weapons. He further stated that the appellant and other miscreants were chased by police and the appellant, who was apprehended by the police, had thrown a point 38 pistol into the jungle, which was recovered and seized by S.I., Sri Dimbeswar Roy, after searching the jungle. He exhibited the FIR as Ext. No. 3. This witness further stated that he was not present at the time of preparation of the Seizure List. His evidence that he was not present at the time of preparation of the seizure list is contradictory to his evidence that the pistol was recovered from the jungle. If he was present at the time of recovery of the pistol, his evidence that he was not present at the time of preparation of the seizure list is not believable. Hence, this evidence does not inspire confidence to believe that the pistol was possessed by the appellant. 25. That apart, carefully reading the evidence given by this witness it is found that the pistol was recovered from the jungle, immediately after the same was thrown by the appellant. He does not say anything about the search of the jungle twice and recovery of the pistol during the search made for the second time, as indicated by P.W. 2. Hence, I find major contradiction in the evidence given by P.W. Nos. 2 and 6 regarding search and recovery of the pistol. The said contradiction raises doubt about the prosecution story that the pistol was thrown by the appellant. 26. Sri Dimbeswar Roy, S.I. of Police, as he then was, deposing as P.W. 7, stated that he accompanied the Officer-in-Charge of Hojai Police Station to the place of occurrence and found two dacoits in the verandah of Sri Jayanta Paul. The said contradiction raises doubt about the prosecution story that the pistol was thrown by the appellant. 26. Sri Dimbeswar Roy, S.I. of Police, as he then was, deposing as P.W. 7, stated that he accompanied the Officer-in-Charge of Hojai Police Station to the place of occurrence and found two dacoits in the verandah of Sri Jayanta Paul. This witness clearly stated that, at the time of their arrival in the verandah of Sri Jayanta Paul, there was none other than the appellant and Sri Nepal Roy. But P.W. 6, who led P.W. 7, stated that about 3/4 persons, armed with weapons, were found in the verandah of Sri Jayanta Paul. The said contradiction, regarding number of the accused persons, raises doubt about the veracity of the evidence given by P.W. 6 and P.W. 7. He further stated that the appellant also tried to run away, had thrown a point 38 revolver with two cartridges and that those were seized by the police vide Ext. No. 4. 27. From the evidence of P.W. 6 and P.W. 7, it appears that the revolver, thrown by the appellant, was found in the jungle, immediately after the same was thrown, but their said evidence has been belied by the evidence given by PW. 2. 28. Except the evidence of P.W. 2, there is no other independent evidence regarding search and seizure of the said pistol. P.W. 2 in his evidence clearly stated that the police searched the jungle twice i.e. for the first time at around 10.00 a.m. to 12.00 noon and for the second time at around 4-30 p.m. As stated by P.W. 2, during the first search, made in between 10.00 a.m. to 12.00 noon i.e. though the search was made in the same tree was examined, the pistol was not found, but, surprisingly enough, during the second search i.e. at about 4-30 p.m. the pistol was found in the same place, as the pistol had fallen from the tree, on being jarked. There is nothing to disbelieve the evidence of P.W. 2 (a teacher), who was an independent witness to the occurrence. Hence, it is found that the pistol was not found immediately after the same was thrown by the appellant. There is nothing to disbelieve the evidence of P.W. 2 (a teacher), who was an independent witness to the occurrence. Hence, it is found that the pistol was not found immediately after the same was thrown by the appellant. There is nothing, on record, to hold that none had excess to the place, from where the pistol was found during the intervening period i.e. from the time of the first search to the second search. Hence, it can't be safely concluded that the pistol thrown by the appellant (if any) in between 10.00 a.m. to 12.00 noon, was the pistol found at about 4.30 p.m. 29. It is settled law that, in a criminal trial, the prosecution is required to prove the charge, beyond all reasonable doubt and the benefit of doubt should always go in favour of the accused person(s). 30. Considering the entire aspect of the matter and the evidence, on record, I have no hesitation in holding that the prosecution failed to prove, beyond all reasonable doubt that the pistol seized and recovered by the police was the pistol thrown by the appellant. Hence, in my considered opinion, the prosecution failed to establish that the appellant had thrown the same pistol into the jungle. Hence, there is no substantive and convincing evidence to believe that the appellant possessed the said pistol. 31. In view of what has been discussed above, I am inclined to hold that the conviction and sentence are not maintainable. Therefore, I find merit in this appeal. The appeal is allowed. The conviction and sentence, dated 28.9.2007, recorded by the learned Addl. Sessions Judge (FTC), Hojai at Sankardev Nagar in Sessions Case No. 349 (N)/2005 (arising out of G.R. Case No. 588/1999) against the appellant are set aside and quashed. The appellant is acquitted and set at liberty. Return the LCR.