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2019 DIGILAW 1445 (JHR)

Md Ejaz Anwar v. State Of Jharkhand

2019-08-19

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT Anil Kumar Choudhary, J. -Heard learned counsel for the petitioner and learned Addl. P.P. for the State. 2. This criminal revision is directed against the judgment dated 18.07.2002, passed by the learned 8th Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 61 of 1995 by which the learned appellate court has confirmed the conviction and sentence of the appellant for the offence punishable under section 26 of the Arms Act. 3. The brief facts of the case is that police on secret information reached the place of occurrence and seized a country made revolver of seven chambers in presence of two independent witnesses from the possession of the accused -revision petitioner. After due investigation police submitted charge sheet and charges for the offences punishable under sections 25 and 26 of the Arms Act were framed against the accused-revision petitioner. 4. In support of its case, the prosecution has altogether examined 8 witnesses out of whom the P.W.1 -Sahdeo Gope proved the Ext. 1 and 1/1 being the FIR and the formal F.I.R. P.W.2-Shankar Lal Bhavsinka is a witness of the seizure and he has been declared hostile having not supported the case of the prosecution and before he was declared hostile, he has stated that he saw the cartridges lying on the ground and police came and collected the same. P.W.3-J.K. Sen is the Sergeant Major. He has proved the ballistic report of the seized arms prepared by him. P.W.4-R.B. Nanhe is the then officer-in-charge of Sadar Police Station, Hazaribagh and he has proved the written report. He has also corroborated the averments made in the F.I.R. and deposed that the accused-revision petitioner was holding a revolver in his hand and the P.W.4 arrested the accused -revision petitioner and recovered the country made revolver of seven chambers containing one empty cartridge. P.W.5 -Rampati Singh, P.W.6 -Ram Narayan Singh and P.W.7 -Krishna Kumar Ray all have proved the recovery of the arms from the possession of the accused-revision petitioner. P.W.5 -Rampati Singh, in paragraph no.6 of his deposition has stated that the revolver was recovered from the pocket of the accused-revision petitioner during the time of search whereas, the P.W.7 -Krishna Kumar Ray, at paragraph no.7 of his deposition has stated that at the time of seizure, the accused -revision petitioner was holding the revolver in his right hand. P.W.8 -Satya Deo Singh is the Investigation Officer of the case. P.W.8 -Satya Deo Singh is the Investigation Officer of the case. 5. The learned trial court after considering the evidence in the record convicted and sentenced the accused-revision petitioner for the offences punishable under sections 25 (1-b) and 26 of the Arms Act. The learned appellate court after independent appreciation of the evidence in the record held that the conviction for the offence punishable under section 25 (1-b) of the Arms Act is not proper and acquitted the accused-revision petitioner of the charge for the offence punishable under section 25 (1-b) of the Arms Act but confirmed the conviction and sentence of the accused-revision petitioner for the offence punishable under section 26 of the Arms Act. 6. Mr. Pandey Neeraj Rai, the learned counsel for the petitioner submitted that in the absence of any evidence that the accused-revision petitioner was aware of the fact that the raid was to be conducted by the police and in order to conceal the fire arms from the raiding party, the accused- revision petitioner concealed the arms, the learned appellate court ought not have confirmed the conviction of the accused-revision petitioner for the offence punishable under section 26 of the arms act. The learned counsel for the petitioner relied upon the Judgment of Patna High Court in the case of Chandan Sonkar Vs. State of Bihar, (1997) 3 Crimes(HC) 338 wherein the Hon''ble Single Judge of Patna High Court has held as under in paragraph no.10:- " 10. In the instant case, the only finding recorded by the learned Sessions Judge in paragraph 17 of the judgment is as follows: "Furhter on consideration of the materials on record, I find and hold that the manner in which the firearms and ammunitions were kept concealed by the accused shows that there was the intention that such concealment of unlicensed firearms and ammunitions may not be known to any public servant. Hence, the charge under Sec. 26(1) of the Arms Act is also established against the accused Chandan Sonkar." The learned Sessions Judge has not referred any evidence or material in his judgment, which was available on record for coming to this finding that the concealment was with the intention that such concealment may not come to the knowledge of any public servant. I myself analysed the evidence of the prosecution witnesses and found that it has not come in the evidence that the appellant was aware of the fact that a raid to be conducted by the police and in order to conceal the firearms from the raiding party the appellant concealed the said arms. In absence of such evidence, the conviction of the appellant under Sec. 26(1) of the Arms Act is not justified. As stated above, the only allegation is that firearms were found in possession of the appellant, which was wrapped in a cloth and was kept beneath the cot and the sofa. This itself is not sufficient to come to an inference that the concealment of the arms was with the intention that it, may not be known to the public servant. The conviction of the appellant under Sec. 26 (1) of the Arms Act, in my opinion, cannot be sustained in law and is liable to be set aside." Mr. Pandey Neeraj Rai, the learned counsel for the revision petitioner further relied upon the Judgment of Hon''ble Patna High Court in the case of Gholtu Modi & Others. Vs. State of Bihar, (1986) CriLJ 1031 wherein in paragraph no.9 the Hon''ble Patna High Court has held as under :- "9. It is the case of the prosecution that the police party while getting back from the patrolling duty had seen the accused persons in the said house near a Railway Crossing. The house was still under construction and was only half built and at the back of the house, there is open field. Both the counsels for the appellants have rightly submitted that in any view that place cannot be described as a lonely one, inasmuch as the time given was about 4 to 4.30 A.M., which also cannot be said to be an assemblage at an odd hour of night. Apart from it, the two independent witnesses did not support the prosecution version. Mr. Laik while canvassing the case of appellant Gholtu Modi in Criminal Appeal No. 10 of 1984 (R) has further condemned the very act of investigation and, in my opinion, rightly on the ground that the informant should not have taken up the investigation in his own hand, as he may not be impartial. Mr. Laik while canvassing the case of appellant Gholtu Modi in Criminal Appeal No. 10 of 1984 (R) has further condemned the very act of investigation and, in my opinion, rightly on the ground that the informant should not have taken up the investigation in his own hand, as he may not be impartial. The informant while investigating the case, must have made strenuous efforts to collect evidence in support of his statements made before the officer-in-charge of the police station to get laurels." And submits that the P.W.8, who was a member of the raiding party which arrested the petitioner, ought not have taken up the investigation of the case in his own hands as he may not be impartial. Mr. Rai, next submits that the learned appellate court ought to have taken into consideration the evidence of the P.W.2 to the effect that he saw the revolver and the empty cartridge lying on the ground and police came and recovered the same from the ground even though he is a hostile witness and in this respect, the learned counsel relied upon the Judgment of Hon''ble Supreme Court of India in the case of Balu Sonba Shinde Vs. State of Maharashtra, (2002) 4 Crimes(SC) 200 wherein the Hon''ble Supreme Court of India in paragraph no.15 has observed as under:- " 15. It is at this juncture the prosecutor declared her a hostile witness and prayed for permission to cross-examine the witness -upon however, the leave being granted, P.W.5 totally decried the factual aspect as contained in the complaint lodged, though however, the thumb impression was admitted-while it is true declaration of a witness to be hostile does not ipso facto reject the evidence -and it is now well-settled that the portion of evidence being advantageous to the parties may be taken advantage of -but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra & Anr., (1996) 10 SCC 360 wherein this court stated: "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted." (Emphasis Supplied) 7. It is next submitted by the learned counsel for the revision petitioner that as the prosecution without any plausible explanation has not examined the only other independent seizure witness nor examined any other independent witness except the P.W.2, though the place of occurrence is a crowded place and has withheld the station diary entry from the court by not producing the same, hence the learned appellate court ought to have drawn adverse inference against the prosecution. It is further submitted by Mr. Rai that in the examination of the accused-revision petitioner under section 313 of the Code of Criminal Procedure, no question regarding the evidence to the effect that the circumstance that has come in evidence during the trial indicating any intention of him that he did any act in contravention of the provisions of the Arms Act that such act may not be known to any public servant or to any person employed or working upon an railway, aircraft, vessel, vehicle or any other means of conveyance, having been put to him, the learned appellate court ought not to have convicted for the offence punishable under section 26 of the Arms Act and ought to have acquitted the accused-revision petitioner of the said charge by giving him the benefit of doubt. Hence, it is submitted by the learned counsel for the accused-revision petitioner that the judgment and order of the learned appellate court dated 18.07.2002, passed in Criminal Appeal No. 61 of 1995 be set aside. It is next submitted that the learned appellate court casually brushed aside the major contradictions in the deposition of the P.Ws. 2, 4, 5, 7 & 8 ignoring the fact that they have stated about the fire arms being kept or held at different portion of the body by the accused -revision petitioner. 8. The learned Addl. It is next submitted that the learned appellate court casually brushed aside the major contradictions in the deposition of the P.Ws. 2, 4, 5, 7 & 8 ignoring the fact that they have stated about the fire arms being kept or held at different portion of the body by the accused -revision petitioner. 8. The learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the evidence in the record is sufficient to establish the charge for the offence punishable under section 26 of the Arms Act and the learned appellate court having rightly convicted and sentenced the accused-revision petitioner, this revision petition being without any merit be dismissed. 9. Having heard the rival submissions made at the Bar, it is profitable to refer section 26 (1) of the Arms Act which reads as under:- "26. Secret contraventions-(1) whoever does any act in contravention or any of the provisions of section 3, 4, 10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine."(Emphasis Supplied) 10. After going through the evidence of P.W.4 to P.W.8, this Court is of the considered view that the observation of the learned appellate court in paragraph no.15 of the impugned judgment that on going through the evidence of the P.W.4 to P.W.8 these witnesses have consistently stated in their statement that the accused-revision petitioner kept the revolver in his waist and when the appellant saw the police party, he kept the revolver in his hand and tried to escape is actually an error of record as already mentioned above that the P.W.5 has categorically stated that the revolver was recovered at the time of search from the pocket of the accused-revision petitioner. Further, mere possession of a firearm will by itself certainly cannot bring home a charge for the offence punishable under section 26(1) of the Arms Act as there has to be evidence in the record that the accused was in possession of the firearm in such a manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance. After carefully going through the record I find that there is no evidence in the record to establish that the accused was in possession of the firearm in such a manner as to indicate an intention that such act may not be known to any public servant or to any person as mentioned in section 26(1) of the Arms Act. 11. Under such circumstance, this Court is of the considered view that the impugned judgment passed by the learned appellate court vide judgment dated 18.07.2002 in Criminal Appeal No. 61 of 1995 is indefensible and hence is liable to be set aside. 12. Accordingly, the impugned judgment passed by the learned appellate court vide judgment dated 18.07.2002 in Criminal Appeal No. 61 of 1995 is set aside and the revision-petitioner is acquitted of the charge for the offence punishable under section 26 of the Arms Act. In view of his acquittal, the accused -revision petitioner, is discharged of the liabilities of his bail bonds. 13. In the result, this Criminal Revision is allowed. 14. Let the Lower Court Records be sent back to the court below forthwith, with a copy of this judgment.