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2017 DIGILAW 1165 (JHR)

Vijay Kumar Singh v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Hemant Kumar Shikarwar, learned counsel, appearing for the petitioner and Mr. Awnish Shankar, learned A.P.P. for the State. 2. This application is directed against the judgment dated 07.02.2002 passed in Criminal Appeal No. 140 of 1995 by learned 7th Additional Sessions Judge, Palamau at Daltonganj, whereby and where under, the Judgment of Conviction and the order of sentence dated 22.11.1995 passed by learned Judicial Magistrate, 1st Class, Palamau at Daltonganj in G.R. No. 509 of 1995 (T.R. No. 942 of 1995), convicting the petitioner for the offence under section 25(1)(a) of the Arms Act has been upheld and the sentence of R.I. for 3 years has been affirmed. 3. The allegation made in the F.I.R. is that while the informant was going to Daltonganj by passenger train, the engine of the trail developed some mechanical snag. It is alleged that while the informant was standing at Kajri railway station he was robbed by two miscreants. It is alleged that one of the accused snatched his bag and the informant caught hold of two miscreants and all of them fell into a ditch. It is further alleged that one person escaped whereas the petitioner was apprehended and from the possession of the petitioner, an amount of Rs. 1947, one knife and one loaded country made pistol were recovered. Based on the aforesaid allegation two F.I.Rs. under section 25(1)(a) and 26 of the Arms Act and another under Section 394 and 411 of the I.P.C. were instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken charge was framed against the petitioner under section 25(1)(a) and 26 of the Arms Act. The learned Judicial Magistrate, Palamau at Daltonganj vide judgment 22.11.1995 had convicted the petitioner for the offence punishable under Section under section 25(1)(a) and 26 of the Arms Act and sentenced him to undergo R.I. for 03 years under each of the sections which has been directed to run concurrently. The petitioner preferred an appeal being "Criminal Appeal No. 140 of 1995 in which vide judgment dated 07.02.2002 passed by learned Additional Sessions Judge-VII, Palamau at Daltonganj, the conviction under section 25(1)(a) Arms Act was upheld whereas the petitioner was acquitted under section 26 of the Arms Act. 4. In course of trial, prosecution has examined as many six witnesses in support of its case. 4. In course of trial, prosecution has examined as many six witnesses in support of its case. P.W. 1 Paramjeet Singh who is the informant has stated that while he was going to Daltonganj, the engine of the train developed some snag as a result of which he had to de-board. He further stated that when he was standing at Kajri railway station two persons started snatching his bag which was objected by the petitioner and scuffle commenced. On alarm several persons assembled and one person was apprehended and he was found in possession of one country made pistol, knife and some cash amount. P.W. 2 is a seizure list witnesses who has stated that the seizure was not made in his presence. P.W. 3 is the I.O. who upon conducting investigation had submitted charge-sheet against the petitioner. P.W. 4 Jagdish Paswan was the officer-in-charge of Rail P.S. Daltonganj, who has stated that after receiving information several railway policemen were sent to Kajri railway station including this witness. He has further deposed that incriminating articles seized from the possession of the petitioner led to preparation of seizure list. This witness had instituted the F.I.R. on his self statement. P.W. 5 Ramrup Paswan had stated that he was posted at the relevant time as Inspector in Rail P.S. at Palamau. He has also stated that when he went along other police personnel to Kajri railway station he had seen that the petitioner was apprehended and firearm was recovered from his possession. P.W. 6 has proved the sanction report of the District Magistrate, Palamau. 5. It has been stated by learned counsel for the petitioner that the identification of the petitioner itself is doubtful as no source of light was present when the incident had taken place. Recovery of incriminating articles, as alleged from the possession of the petitioner could not be proved. Learned counsel further submits that two of the main witnesses, namely, Sergeant Major and the District Magistrate have not been examined which is fatal to the prosecution case. Learned counsel further submits that the booking clerk namely, Narayan Rai, who handed over the seized articles to the informant had also not been examined and the circumstances enumerated above do suggest non-involvement of the petitioner in the commission of the offence. 6. Learned counsel further submits that the booking clerk namely, Narayan Rai, who handed over the seized articles to the informant had also not been examined and the circumstances enumerated above do suggest non-involvement of the petitioner in the commission of the offence. 6. It appears from the evidence of the witnesses that no doubt had arisen with respect to the apprehension of the petitioner with a loaded country made pistol having been recovered from his possession. The sanction order of the District Magistrate, Palamau and the report of the Sergeant Major have duly been proved and exhibited. Non-examination of the Sergeant Major or the District Magistrate cannot be fatal to the prosecution case since the sanction order as well as test report has been brought on record by the prosecution and have been duly proved by the competent witnesses. In the background of the consistent evidence of the prosecution of apprehending the petitioner with incriminating articles including firearm, non-examination of the booking clerk who had handed over the seized articles to the informant does not bear much significance. The informant P.W. 1 had not surrendered meekly but had fought with the miscreants which has resulted in one of them being apprehended. The evidence of P.W. 1 is fair, impartial and relates to the actual incident which had taken place. No concoction or adulteration in the evidence of P.W. 1 could be detected and the evidence of the railway police personnel examined as P.W. 3, 4 and 5 substantiates the recovery of firearm from the possession of the petitioner. The learned appellate court had acquitted the petitioner for the offence under section 26 of the Arms Act while affirming the conviction by the learned trial court with respect to section 25(1)(a) of the Arms Act. The judgment of conviction therefore is not required to be interfered with in view of the circumstances enumerated above. 7. As regards the sentence, learned counsel for the petitioner has stated that the petitioner is facing the rigours of prosecution since 1991 and the petitioner has been saddled with another case arising out of same incident under Section 394/411 I.P.C. in which he has also been convicted. Learned counsel has further stated that the petitioner remained for a considerable time in custody. 8. Learned counsel has further stated that the petitioner remained for a considerable time in custody. 8. Considering the facts which have been narrated by the learned counsel for the petitioner and that the petitioner is the first offender as also the fact that the petitioner had remained in custody for some time, the order of sentence awarded to the petitioner is modified to the period already undergone by the petitioner. 9. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.