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2019 DIGILAW 567 (JHR)

Nisar Ansari v. State of Jharkhand

2019-02-27

RAJESH SHANKAR

body2019
JUDGMENT : The present revision has been filed against the judgment of conviction and the order of sentence dated 13.03.2008 passed by the Judicial Magistrate, 1st Class, Hazaribagh in connection with Giddi P.S. Case No. 48 of 2003, corresponding to G.R. No. 1678 of 2003 (T.R. No. 792 of 2008) whereby the petitioner has been held guilty of the offences under Sections 25(1-B)a & 26 of the Arms Act and sentenced to undergo R.I for three years with a fine of Rs.500/- for each offence and in case of default in payment of fine, to undergo further R.I for 15 days for each fine separately, however, both the sentences have been ordered to run concurrently. Further prayer has been made for quashing the judgment dated 23.06.2008 passed by the learned Sessions Judge, Hazaribagh in Cr. Appeal No. 49 of 2008 whereby the appeal preferred by the petitioner against the judgment of conviction and the order of sentence dated 13.03.2008 passed by the Judicial Magistrate, 1st Class, Hazaribagh has been dismissed. 2. The prosecution case in brief, as per the written report of the informant (Anwar Ali Khan, Sub-Inspector of Police, the Officer-in-Charge, Giddi P.S), is that on 15.07.2003 at about 1.15 P.M, he along with other police personnel went to Village-Misrain Morha for conducting raid in connection with Muffasial P.S. Case No. 240 of 2003. When the raiding party reached near the house of Lal Mohammad at about 2 P.M, one person tried to escape, however, he was arrested in presence of the witnesses Md. Yunuf Rain and Rayo Bedia. He disclosed his name as Nisar Ansari. One country made pistol with a live cartridge was recovered from his possession. As he could not produce any document relating to the said pistol, the seizure list of the same was prepared. Thereafter, the houses of Lal Mohammad and Tabark Ansari were searched. One number plate being JH-02B-1669 was recovered from the house of Lal Mohammad. A number plate being JH-02B-1992 and a Hero Honda Motocycle being registration No. JH-01B-9499 were recovered from the house of Tabarak Ansari. One Yamha Motorcycle bearing registration No. BT-14D-4637 was also recovered from the house of Tabrak Ansari. 3. On the basis of the said report, an FIR being Giddi P.S. Case No. 48 of 2003 was registered under Sections 25(1-B)a & 26 of the Arms Act against the petitioner. One Yamha Motorcycle bearing registration No. BT-14D-4637 was also recovered from the house of Tabrak Ansari. 3. On the basis of the said report, an FIR being Giddi P.S. Case No. 48 of 2003 was registered under Sections 25(1-B)a & 26 of the Arms Act against the petitioner. The Judicial Magistrate took cognizance for the said offences against the petitioner. The charge was framed under Sections 25(1-B)a & 26 of the Arms Act against the petitioner and he was tried accordingly. 4. The Judicial Magistrate 1st Class, Hazaribagh, after going through the evidence available on record, came to a finding that the factum of seizure, effectiveness of those seized articles, place of occurrence, place of seizure and manner of occurrence were proved by the prosecution beyond all reasonable doubts, as all the eye witnesses who were the probable witnesses, have supported the case of the prosecution. 5. The learned Sessions Judge, Hazaribagh while hearing Cr. Appeal No. 49 of 2008 preferred by the petitioner, went through the evidences of the prosecution witnesses and upheld the judgment dated 13.03.2008 passed by the Judicial Magistrate, 1st Class, Hazaribagh having found no infirmity therein. 6. The learned counsel for the petitioner submits that since the seizure list witnesses i.e. P.Ws. 2 & 3 were declared hostile and P.Ws. 1, 4 & 8 were not the members of the raiding party, the alleged recovery of the pistol from the possession of the petitioner was not proved beyond the shadow of reasonable doubt. Though the investigating officer stated about the ballistic report of the seized article, however, no such report was produced by the prosecution during the trial. The sanction order regarding prosecution of the petitioner issued by the District Magistrate, Hazaribagh was also not proved in accordance with law and as such the same could not have been taken into consideration for the purpose of holding the petitioner guilty of the alleged offences. The seized article was not sealed and in absence of the same, the prosecution case cannot be believed. The learned Courts below committed illegality in passing the impugned judgments as there is no cogent evidence on record to hold the petitioner guilty of the alleged offences. 7. Per-contra, the learned A.P.P submits that the statements of the prosecution witnesses are consistent with regard to raid and seizure of country made pistol along with cartridge from the possession of the petitioner. 7. Per-contra, the learned A.P.P submits that the statements of the prosecution witnesses are consistent with regard to raid and seizure of country made pistol along with cartridge from the possession of the petitioner. Non-examination of the seizure list witnesses is not itself sufficient to falsify the entire prosecution case. 8. Heard the learned counsel for the parties and perused the lower Court records including the impugned judgments. 9. P.W.1 (Salauddin Khan, Constable) produced the pistol and cartridge as material exhibits by the order of the Sub-Inspector which were marked as Exts. 1 & 1/A respectively. P.Ws. 2 & 3 were the independent witnesses who were declared hostile. P.W.4 (Kamdev Vishwakarma) who claimed to be a member of the raiding party deposed that when the raiding party reached Village-Misrain Mora, one person tried to escape, but he was arrested by them and during the course of physical verification, one revolver loaded with .315 cartridge was recovered from his waist. P.Ws. 5, 6 & 8 also claimed to be the members of the raiding party. P.W.5 stated about the weapon as .315 revolver along with cartridge whereas P.Ws. 6 & 8 have supported the factum of recovery of the country made pistol loaded with .315 cartridges from the possession of the petitioner. They also deposed that the seizure memo of the seized article was prepared. P.W.7 (Samar Kumar Das) being the investigating officer of the case. He has deposed that a country made pistol and cartridge were recovered from the possession of the petitioner and were sent for ballistic test to the Sergeant Major, Hazaribagh, who reported that the same was functional and thereafter he obtained sanction order from the Deputy Commissioner, which was marked as Ext.5. 10. The learned counsel for the petitioner puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Amarjit Singh @ Babbu Vs. State of Punjab reported in 1995 Supp (3) SCC 217 wherein it has been held as under:- “5. According to the learned counsel though this weapon was seized on 27-6-1990 but was tested by PW 4 only on 28-8-1990 i.e. after about 2 months and there is absolutely no explanation for the delay in testing the weapon. The second infirmity pointed out by the learned counsel is that PW 3 after seizing the weapon never sealed the weapon at the spot. The second infirmity pointed out by the learned counsel is that PW 3 after seizing the weapon never sealed the weapon at the spot. The third infirmity pointed out is that the Sub-Inspector of Police instead of sealing the weapon handed over it to one ChhabraChunilal who had not been examined and who according to PW 3 used to visit the police station. The fourth infirmity is that Exs. P-2 and P-3 admittedly have not been sent to the armoury. 7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.” 11. In the aforesaid case, the Hon’ble Supreme Court has specifically held that the non-sealing of the revolver at the spot is a serious infirmity as in such a situation the possibility of tampering with the weapon cannot be ruled out. 12. The learned counsel for the petitioner further puts reliance on a judgment of a Bench of this Court rendered in the case of Bhuli Mian Vs. State of Jharkhand (Criminal Revision No. 861 of 2005) wherein it has been held as under:- “7. It appears from the oral evidence that most of the witnesses including the seizure list witness have not supported the prosecution case and have thus been declared hostile. The prosecution rests upon the evidence of P.W. 9 who had disclosed about the arrest of the petitioner on secret information and recovery of the gun and cartridges from his possession. It appears from the oral evidence that most of the witnesses including the seizure list witness have not supported the prosecution case and have thus been declared hostile. The prosecution rests upon the evidence of P.W. 9 who had disclosed about the arrest of the petitioner on secret information and recovery of the gun and cartridges from his possession. The I.O. has been examined as P.W. 5 who had merely obtained the ballistic report as well as the sanction report and thereafter submitted charge-sheet. The report of the expert was not properly proved as the Sergeant Major was not examined. It also appears that no independent witness had come forward to support the case of the prosecution and the so called independent witnesses who are the seizure list witnesses have not supported the seizure leading to they being declared hostile by the prosecution. The seized gun was also not kept in a sealed cover which creates a grave doubt on the ballistic report also coupled with the fact that the Sergeant Major was not examined by the prosecution.” 13. In the present case also, P.W.1 stated that the seized pistol was not sealed. The seizure list witnesses were also not examined. The independent witnesses were declared hostile. Though the report of the Sergeant Major was not proved by producing him as a witness. The report of the Sergeant Major was not marked as an exhibit, yet the learned Courts below accepted the said report merely on the statement of P.W.7. Though P.Ws. 5, 6 & 8 claimed that they were the members of the raiding party, yet they specifically stated that they did not make their signatures on the seizure list or on any other document relating to the raid, which creates reasonable doubt in the factum of seizure. Thus, there is serious infirmity in the case of the prosecution for which the petitioner is entitled to be given the benefit of doubt. 14. In view of the aforesaid factual and legal position, the impugned judgment of conviction and the order of sentence dated 13.03.2008 passed by the Judicial Magistrate, 1st Class, Hazaribagh in connection with Giddi P.S. Case No. 48 of 2003, corresponding to G.R. No. 1678 of 2003 (T.R. No. 792 of 2008) as well as the impugned judgment dated 23.06.2008 passed by the learned Sessions Judge, Hazaribagh in Cr. Appeal No. 49 of 2008 are hereby set aside. 15. The present revision is accordingly allowed. The petitioner, who is on bail, is discharged from the liability of his bail-bond furnished in this case.