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2019 DIGILAW 501 (GAU)

Md. Sahab Uddin v. State of Assam

2019-04-24

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard Mr. B. Chakraborty, learned counsel appearing for and on behalf of the accused/appellant as well as Mr. D. Das, learned Addl. P.P., Assam, representing the State/respondent. 2. The prosecution case in brief is that on 29.07.2003, at about 7:45 P.M., one Maruti Van bearing Regn. No.AS-10/4143 was stopped by the police personnel at Hospital Road Tri Junction at R.K. Nagar and in the said vehicle accused Abdul Fattah, Sahab Uddin and Monjurul Hoque were found along with one factory made SBBL gun, one factory made revolver, four nos. of live cartridge, three nos. of bhujali, one knife and one piece of wire etc. On enquiry, the accused persons stated that they were proceeding towards Lala for committing dacoity. Stating all the above, Mr. Kanak Kanti Bhattacharjee, S.I. of Police of R.K. Nagar P.S., filed an ejahar and accordingly the R.K. Nagar P.S. Case No.56/2003 was registered, u/s.399 IPC, read with Section 25(1-B)(a) of the Arms Act. The police started investigation and during the course of investigation, the recovered arms and ammunitions, which were already seized, sent for expert opinion. The I.O. recorded the statement of the witnesses u/s.161 CrPC and also produced some witnesses before the Magistrate for recording their statement u/s.164 CrPC. After completion of the investigation, the I.O. filed charge sheet against all the three accused persons, named above, u/s. 399 IPC, read with Section 25(1-B)(a) of the Arms Act. 3. The case was committed by the learned CJM, Karimganj for trial before the learned Sessions Judge, Karimganj, as the offences were exclusively triable by the Court of Sessions and accordingly the Sessions Case No.33/2009 was registered. The charges were framed and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 4. During the course of trial, the prosecution examined altogether nine witnesses including the I.O. and exhibited some documents in support of their claim. The plea of the defence was of total denial and no defence witness was examined. The statement of the accused u/s.313 CrPC was recorded and after hearing the arguments, the trial Court found the accused persons not guilty u/s.399 IPC and all were acquitted from the charge. The plea of the defence was of total denial and no defence witness was examined. The statement of the accused u/s.313 CrPC was recorded and after hearing the arguments, the trial Court found the accused persons not guilty u/s.399 IPC and all were acquitted from the charge. However they were found guilty u/s. 25(1-B)(a) of the Arms Act and sentenced them to undergo rigorous imprisonment for three years with a fine of Rs.5000/- and in default of payment of fine, rigorous imprisonment for another three months. 5. Being aggrieved by the aforesaid conviction and sentence of the learned Sessions Court vide its order dated 15.09.2010, in Sessions Case No.33/2009, one of the accused/convict namely Sahab Uddin has preferred the present appeal on the grounds inter alia that the learned Court below has misread the provisions of law and the evidence on record, that the prosecution failed to make out a case with supporting and corroborating evidence to bring home the charges against the present accused/ appellant, that the learned Court below did not appreciate the evidence on its proper perspective and due application of mind and accordingly came to a perverse finding, etc. and accordingly prays for setting aside the order of conviction of the accused/appellant under the said sections of the Arms Act. 6. I have heard the learned counsel for the appellant Mr. B. Chakraborty as well as Mr. D. Das, learned Addl. P.P., Assam representing the respondent. I have also gone through the evidence on record and the perused the documents exhibited by the prosecution in support of their case. 7. PW.1 Foriz Uddin stated in his evidence that about six years ago the incident took place. He had a Maruti Van bearing Regn. No.AS-10/4143, which he purchased from one Fakrul Hasan. One Subhash Das (PW.9) was the driver of the said Maruti Van. On the day of occurrence, one person reserved the vehicle at an amount of Rs.500/- for going to Lala. In the evening, he and the driver started for Lala along with the person who hired the vehicle. Before going to the motor stand, two other persons boarded in the vehicle along with a bag. The PW.1 stated that when they reached near the R.K. Nagar Hospital, then the police took their vehicle to the Police Station and asked them to get down from the vehicle and checked them. Before going to the motor stand, two other persons boarded in the vehicle along with a bag. The PW.1 stated that when they reached near the R.K. Nagar Hospital, then the police took their vehicle to the Police Station and asked them to get down from the vehicle and checked them. After checking the bag of the passengers, one gun, one revolver, four rounds of ammunition, three nos. of bhujali, two nos. of knife, two pieces of black clothe and one telephone wire were found. The PW.1 stated that he cannot remember who was carrying the said bag. The police seized the gun, revolver and ammunition in his presence vide Ext.1 seizure list and Ext.1(1) is his signature and also other articles through Ext.2 and Ext.3. This witness stated that the accused persons confessed before the police that they were proceeding with the said arms and ammunitions in order to commit dacoity at Lala. 8. The PW.9 Subhash Das was driver of the said vehicle who has fully supported the testimony of the PW.1 that it was the accused persons who hired the vehicle and he along with PW.1 took all the accused in the aforesaid vehicle and the vehicle was reserved by them. 9. Both these witnesses have stated that accused carried a bag while travelling in the vehicle and police on checking, when it was asked about the bag, the accused persons admitted that the bag belong to them and accordingly when the bag was opened, various arms and ammunitions and other weapons as indicated above were recovered from the bag and upon asking by the police, in presence of PW.1 and PW.9, the accused persons also admitted that arms were carried for committing dacoity at Lala. 10. The other witnesses namely, PW.2 Gourish Chakraborty, PW.3 Rajib Das Gupta, PW.4 Byomkesh Dutta and PW.5 Digendra Paul have also supported the facts and circumstances of the case that on the day of occurrence while the vehicle driven by the PW.9 was stopped and checked by Police in front of their premises, then police recovered arms and ammunitions and weapons as stated by PW.1 and PW.9 and they also found the accused persons inside the vehicle. Thus their evidence has totally supported the search and seizure made by the police and PW.4 and PW.5 have also signed the seizure list vide Ext.1, 2 and 3. Thus their evidence has totally supported the search and seizure made by the police and PW.4 and PW.5 have also signed the seizure list vide Ext.1, 2 and 3. PW.2 and PW.3 have also given statement before the Magistrate u/s.164 CrPC, vide Ext.5 and 6. 11. From the totality of the evidence of these witnesses, the prosecution has been able to prove that the seized articles were recovered from the accused persons. The PW.6, Mohabub Hussain Laskar who is the Armourer has also given the opinion upon examination of the seized articles that M. Ext.B is the country made revolver and a serviceable firearm, M. Ext.C is the factory made live cartridge and M. Ext.D is handmade live cartridge, vide Ext.9 is his report. 12. PW.7 Ramanuj Chakraborty has however proved the statement of witnesses u/s.164 CrPC, given by the witnesses, before the Magistrate. 13. Lastly the PW.8 is the I.O. Kanti Bhusan Deb, who has stated all about the investigation and recovery of articles from the possession of the accused persons and the seizure of arms and ammunitions and other weapons from the accused persons. 14. As has been discussed above, all the witnesses have fully supported the evidence of the I.O. on all material aspects. 15. According to the learned counsel for the appellant, the prosecution has not been able to prove the fact that the seized articles were recovered from the conscious possession of the accused persons, as the bag containing articles was recovered from the dickey of the vehicle and also nothing to prove that they actually carried the said articles. Relying on a decision of this Court in 2009 (4) GLT 363 Dulal Biswas and others vs. State of Tripura, it is contended that where the prosecution failed to prove the seizure of arms and ammunitions from the possession of the accused by way of convincing evidence, the accused/appellant is entitled to benefit of doubt. 16. Further bone of contention of the appellant side is that there is no proper identification of the accused by the witnesses, as they are not known to the witnesses earlier. 17. This Court has already noted that the accused persons themselves booked the vehicle of the PW.1 and by paying advance of Rs.500/- and the vehicle was reserved solely for those persons. 17. This Court has already noted that the accused persons themselves booked the vehicle of the PW.1 and by paying advance of Rs.500/- and the vehicle was reserved solely for those persons. Both the witnesses who were along with the accused at the time of travelling has fully corroborated each other that the present accused were travelling in the vehicle and at that time they carried a bag in their hand. In view of such evidence, it can be easily inferred that it was the accused person who kept the bag at the dickey which was subsequently recovered and seized by the police, containing arms and ammunitions. In such eventuality, any other hypothesis that such bag was kept by other person can be ruled out. Further before the PW.1 and PW.9 the accused has admitted about such carrying of bag with further assertion that they are going to commit dacoity at Lala. Such a statement of the witnesses was also recorded u/s.164 CrPC, which is again stand corroborated during the course of trial. Nothing to disbelieve the statement of witnesses, who have no occasion for false implication of the accused. 18. In view of all above, there remains no any substance that nothing was recovered from the conscious possession of the accused persons and about their identification. It may be noted here save and except giving certain suggestions defence failed to scatter the evidence on every material aspect. As is evident from the impugned judgment, the learned trial Court has fully appreciated each and every aspect of the matter in its detailed judgment containing about 16 pages and there remains hardly any scope to interfere into the findings. The learned trial Court has rightly acquitted the accused persons from the charge u/s.399 IPC and convicted the accused u/s. 25(1-B)(a) of the Arms Act. 19. While maintaining the conviction under said section of law, considering the submission of learned counsel for the appellant that the matter is far back of more than 15 years, the sentence is reduced to rigorous imprisonment for one year and the fine amount will remain the same. The period of imprisonment during investigation of the case or trial, shall be set off. The accused/appellant is accordingly directed to serve the sentence. 20. Return the LCR forthwith along with a copy of judgment immediately.