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2016 DIGILAW 435 (JHR)

Santosh Pandey v. State of Jharkhand

2016-03-08

PRASHANT KUMAR

body2016
JUDGMENT : This revision application is directed against the judgment dated 29.05.2015, passed by the learned Sessions Judge, Dhanbad in Criminal Appeal No.151 of 2012, whereby he dismissed the appeal and affirmed the judgment of conviction and order of sentence dated 19.04.2012, passed by the learned Judicial Magistrate, 1st Class, Dhanbad in G.R. Case No.3704 of 1993 (Trial No.699 of 2012), arising out of Kenduadih P.S. Case No. 96 of 1993, whereby the petitioner has been convicted under Sections 25(1-B) a and 26 of the Arms Act and sentenced to undergo R.I. for two years for each of the offences along with fine of Rs.500/- for each of the offences. The learned Judicial Magistrate further ordered that in default of the payment of fine, the petitioner shall further undergo S.I. for three months. 2. It is submitted by Sri A.S. Dayal, learned counsel for the petitioner that in the instant case, seizure of fire arm has not been proved by the prosecution by cogent and convincing evidence. It is further submitted that it also appears from the F.I.R. that the said fire arm was recovered by Shilendra Kumar Sinha, the then officer-in-charge of Kenduadih P.S., but he has not been examined on behalf of the prosecution. It is further submitted that two seizure list witnesses namely, Vijay Kumar Agarwal and Vijay Kumar Choubey have been examined as P.W.1 and P.W.3 respectively, but they specifically stated in their deposition that in their presence, nothing has been recovered from the possession of the petitioner. Accordingly, the learned counsel for the petitioner submits that the learned courts below had wrongly come to the conclusion that illegal fire arm recovered from the possession of the petitioner. Hence, the impugned judgments of the learned courts below cannot be sustained. 3. Sri P.K. Appu, learned Additional P.P. submits that P.W.2, Parsu Ram Prasad, had specifically stated in his deposition that the aforesaid illegal fire arm recovered from the possession of the petitioner in presence of two seizure list witnesses namely, Vijay Kumar Agarwal and Vijay Kumar Choubey and the learned courts below had considered their evidence and convicted the petitioner. Therefore, the impugned judgments of the courts below does not require any interference by this Court. 4. Having heard the submissions, I have gone through the record of the case. Therefore, the impugned judgments of the courts below does not require any interference by this Court. 4. Having heard the submissions, I have gone through the record of the case. From perusal of the F.I.R. (Ext.3), it is clear that the fire arm was recovered by the informant namely, Shilendra Kumar Sinha, the then officer-in-charge of Kenduadih P.S. in presence of two seizure list witnesses namely, Vijay Kumar Agarwal and Vijay Kumar Choubey, who were examined as P.W.1 and P.W.3 respectively. They have categorically stated in their deposition that in their presence, nothing has been recovered from the possession of the petitioner. Thus, the aforesaid two seizure list witnesses, who are the independent witnesses, not supported the seizure. From perusal of evidence of P.W.2, Parsu Ram Prasad, on whose evidence the learned courts below had relied upon, I find that he claimed that he recovered the fire arm from the possession of the petitioner in presence of two seizure list witnesses namely, Vijay Kumar Agarwal and Vijay Kumar Choubey, P.W.1 and P.W.3 respectively. But the deposition of this witness does not find support from aforesaid seizure list witnesses. From perusal of Ext.1 (Seizure list), I find that P.W.2, Parsu Ram Prasad, had not put his signature on the seizure list. Admittedly informant has not been examined in this case by the prosecution and no explanation given for the same. In that view of the matter, I find that in the instant case, the prosecution has miserably failed to prove the seizure of fire arm from the possession of the petitioner. Accordingly, I find that the learned courts below had committed serious irregularity/illegality in convicting and sentencing the petitioner for the offences under Sections 25(1-B) a and 26 of the Arms Act. 5. In view of the discussions made above, this criminal revisions application is allowed. The impugned judgments passed by the learned courts below are hereby set aside. The learned trial court namely, the Judicial Magistrate, 1st Class, Dhanbad is directed to release the petitioner abovenamed forthwith in connection with G.R. Case No. 3704 of 1993 (Trial No. 699 of 2012), arising out of Kenduadih P.S. Case No. 96 of 1993, if not wanted in any other case.