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2017 DIGILAW 447 (GAU)

Md. Shajan Ali v. State of Nagaland

2017-04-12

L.S.JAMIR, SONGKHUPCHUNG SERTO

body2017
JUDGMENT : S. SERTO, J. 1. Heard Mr. A. Zho, learned Amicus Curiae, for the appellant and also heard Mr. K. Wotsa, learned P.P. Nagaland. 2. This appeal has been filed against the judgment and order dated 09.07.2010, passed by the learned District and Sessions Judge, Dimapur, in GR No. 491 of 2005, challenging the appellant's conviction and sentence under Section 396/34 of the IPC read with Section 25(1)(a) of the Arms Act, 1959. 3. Brief facts of the case: On 15.11.2005, at around 1:00 A.M. a group of 11 persons armed with guns broke into the shop cum residence of one Mr. Nandu Shah and while committing dacoity, shot dead one Mr. Rafique Ahmed at Zakiesato Colony, Ghorapatti, Dimapur, by two of the dacoits namely, Mr. Hukum Ali and Mr. Shajan Ali and a case was registered by the Dimapur East Police under Dmr. East P.S. Case No. 158/05 u/s 396 IPC. During the investigation police arrested 9 accused and were produced before the Judicial Magistrate First Class, Dimapur on 31.03.2006, and subsequently, the case was committed to the learned District and Sessions Judge, Dimapur. Charge was framed against all the accused persons under section 302/396/34 of the Indian Penal Code read with section 25(1)(a) of the Arms Act. 4. During the course of trial, prosecution produced 10 witnesses and they were examined. Being satisfied after hearing both the sides and the evidence produced in the trial, the learned District and Sessions Judge, by passing the judgment and order dated 09.07.2010, convicted and sentenced Accused Hukum Ali (stated deceased) and Accused Shajan Ali, to undergo imprisonment for life, aggregated to 20 years, for offence of dacoity with murder, U/S. 396/34 of the Indian Penal Code and another 6 years for offence U/S. 25(1)(a) of the Arms Act. Further, the learned Court also sentenced 8 other accused persons to undergo 10 years Rigorous Imprisonment for offences U/S. 396/34 of the Indian Penal Code and another 6 years Rigorous Imprisonment for offence U/S. 25(1)(a) of the Arms Act. All these sentences were directed to run concurrently. 5. Further, the learned Court also sentenced 8 other accused persons to undergo 10 years Rigorous Imprisonment for offences U/S. 396/34 of the Indian Penal Code and another 6 years Rigorous Imprisonment for offence U/S. 25(1)(a) of the Arms Act. All these sentences were directed to run concurrently. 5. The judgment and order of conviction and sentence, dated 09.07.2010, has been called in question in the present appeal on the following grounds; (i) that learned trial court committed error in law as well as in fact in convicting and sentencing the accused/appellant for life though the case of the appellant was a clear case of acquittal. (ii) that learned trial court completely failed to exercise his mind in deciding the case. (iii) that the learned trial court by considering some extraneous matter which are not on the record passed the impugned judgment and as such the same is liable to be set aside/ quashed. (iv) that the learned trial court did not at all consider the evidence of eye witnesses and as such the impugned judgment and order is vitiated by illegalities and irregularities and as such, it is liable to be set aside and quashed. (v) that the impugned judgment and order was not passed in accordance with law and as such the same is liable to be set aside and quashed. 6. Mr. A. Zho, learned Amicus Curiae, for the appellant, submitted strongly pressing that the impugned judgment and order of the learned Sessions Judge, is vitiated by non compliance of the mandatory provision of section 39 of the Arms Act, which provides for prosecution sanction of the District Magistrate. He also submitted that assuming but not admitting that the sanction was given since the same was never exhibited, the appellant has been denied the opportunity of assailing validity of it, as such, the same cannot be used as an evidence. Therefore, the learned Trial Court erred in convicting the appellant under section 25(1)(a) of the Arms Act. Mr. A. Zho, also submitted that the seized arms were neither sent for expert opinion to verify whether they were serviceable or not and none of the police officers involved in the investigation has stated in evidence that the arms were in working condition. Further, Mr. Mr. A. Zho, also submitted that the seized arms were neither sent for expert opinion to verify whether they were serviceable or not and none of the police officers involved in the investigation has stated in evidence that the arms were in working condition. Further, Mr. A. Zho submitted that, as the accused cannot be prosecuted for the offence under Arms Act, the question of committing murder or any other crime by using the seized arms does not arise, as such, the impugned judgment and order is illegal and deserves to be quashed/set-aside. In support of his submission Mr. A. Zho, cited judgments of the Hon'ble Supreme Court and various High Courts of the country, in the cases given below: (i) Mohinder Singh vs. State of Haryana, (1996) 11 SCC 369 (ii) Arjun Thapa vs. State of Chattisgarh, 2008 (1) Crimes 70 (iii) Madhusudan Harijan vs. State of Assam, (2000) 3 GLT 596 (iv) Ram Singh and Others vs. Col. Ram Singh, 1985 (Supp) SCC 611 (v) Sait Tarajee Khimchand vs. Yelamati Satyam alias Satteya, (1972) 4 SCC 562 (vi) Subhas Maruti Avasare vs. State of Maharastra, (2006) 10 SCC 631 (vii) Bapu vs. State of M.P. (2004) 2 Crimes 609 (viii) Rajesh Pathak alias Pramod Pathak vs. State of Chattisgarh (ix) Chitwant Singh vs. State of Punjab, (1989) 9 SCC 1997 (x) Sumer Singh Umed Singh Rajput vs. State of Gujrat, 2007 (13) SCC 83 7. The learned P.P. submitted that since the prosecution sanction was duly given by the District Magistrate concern and is a part of the record, even though the same was not exhibited that would not vitiate the trial. The learned P.P. further submitted that since this issue was not raised during the trial, the appellant is barred from raising the same at this stage. He also submitted that along with other seized items two country made guns, 2 nos. of 12 bore live ammunitions and empty ammunitions of the same bore, each, were exhibited. Absence of expert opinion on the serviceability of the guns does not in any way vitiate the trial. The learned P.P. submitted further that there is overwhelming evidence that the appellant and his other co-accused persons had committed the crime, therefore, such technical issues raised by the learned Amicus Curiae cannot upset the course of justice. Absence of expert opinion on the serviceability of the guns does not in any way vitiate the trial. The learned P.P. submitted further that there is overwhelming evidence that the appellant and his other co-accused persons had committed the crime, therefore, such technical issues raised by the learned Amicus Curiae cannot upset the course of justice. In support of his submission the learned P.P. drew our attention to the evidence of the witnesses. The learned P.P. also submitted further that the eye witness account of the incident given by the sole eye witness is unimpeachable, therefore, the same by itself is sufficient to convict the appellant. In support of his submission the learned P.P. cited the case of Daya Ram and Others vs. State of Haryana, (2015) 12 SCC 373 and Mano Dutt vs. State of U.P. (2012) 2 Crimes 27 : 2012 (4) SCC 79 . 8. We have gone through the records including the depositions of the witnesses, the exhibits, the seizure memos and also the cited judgments. We found the prosecution sanction purportedly given by the Deputy Commissioner, Dimapur, however, we also found that the same was not exhibited as submitted by the learned Amicus Curiae. Be that as it may, a plain reading of Section 39 of the Arms Act, would make it clear that prosecution sanction, of District Magistrate of the concerned district, is mandatory only when an accused is charged of having committed offences under section 3 of the Arms Act. The provision of section 39 of the Arms Act is reproduced here below; “39. Previous sanction of the district magistrate necessary in certain cases.-No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.” Section 25 of Arms Act is a penal provision for offences under different sections of the same Act. Under (1)(a) of the section, acts committed in violation of section 5 of the Act are given. Similarly, under (1B)(a) of the section, acts committed in violation of section 3 of the Act are given. These shows that the two sections are not only distinct from one another but are also treated differently by the Act. Under (1)(a) of the section, acts committed in violation of section 5 of the Act are given. Similarly, under (1B)(a) of the section, acts committed in violation of section 3 of the Act are given. These shows that the two sections are not only distinct from one another but are also treated differently by the Act. Therefore, when the Act itself makes it sanction of prosecution by the District magistrate concern, compulsory/mandatory only for the offences which are given in Section 3 of the Act, extending of such requirement for other offences in the Act, is not only unwarranted but would be in violation of the Act itself. In this case the charge and sentence against the appellant and his co-accused under the Arms Act, was only under section 25(1)(a) of the Act, which specifically mentions only the acts which are in contravention of section 5 as stated above. Therefore, prosecution sanction under section 39 of the Arms Act is not necessary and uncalled for in this case. 9. Now we are left with the charges under section 396/34 of the Indian Penal Code. The provision of law under this section is as follows; “396. Dacoity with murder.-If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” The prosecution story as supported by the evidence given by the prosecution witnesses 1 to 9, is as follows; That in the night of 15.11.2005 at about 12:30 am while the deceased victim (Rafique Ahmed) was spending time in chatting with one Mr. Nandu Shah in the latter's shop, suddenly, 5 persons including the appellant forced open the door and that prompted the two friends to shout chor-chor. At that moment one of the accused Hukum Ali fired from his country made 12 bore gun at the deceased victim, which was followed by another shot from the appellant. The two shots immediately killed the victim at the spot. Thereafter, the appellant and his co-accused numbering 11 persons including the appellant himself took away Rs. 5,000/- only, from the shop and went to another shop to continue the crime. The two shots immediately killed the victim at the spot. Thereafter, the appellant and his co-accused numbering 11 persons including the appellant himself took away Rs. 5,000/- only, from the shop and went to another shop to continue the crime. According to the police witnesses a Special Operation Team was constituted for investigation of the case and as a result of the effort made by the team all the accused person except two of them including the appellant were arrested and seized two country made arms used in the killing of the victim and 12 bore live ammunition 2 Nos. and 2 empty cartidges of the same bore. All the 5 police personnel who were involved in the investigation of the case gave evidence before the trial court and exhibited the Original Ejahar/the charge-sheet, crime weapons along with the seizure memos and without any flaw or dis-connectivity in the chain of events proved the prosecution case. One of the accused Hukum Ali made confessional statement under Section 164 of Cr.P.C. before the Judicial Magistrate First Class, Dimapur and confirmed the commission of the crime as charged by the prosecution. The only eye-witness is the shop owner in whose presence the victim was shot dead. According to his evidence given as PW. No. 3 the victim was shot dead in his full view inside his shop. He identified all the accused persons, who entered the shop including the appellant, during the trial. There was nothing in the cross examination which can throw even some element of doubt on the varsity of his evidence. Moreover, no DW was examined by the accused to discredit the evidence given by the P.Ws. One of the PWs. i.e. PW-2, stated in evidence that the appellant is his brother-in-law and was staying with them those days in his house. He also stated that all those accused persons used to frequently visit the appellant at his house and on that fateful night of 14.11.2005, also they were at his house till 12 midnight and thereafter, left his residence. And after about 15 to 20 minutes of their departure, he heard the sound of two gun shots. He also stated that all those accused persons used to frequently visit the appellant at his house and on that fateful night of 14.11.2005, also they were at his house till 12 midnight and thereafter, left his residence. And after about 15 to 20 minutes of their departure, he heard the sound of two gun shots. The witness also stated that the accused persons use to make handmade guns and also cartridges at his residence and his brother-in-law i.e. the appellant had disclosed to him that all the accused persons had been arrested, it is him and one of the accused namely, Abbas Ali only who are avoiding arrest. In his cross examination he also stated that his brother-in-law (appellant) was involved in notorious activities. All these evidences, particularly, the evidence of the eye witness to the crime i.e. PW-3 which is overwhelming and impregnable, shows that the victim fell to the gun shots of the two accused namely, Hukum Ali and Sajan Ali (the appellant) while committing dacoity in the shop of the eye witness, on that fateful night of 14.11.2005. Therefore, the submission of the learned Amicus Curiae, that in the absence of evidence proving that the arms seized and exhibited by the police, were examined by experts and found to have been serviceable at that time, would vitiate the trial, in our opinion, holds no water. To support or accept that kind of argument, however sound it may seem to be would mean letting off a criminal from the grip of justice, at the altar of laxity on the part of the investigation machinery while performing their duty. The learned Amicus Curiae, had also painstakingly argued that even if such expert opinion was not there, it would have been sufficient, if at least one of the police officers who were involved in the investigation had stated in evidence that the guns allegedly used in the commission of the crime were serviceable. In fact one of the police officers namely, Mr. Thesuohie Mera, who was examined as PW-7, stated in his cross examination, that the seized articles can still be used for its functions. This statement of the witness read in the context he was asked would mean that the crime weapons were serviceable at that time. Therefore, the submission of the learned Amicus Curiae on this count also is self defeating. 10. This statement of the witness read in the context he was asked would mean that the crime weapons were serviceable at that time. Therefore, the submission of the learned Amicus Curiae on this count also is self defeating. 10. In view of what has been stated above, we find nothing wrong in the judgment of the learned Sessions Judge. In support of the conclusion drawn, two judgments which were also cited by the learned Sessions Judge are reproduced here below: (i) Lingu Orang vs. State of Assam, (2006) 3 GLR 759 “Criminal Procedure Code, 1973 - Evidence of solitary eye witness - Conviction can be based on the evidence of solitary eye witness [Paras 21 and 22] 21. Learned amicus curiae has submitted that conviction cannot be based on the evidence of the solitary eye witness. 22. Coming to the question of conviction on the evidence of solitary witness, the law is more or less well settled that, the conviction can be based on the evidence of solitary eye witness. In the case of Anil Phukan vs. State of Assam and in Marwadi Kishore Parmanand vs. State of Gujarat, the Apex Court held that, if the evidence of solitary eye witness is found to be reliable, conviction can be based on the evidence of sole eye witness as stated above. In a later case of Sheelam Ramesh and Another vs. State of A.P. the above ratio of law was reiterated, wherein at para 18, the Apex Court observed that courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.” (ii) Amar Singh vs. Balwinder Singh and Others, (2003) 2 SCC 518 “D. Criminal Trial-Investigation - Defective investigation - Court should be circumspect in evaluating evidence but prosecution case cannot be rejected solely on the ground - Murder by gunshot firing - Failure on the part of the investigating officer to send the firearm and the empties recovered from the spot to Forensic Science laboratory and failure to take into possession wire gauze of the window of the baithak from where the gunshot was fired - Held, not fatal to the prosecution case when the case is fully established from the testimony of the eyewitnesses - Criminal Procedure Code, 1973, Section 157. Held: In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect.” “Para 15......It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. In Karnel Singh vs. State of M.P. (1995) 5 SCC 518 it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav and Others vs. State of Bihar, (1999) 2 SCC 126 while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav vs. State of Bihar, (1998) 4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.” 11. In view of the conclusions arrived at and in the light of the views of the Hon'ble Supreme Court and the High Court, we find no merit in the appeal as stated, we hereby dismiss the appeal and upheld the judgment and order of the learned Sessions Judge. 12. Send down the LCR's forthwith along with a true copy of this judgment. 13. Before we part with the judgment, we record our appreciation for the learned Amicus Curiae for the assistance rendered by him and he shall be entitled to legal fees of Rs. 7,500/- which shall be paid by the Legal Services Authority, Nagaland on production of a certified true copy of this judgment. 14. The Registry is directed to furnish a certified true copy of the judgment of this Court to the learned Amicus Curiae free of cost.