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2017 DIGILAW 944 (GAU)

Ramavatar Sahani v. State of Assam

2017-07-19

HITESH KUMAR SARMA

body2017
JUDGMENT : This is an appeal, against the judgment and order dated 31.12.2008, passed by the learned Additional Sessions Judge, (FTC), Dibrugarh, in Sessions Case No. 27/2007, convicting the accused/appellant and sentencing him to Rigorous Imprisonment for 2 (two) years, and to pay a fine of Rs. 500/- (rupees five hundred), in default to undergo Rigorous Imprisonment for 2 (two) months for commission of offence under Section 25(1-B)(a) of the Arms Act. 2. The fact leading to the prosecution case is that, on 21.7.1997, the complainant (PW4), while on police patrolling duty, received information that a gang of dacoits, armed with pistols, assembled in the residence of the present accused/appellant. On receipt of such information, at about 3:00 am, they rushed to the house of the accused/appellant, apprehended him and recovered a handmade pistol with 4 rounds of 303 live ammunition from his possession. PW4, the Investigating Police Officer, lodged an FIR with the Dibrugarh Police Station, which was registered as Dibrugarh PS Case No. 417/1997 under Sections 399/402 IPC read with Section 25(1-B)(a) of the Arms Act, and entrusted the investigation to the Investigating Officer (PW4). During the course of investigation, the Investigating Police Officer arrested the accused persons including the present appellant, forwarded them to judicial custody, and on completion of the investigation, submitted charge-sheet under the aforesaid Sections of law. 3. On receipt of the case, on being committed by the learned Magistrate, the learned additional Sessions Judge, Dibrugarh, framed charge against the accused/appellant under Sections 399/402 IPC read with Section 25(1-B)(a) of the Arms Act, to which charges, the accused persons pleaded innocence, and therefore, the learned Additional Sessions Judge, Dibrugarh, proceeded with the trial. 4. The point before this court for determination is, whether the accused/appellant was in possession with a handmade pistol in violation of the provisions of Section 3 of the Arms Act, without holding a license ? 5. The prosecution examined 4 (four) witnesses to bring home the charge against the accused persons including the accused/appellant. 6. 4. The point before this court for determination is, whether the accused/appellant was in possession with a handmade pistol in violation of the provisions of Section 3 of the Arms Act, without holding a license ? 5. The prosecution examined 4 (four) witnesses to bring home the charge against the accused persons including the accused/appellant. 6. The evidence of PW1 and PW2, who are the witnesses to the seizure, vide Ext.1, have stated in the evidence categorically that in-spite of the fact that they had put their signatures in the seizure list which shows seizure of the handmade pistol from the possession of the accused/appellant yet, in fact, they were not present at the time of conducting the search and rather they saw the seized pistol in the hands of police in the morning, and on being asked by the police, i.e. PW4, they had put their signatures, meaning thereby, that at the relevant time of search, they were not personally present at the place of occurrence. The evidence of both these witnesses are taken together, since their evidence is harmonious on the point of their absence at the place of occurrence at the time of conducting the search. PW3 is the constable, who accompanied PW4/Investigating Police Officer to the place of occurrence, where search was made and the arms were recovered from the possession of the accused/appellant. In his evidence, he stated that they visited the house of the accused/appellant and searched the same before 12:00 midnight, whereas the Investigating Police Officer, examined as PW4, himself is found to have stated in his evidence that it was at 3:00 am in the wee hours of the morning, the search was conducted in the house of the accused/appellant. The time of conducting search, as stated by PW3 and PW4, could have been taken as discrepancy only had PW1 and PW2 not stated that it was in the morning only they saw the arms at the hands of the Investigating Police Officer, and then at his instance, put their signatures in the Ext.1. 7. In the appeal preferred before this court, the appellant, inter-alia, has taken the ground of failure on the part of the prosecution to prove the recovery of the seized arms as well as the seizure itself. 7. In the appeal preferred before this court, the appellant, inter-alia, has taken the ground of failure on the part of the prosecution to prove the recovery of the seized arms as well as the seizure itself. PW1 and PW2 are the witnesses of the seizure as produced by the prosecution, but they are not found to have supported the evidence on the search in their presence and the consequent seizure by the Investigating Police Officer, as discussed in the evidence above. 8. That apart, there is no instance in the evidence of the prosecution to suggest, even remotely, that there was an attempt, on the part of the Investigating Police Officer, to comply with the provisions of Section 100(4) of the Cr.PC, relating to search in a closed place, i.e. the house of the accused/appellant in the instance case. As the witnesses to the alleged search, i.e., PW1 & PW2, did not support him in respect of their presence at the time of such search. 9. On the other hand, the learned counsel for the appellant has raised that sanction for prosecution of accused/appellant for holding an arm without license is a must, as mandated by the provisions of Section 39 of the Arms Act. In the instant case, as submitted by the learned counsel for the accused/appellant, there was no sanction which vitiated the whole prosecution. The learned Additional Public Prosecutor for the State, Ms. S Jahan, has submitted that the prosecution sanction was accorded by the District Magistrate which is available in the record of the case although it was not produced in evidence before the court by the prosecution, perhaps, inadvertently. Whatever it may be, the fact remains that the prosecution sanction, even if available, was not brought on record enabling defence to subject the same to scrutiny during the cross-examination. Therefore, there is clear violation of the mandate of Section 39 of the Arms Act, vitiating even the whole trial of the case. 10. In view of the discussions made above and the findings recorded therein, this court is of the view that the prosecution has not been able to bring home the charge against the accused/appellant entitling him to an order of acquittal. 11. Accordingly, the appeal is allowed. 12. Send down the LCR along with the copy of this judgment.