Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 506 (GAU)

Giren Ray @ Rinku Das v. State of Assam

2019-04-25

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard Mr. P. Kataki, 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 16.07.2015, SI Dewan Wahidul Islam lodged an FIR in the Bijni P.S. stating that based on secret information on 15.0.7.2015 at about 10:30 p.m., a joint operation has been conducted by the Bijni Police along with one section of CRPF in village No.2 Dongagaon and apprehended one Giren Ray (present appellant) and recovered extorted money Rs.37,000/- from his possession. The accused person on further interrogation had disclosed regarding keeping of Rs.3,05,000/- with one Dipu Ray of Bijni Town and he guided the search party to the house of said Dipu Ray and Rs.3,05,000/- was recovered from his possession and seized the same. On further interrogation the accused disclosed about keeping of one sophisticated arms with ammunitions and he led the search party to the house of one Biren Narzary of village Chandmari under Sarbhog P.S. of Barpeta District and search was conducted and during search, on being shown by accused Giren Ray, one AK-56 rifle with 3 nos. of magazine, extortion note of ULFA(S) and other accessories which were kept concealed under the floor of a room in the house of Biren Narzary were recorded and seized. 3. On the basis of said FIR, the Bijni P.S. Case No.219/15 was registered, u/s.120(B)/121(A)/122/384 of the IPC, read with Section 25(1-A) of the Arms Act and u/s.10/13 of the UA(P) Act. The police started investigation and after completion of the investigation, the I.O. submitted charge sheet against three accused persons, namely Giren Ray @ Rinku Das, Dipu Ray @ Pradip Ray and Raju Das @ Raju Sarania, u/s.120(B)/121(A)/122/384 of the IPC, read with Section 25(1-A) of the Arms Act. 4. The case was committed by the learned SDJM (M), Bijni for trial before the learned Sessions Judge, Chirang at Kajalgaon, as the offences were exclusively triable by the Court of Sessions and accordingly the Sessions Case No.267(B)/2015 was registered. After hearing the parties and perusing the relevant materials, charges were framed against the accused persons u/s.120(B)/384 of the IPC, read with Section 25(1-A) of the Arms Act and explained to the accused, to which they pleaded not guilty and claimed to be tried. 5. After hearing the parties and perusing the relevant materials, charges were framed against the accused persons u/s.120(B)/384 of the IPC, read with Section 25(1-A) of the Arms Act and explained to the accused, to which they pleaded not guilty and claimed to be tried. 5. During the course of trial, the prosecution examined altogether 12 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 Giren Ray @ Rinku Das and Dipu Ray @ Pradip Ray was recoreed u/s.313 CrPC, whereas statement u/s.313 CrPC in respect of accused Raju Ray @ Raju Sarania was dispensed with as no incriminating materials could be found against him. After hearing the arguments, the learned trial Court found the present accused/appellant Giren Ray @ Rinku Das not guilty u/s.120(B)/384 of the IPC and acquitted from those charges, whereas he was found guilty u/s. 25(1-A) of the Arms Act and sentenced to under R.I. for seven years and also to pay fine of Rs.5,000/-, in default R.I. for three months, vide order 31.08.2016. 6. Being aggrieved by the aforesaid conviction and sentence of the learned Sessions Court, the accused/convict has preferred the present appeal on the grounds inter alia that the evidence on record does not warrant conviction of the appellant u/s. 25(1-A) of the Arms Act, there is no evidence against the accused/appellant that he was found to be in possession of any prohibited arms and ammunitions and therefore the conviction is bad in law and liable to be set aside, etc. and accordingly prays for setting aside the order of conviction of the accused/appellant under the said section of the Arms Act. 7. I have heard the learned counsel for the appellant Mr. P. Kataki 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. 8. 7. I have heard the learned counsel for the appellant Mr. P. Kataki 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. 8. PW.1 Dewan Wahidul Islam stated in his evidence that on 15.0.7.2015 he was posted at Bijni Police Station and on that day at about 10:00 p.m., received information from the source that one Giren Ray of village Dongagaon under Bijni P.S. had extorted money from different persons of the locality for the banned militant outfit ULFA (Swadhin) and kept the money concealed at different places along with weapons. After receiving the information, he made the G.D. Entry No.512, dtd.15.7.15 and informed his superior officers including the S.P., Chirang and thereafter under the leadership of the SDPO, Bijni along with CRPF personnel proceeded to village Dongagaon and launched search operation in the house of accused Giren Ray. They were accompanied by the local Gaonburha and two other witnesses. During the search, they recovered Rs.37,000/- in cash from a steel almirah-cum-showcase kept in the house of Giren Ray. During interrogation accused Giren Ray admitted that an amount of Rs.3 lacs had kept in the house of co-accused Dipu Ray of Bijni Town and accused Giren Ray led the police to there and recovered Rs.3 lacs. On further interrogation the accused Giren Ray confessed that he collected some weapons and those have kept concealed in the house of one Biren Narzary of Sarbhog and on being led by Giren Ray, they dug out the mud floor of a room and found arms and ammunition which had been kept there concealed, wrapped in polythene sheet. They found one AK-56 rifle, one number of recalling spring, one side plate, two numbers of clearing brush used for cleaning the weapons, two numbers of body side lock rifle ceiling, two numbers of ammunition boxes, two numbers of string key, two numbers of key box, etc. and seized, vide Ext.3 in presence of witnesses. 9. They found one AK-56 rifle, one number of recalling spring, one side plate, two numbers of clearing brush used for cleaning the weapons, two numbers of body side lock rifle ceiling, two numbers of ammunition boxes, two numbers of string key, two numbers of key box, etc. and seized, vide Ext.3 in presence of witnesses. 9. PW.4 Baharul Islam was a police constable at Bijni P.S. and PW.6 is Naba Kanta Ray was the PSO of the SDPO, Bijni, supporting PW.1 have deposed in their evidence that they accompanied the police force while the PW.1 recovered the extorted money from the house of Giren Ray vide Ext.2 and the arms and ammunitions were recovered from the house of Biren Narzary, being led by accused Giren Ray in their presence vide Ext.3 seizure list and the PW.4 put his signature in both the seizure lists and Ext.2(3) and Ext.3(3) are his signatures. 10. PW.2 Surjya Ray is the Gaonburha of village No.2 Dongagaon deposed in his evidence that on 15.07.2015, at about 3:30 p.m., the police from Bijni P.S. came to his house and asked him to show the house of Giren Ray and accordingly he went to the house of Giren Ray. The police entered into the house of Giren Ray who was present in the house. He deposed that he cannot say whether the police has recovered anything or not. Police obtained his signature on a paper vide Ext.1 and Ext.1(3) is his signature. This witness was declared hostile by the prosecution. 11. PW.3 Debananda Ray is the elder brother of accused Giren Ray and he was sitting outside the house of Giren Ray when police searched their house and therefore he cannot say what police had done inside and what was recovered from their house. PW.7 Shiva Kanta Ray is the maternal uncle of accused co-accused Dipu Ray @ Pradip Ray, who stated that he was called by police to the house of Dipu Ray when search was made by them and at that time he was sitting outside the house. Later on he was called to the police station and obtained his signature on Ext.2 and Ext.2(4) is his signature. Both the PW.3 and PW.7 were declared hostile by the prosecution. 12. PW.8 Gopinath Ray also stated in the same lines as stated by PW.7. Later on he was called to the police station and obtained his signature on Ext.2 and Ext.2(4) is his signature. Both the PW.3 and PW.7 were declared hostile by the prosecution. 12. PW.8 Gopinath Ray also stated in the same lines as stated by PW.7. He stated that on the date of occurrence the police called him and his father to the house of Dipu Ray. Police entered the house of Dipu Ray and the PW.8 was sitting in the courtyard of Dipu Ray. After sometime, police came out from the house of Dipu Ray and took away Dipu Ray with them. Later on he came to know that police recovered money from the house of accused Dipu Ray and took his signature vide Ext.2(5). 13. PW.9 Sukra Bahadur Lama is the armourer who examined (1) one AK rifle with Regn. No.7230758 marked-A, (2) AK-45 ammunition 103 marked-B, (3) .45 live ammunition, (4) three numbers of magazines i/c. with Bijni P.S. Case No.219/15 and submitted his report vide Ext.9 and Ext.9(1) is his signature. 14. PW.5 Nilkanta Ray is a neighour of the accused Giren Ray and he has no knowledge about search and seizure. He just put his signature as a witness of search and seizure, as instructed by police and Ext.1(5) is his signature. 15. PW.10 Ira Narzary is the wife of Biren Narzary, who stated in her evidence that on 15.07.2015, at about 2/2:30 A.M., she was sleeping in her house along with her daughter and her husband stayed at Guwahati in connection with his job. At that time some persons knocked her gate and on opening of the gate, some police personnel entered inside her house. She was ordered to sit on a chair inside one room and she had no knowledge what the police had done in the other room in the western side of her house, which room always remains open. After half an hour, the police called her and showed her one bag and obtained her signature on a paper. Ext.3 is that paper and Ext.3(5) is her signature. Police got her statement recorded before the Court and Ext.9 is the statement recorded by the Court and Ext.9(1), 9(2) and 9(3) are her signatures. 16. PW.11 is the Judicial Magistrate 1st Class, Bijni, who recorded the statement of witness Ira Narzary u/s.164 CrPC. 17. PW.12 Dipak Kr. Ext.3 is that paper and Ext.3(5) is her signature. Police got her statement recorded before the Court and Ext.9 is the statement recorded by the Court and Ext.9(1), 9(2) and 9(3) are her signatures. 16. PW.11 is the Judicial Magistrate 1st Class, Bijni, who recorded the statement of witness Ira Narzary u/s.164 CrPC. 17. PW.12 Dipak Kr. Das is the I.O., who has stated all about the registration of Bijni P.S. Case No.219/15, recording of statement of witnesses, arrest of the accused persons, search and seizure and examination of the seized arms and ammunition by the armourer and collection of report and after completion of investigation, the PW.12 submitted the charge sheet vide Ext.11 and Ext.11(1) is his signature. 18. The learned counsel for the appellant Mr. P. Kataki has primarily attacked the prosecution case on the ground that the prosecution has claimed to have recovered the arms and ammunition at the instance of the accused person but no such statement of the accused persons was recorded to prove the leading to discovery as per requirement of Section 27 of the Indian Evidence Act, 1872 and hence the case is bad in law. It is also contended that apart from the police officials, the other witnesses have not stated about the recovery of such arms and ammunition. 19. Reliance has been placed to the decision in Rajiv Phukan and another vs. State of Assam, reported in 2009 (2) GLT 414, wherein it has been held that recording of statement of the accused towards such recovery is necessary to prove such recovery under Section 27 of the Evidence Act. 20. The learned counsel for the State respondent Mr. D. Das has however submitted that from the totality of the evidence of police officer as well as other witnesses on record, recovery of arms and ammunition, as stated by the accused person stands proved and only because of non-recording to disclosure statement of the accused person, the case cannot be thwarted. 21. I have considered the rival submission of both the parties and also gone through the decision referred and gone through the LCR. 22. For better appreciation, let the observation of the aforesaid decision in Rajiv Phukan (Supra) is quoted below: "47. 21. I have considered the rival submission of both the parties and also gone through the decision referred and gone through the LCR. 22. For better appreciation, let the observation of the aforesaid decision in Rajiv Phukan (Supra) is quoted below: "47. Similarly, in a case under Section 27 of the Evidence Act, it is not material as to whether the statement has been recorded in the form of questions and answers or not. What is, however, necessary is that the Court must know as to what exactly the accused had stated so as to enable the Court hold as to what statement of the accused had actually led to the discovery of the fact. 48. It needs to be, however, pointed out that the discovery of fact must be subsequent to the making of the disclosure statement. Where a disclosure statement is made subsequent to the discovery of a fact, the disclosure statement cannot be proved under Section 27, for, a disclosure statement, whether it amounts to confession or not, would be relevant only when the statement precedes the discovery of fact. 49. We may pause here to point out that evidence, relating to recovery, is acceptable even when non- official witnesses do not support the recovery and make departure from the statements, claimed to have been made by them during investigation. In Antar Singh (2004 Cri LJ 1380) (supra), the Court, while dealing with the similar aspect of the case, referred to the decision, in Modan Singh v. State Of Rajasthan (1978 Cri LJ 1531), wherein it was observed, "..that where the evidence of the Investigating Officer, who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was taken in Mohd. Aslam v. State Of Maharashtra. It was held that even if panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person, who effected the recovery, would not stand vitiated." 50. Similar view was taken in Mohd. Aslam v. State Of Maharashtra. It was held that even if panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person, who effected the recovery, would not stand vitiated." 50. Notwithstanding, therefore, that in a given case, the seizure witness may turn hostile the evidence, given by the investigating Officer as regards the disclosure statement may still be believed by the Court provided; of course, that such evidence inspires confidence and in order to enable the Court to safely rely on the evidence of the Investigating Officer, it is necessary that the exact words, attributed to an accused as statement made by him be brought on record and for this purpose it is advisable to reduce into writing the disclosure statement, before any recovery is made. .. 55. From the emphasized portion of the observations made above, in Bodhraj (2002 Cri LJ 4664) (supra), it becomes clear that though the information (which the prosecution relies upon to show that the accused gave the information, which led to the discovery of a fact), should be recorded and proved but if it is not so recorded, the exact information must be adduced through evidence. Obviously, such evidence would mean oral evidence or some other evidence in the form of audio visuals or tape. Nonetheless, what clearly transpires from the decision, in Bodhraj (supra), is that even when a statement, leading to discovery of fact, has not been reduced into writing, such a statement is still admissible in evidence, though the probative value thereof would depend on the facts and circumstances of a given case. 56. Because of what have been discussed and pointed out above, we conclude that a disclosure statement, to be admissible under Section 27 of the Evidence Act, is not statutorily required to be reduced into writing, though prudence demands that such an information should be reduced into writing in order to enable the Court to know exactly as to what the accused is allegedly to have stated and the extent to which the information given by him is admissible. The reference shall stand answered accordingly". 23. The reference shall stand answered accordingly". 23. Keeping in mind the above legal pronouncement on the provision of Section 27 of the Evidence Act, if we take note of the evidence of the present case we will find that although the prosecution has relied upon the leading to recovery of arms and ammunition at the instance of the accused person, but obviously there is no disclosure statement of accused to this effect. However three police officials i.e. PW.1, PW.4 and PW.6, all of them have given clear and convincing evidence that they have recovered large number of sophisticated arms and ammunition from the house of Biren Narzary, as shown by the accused person. Things to be noted that these police personnel have at odd hours proceeded to the house of accused on secret information regarding his involvement with extremist organization and dealing with arms and ammunition. Huge amount of money was recovered from the possession of the accused person which was initially suspected to be an amount collected through extortion but the same was not proved in due course of trial. But on further interrogation, the accused led the police party to the house of another person namely Biren Narzary and the witnesses including the wife of Biren Narzary has also admitted about the entry of police in their house and some recovery but however they being the relatives of the accused have not supported such recovery, although they signed the seizure list. None of these witnesses has claimed that such arms and ammunition were implanted by the police in the house of Biren Narzary and the facts remain that the accused led the police to the house of said Biren Narzary. 24. In the circumstances, although the statement of the accused was not recorded (which is not mandatory as had been held above), we cannot disbelieve and discard the evidence of three police officials who after much efforts and exercise, have recovered such arms and ammunition. There is no rule of law that no case can be succeeded only on the basis of evidence of police officials. Accordingly this Court is of the opinion that search and recovery is not vitiated as has been challenged by the appellant side. Rather recovery of such arms and ammunition at the instance of the accused/appellant is fully proved and the appellant is liable to be punished u/s. 25(1-A) of the Arms Act. Accordingly this Court is of the opinion that search and recovery is not vitiated as has been challenged by the appellant side. Rather recovery of such arms and ammunition at the instance of the accused/appellant is fully proved and the appellant is liable to be punished u/s. 25(1-A) of the Arms Act. 25. It may also be mentioned that the appellant side has also contended that such a seizure in another district is illegal and violative of Section 166(4) of the CrPC, as it was beyond the jurisdiction of the I.O. But the same submission of devoid of merit as the PW.1 has clarified in his evidence that search was made in village Chandmari under Sarabhog P.S. of Barpeta District by giving intimation to the O/C. of Sarabhog P.S. and other superior officers. Accordingly it is found that there is no violation of the provision of the CrPC, as contended. The aforesaid search was made continuously at the time while the money was recovered in pursuant to the submission made by the accused that he can shown the arms and ammunition kept in the house of Biren Narzary, such recovery was made. Nothing remains to interfere into the order of conviction. 26. Thus maintaining the conviction under the aforesaid provision of the Arms Act, considering the submission of learned counsel for the appellant that the accused is behind the bar since long, the sentence is reduced to rigorous imprisonment for five years and the fine amount will remain the same. The period of imprisonment during investigation of the case or trial etc., shall be set off. 27. Return the LCR along with a copy of judgment immediately.