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2017 DIGILAW 1571 (JHR)

Narayan Ganjhu v. State of Jharkhand

2017-08-31

RONGON MUKHOPADHYAY

body2017
JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. A.K. Chaturvedi, learned counsel, appearing for the petitioner and Mr. Ravi Kumar Singh, learned A.P.P. for the State. 2. This application is directed against the judgment dated 28.5.2005 passed in Criminal Appeal No. 16 of 2004 by the learned Sessions Judge, Latehar, whereby and whereunder, the judgment of conviction and the order of sentence dated 27.4.2004 passed by learned Judicial Magistrate, 1st Class, Latehar, in G.R. Case No. 236 of 2001 (T.R. No. 91 of 2004), convicting the petitioner for the offences punishable u/s. 25(1-b)(a) of the Arms Act and u/s. 17(ii) of the Criminal Law Amendment (C.L.A.) Act and sentencing him to undergo S.I. for 2 years on both the counts, has been affirmed. 3. The prosecution story in brief is that the house of the petitioner was raided by the police personnel and the petitioner was apprehended when he was coming out of the house, holding a muzzle gun in presence of two independent witnesses. In course of enquiry, the raiding party learnt that the accused namely Nasir Ansari is an active member of M.C.C. who used to realise levy and the levy was paid through him. It is alleged that on 23.6.2001, 8 persons had come to the house of the petitioner and Rs. 50,000/- was paid to Ran Vijay Ji and Doctor as levy which was realised from the public. The raiding party searched the house of Nasir Ansari and on search Rs. 78,900/- kept in a bag was seized in presence of independent witnesses. Based on the aforesaid allegation G.R. Case No. 236 of 2001 was registered for the offences punishable u/s. 25(1-b)(a)/26 of the Arms Act and u/s. 17 of the Criminal Law Amendment (C.L.A.) Act. Investigation resulted in submission of charge-sheet and after cognizance was taken, trial proceeded. 4. Since prosecution has been able to prove its case beyond all reasonable doubt, the petitioner was convicted for the offences punishable u/s. 25(1-b)(a) of the Arms Act and u/s. 17(ii) of the Criminal Law Amendment (C.L.A.) Act by the learned trial court and sentenced accordingly. The appeal preferred by the petitioner being Criminal Appeal No. 16 of 2004 was also dismissed by learned Sessions Judge, Latehar on 28.5.2005. 5. It has been stated by Mr. The appeal preferred by the petitioner being Criminal Appeal No. 16 of 2004 was also dismissed by learned Sessions Judge, Latehar on 28.5.2005. 5. It has been stated by Mr. A.K. Chaturvedi, learned counsel for the petitioner that there are several discrepancies in the evidence of the witnesses which have not been properly appreciated by the learned courts below. It has also been submitted that the informant could not have investigated the case and the same has greatly prejudiced the case of the defence. It has further been submitted that the ballistic expert has not been examined and in absence of non-examination of ballistic expert, the case of the prosecution has failed. An alternative argument has been advanced by learned counsel for the petitioner that if this Court is not inclined to interfere with the impugned judgment of conviction, the period of sentence be modified, considering the fact that the petitioner is facing rigours of criminal case since 2001 and he has remained in custody for about 9 months. 6. Learned A.P.P. appearing for the State has opposed the prayer of the petitioner. 7. In course of trial ten witnesses were examined on behalf of prosecution. P.W. 1, Junaid Anwar is a witness to the seizure of cash recovered from the house of Nasir Mian. This witness had stated that he does not have knowledge of any recovery from his possession. P.W. 2 Md. Irfan is also a witness to the seizure with respect to the recovery of cash. P.W. 3 Kameshwar Singh was a member of raiding party. He has stated about the recovery of muzzle gun from the possession of the petitioner and this witnesses has categorically stated that except muzzle gun, there was no recovery of any incriminating article from the possession of the petitioner. P.W. 4, Sada Shiv Jha is Sergeant Major who had examined the seized muzzle gun and had stated that the single barrel gun was effective. P.W. 5 Maneshwar Ram is the informant and the Investigation Officer of this case. He has stated that a raid was conducted in the house of the petitioner and he was arrested with a muzzle gun. P.W. 6, Praveen Kumar was also a member of raiding party who has supported the prosecution case. P.W. 7 Satyabir Singh is a formal witness. He has stated that a raid was conducted in the house of the petitioner and he was arrested with a muzzle gun. P.W. 6, Praveen Kumar was also a member of raiding party who has supported the prosecution case. P.W. 7 Satyabir Singh is a formal witness. P.W. 8 Ugino Kujur, is also a seizure witness who has proved the seizure list, but he has stated that he had no knowledge of the occurrence. P.W. 9, Md. Jahim is also a seizure witness who has proved the seizure list, but he has stated that he had no knowledge of the occurrence. P.W. 10 Michel Kispotta has produced some letters which were seized. 8. The defence has also examined 9 witnesses in support of its case. D.Ws. 1, 2, 3, 4 and 5 are co-villagers of the petitioner and they have stated that no recovery was made from the possession of the petitioner at the time of arrest. Further, D.Ws. 6, 7, 8 and 9 have also supported the version of aforesaid witnesses. 9. Most of the prosecution witnesses who are members of the raiding party have stated in a very categoric term about the petitioner being apprehended with a muzzle gun. Although the defence witness have tried to project a picture that nothing has been recovered from the possession of the petitioner, but the materials available on record as well as the oral and documentary evidence do point to the fact that recovery of a muzzle gun was made from the possession of the petitioner. 10. Although learned counsel for the petitioner has stated about the discrepancies in the evidence of the witnesses, but as would appear that the evidence of the witnesses of P.W. 4, P.W. 5 and P.W. 6 who are members of the raiding party, all of them have categorically stated in their statements with respect to recovery of muzzle gun from the possession of the petitioner. The other contention of the learned counsel for the petitioner with respect to the informant being the Investigating Officer have also been dealt with by the learned trial court and such contention has been rejected in view of the fact there is no discrepancy with respect to the seizure of firearm and due sanction for prosecution was also given. The other contention of the learned counsel for the petitioner with respect to the informant being the Investigating Officer have also been dealt with by the learned trial court and such contention has been rejected in view of the fact there is no discrepancy with respect to the seizure of firearm and due sanction for prosecution was also given. The Sergeant Major who has been examined as P.W. 4 and who had examined the seized muzzle gun had stated that the single barrel gun was effective and merely because the ballistic expert has not been examined, the same cannot demolish the prosecution case. 11. Thus from the oral evidence as well as the documentary evidence which has been brought on record, the prosecution has been able to prove its case beyond all reasonable doubt with respect to the recovery of muzzle gun from these possession of the petitioner. Considering such fact situation, the petitioner has rightly been convicted u/s. 25(1-b)(a) of the Arms Act and u/s. 17(H) of the Criminal Law Amendment (C.L.A.) Act, which has also been affirmed in appeal. Therefore, there being no reason to conclude otherwise, the order of conviction passed against the petitioner is hereby sustained. As regards the sentence which has been imposed upon the petitioner, it appears that the petitioner has been facing rigours of the prosecution case since 2001 and he has remained in custody since 26.6.2001 to 1.12.2001 and after dismissal of appeal since 4.12.2006 to 30.3.2007 and thus petitioner has remained in custody for about 9 months. In such view of the matter, the order of sentence passed against the petitioner is modified to the period already undergone by the petitioner. 12. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.