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2019 DIGILAW 655 (JHR)

Bittan Turi v. State of Jharkhand

2019-03-07

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present appeal is directed against the judgment of conviction and order of sentence dated 05.12.2005 passed by the Additional Sessions Judge, Fast Track Court No. V, Deoghar in Sessions Case No.326 of 2003 arising out of G.R Case No. 106 of 2003, corresponding to Deoghar P.S Case no.36 of 2003, whereby the appellant has been convicted under section 25(1-B) of the Arms Act and sentenced to undergo rigorous imprisonment for three years with fine of Rs.2000/-. He has further been convicted under Sections 447 and 504 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months under Section 447 of the Indian Penal Code and rigorous imprisonment for two years under Section 504 of the Indian Penal Code and in default of making payment of fine to undergo further imprisonment for three months, however, all the sentences have been ordered to run concurrently. 2. The prosecution case, as recorded in the fardbeyan of the informant-Basudeo Turi, in brief, is that on 18.02.2003 at about 6:30 p.m. when the informant was teaching his children at his house, the appellant along with one Mannu Rout and two others came to his house and after entering the Verandah started abusing him mentioning that since he was in jail under the Arms Act instituted by the informant, he will kill him. The appellant took out pistol from his waist and fired on him with an intention to kill. The pistol was fired from a close range and seeing that, his family members got nervous and caught hold the appellant. The informant took out a Hasua and snatched the pistol from the appellant with the help of his family members which was subsequently produced before the police. It is further stated that the appellant was in jail in connection with Deoghar P.S Case No. 201 of 2002 dated 12.10.2002 u/s 341, 323, 307/34 of IPC and 25(1-B), 26, 27 and 35 of Arms Act and had come out on bail on that day. 3. On the basis of the fardbeyan, an F.I.R. being Deoghar P.S Case No. 36 of 2003 was lodged u/s 447, 307, 504/34 of IPC and 25(1-B), 27 and 35 of Arms Act. The charge-sheet was submitted against the appellant and Mannu Rout u/s 447, 307, 504/34 of IPC and Sections 25(1-B), 27 and 35 of Arms Act. 3. On the basis of the fardbeyan, an F.I.R. being Deoghar P.S Case No. 36 of 2003 was lodged u/s 447, 307, 504/34 of IPC and 25(1-B), 27 and 35 of Arms Act. The charge-sheet was submitted against the appellant and Mannu Rout u/s 447, 307, 504/34 of IPC and Sections 25(1-B), 27 and 35 of Arms Act. The charges were framed against the accused persons u/s 447/34, 307/34, 504/34 of IPC and 25(1-B), 27 and 35 of the Arms Act on 27.11.2004. 4. In order to prove its case, the prosecution examined altogether seven witnesses. P.W. 1- Sunil Turi P.W. 2 Naresh Turi, P.W. 3 - Baldeo Turi @ Dhokal Turi, P.W.4- Anand Jee Ambedkar, P.W. 5 Kalyan Jee Ambedkar, P.W. 6 Basudeo Turi, P.W. 7 Anil Oraon. 5. The learned counsel for the appellant has assailed the impugned judgment on the ground that the prosecution has not been able to prove its case beyond all reasonable doubts. All the witnesses of the occurrence are the related witnesses and as such their evidence could not have been relied upon for conviction of the appellant. It is further submitted that the learned trial court while convicting the appellant has not considered the fact that neither the pistol was recovered from the possession of the appellant nor P.W. 6-informant or any of his family members sustained any injury, rather the appellant was assaulted by the informant and to save his skin, brought him before the police station and falsely implicated him with the help of police. The trial court though found the evidence of P.Ws. 1 to 3 not reliable, yet convicted the appellant. 6. Per contra, the learned APP appearing on behalf of the State submits that the impugned judgment of conviction and order of sentence has been passed having regard to the consistent version of the prosecution witnesses relating to criminal trespass and possession of fire arms. Merely by the fact that the witnesses have made some improvement in their evidence, the same cannot be a ground to brush aside the entire case of the prosecution. 7. Heard the learned counsel for the appellant and the learned APP as well as also perused the record of the case. 8. Merely by the fact that the witnesses have made some improvement in their evidence, the same cannot be a ground to brush aside the entire case of the prosecution. 7. Heard the learned counsel for the appellant and the learned APP as well as also perused the record of the case. 8. To appreciate the contention of the learned counsel for the parties, I have perused the evidence of the prosecution witnesses to analyse as to whether there is sufficient evidence against the appellant for convicting him u/s 447, 504 and section 25(1-B) of the Arms Act. 9. P.W. 1-Sunil Turi deposed that on 18.02.2003 at about 6.30-7.00 pm, he heard noise of quarrel from the house of Basudeo Turi. When he reached the house of Basudeo Turi, he saw that Bittan Turi fired upon the informant which crossed by his side. He alongwith other family members apprehended the appellant and took him to the police station. The shirt and chappal of the appellant were left there. P.W. 2 - Naresh Turi deposed that on 18.02.2003 at about 6.30-7.00 p.m. upon hearing some noise, he reached the house of the informant and saw some altercation between the appellant and the informant. Accused Mannu was also present there. The appellant fired upon the informant which crossed close to the ear of the informant and thus he was safe. Thereafter the appellant was apprehended and the informant took the pistol to the police station. P.W. 3 Baldeo Turi @ Dhokal Turi deposed that on 18.02.2003 at about 6.30 p.m. upon hearing noise, he went to the house of Basudeo and saw the altercation between the appellant and the informant. Thereafter, the appellant took out revolver and fired on Basudeo which passed through quite close to his ear. They apprehended the appellant and handed over him to the police with the pistol. P.W. 4 and 5 are the sons of the informant who are hearsay witnesses on the point of occurrence. P.W. 6 Basudeo Turi is the informant of the case. He supported the version of the fardbeyan. He deposed that when Bittan Turi and Mannu Rout entered his Varandah, he raised hulla due to which his wife, mother and small children also started raising hulla. Bittan Turi abused and threatened him and thereafter fired on by his pistol after taking out the same from his waist. He supported the version of the fardbeyan. He deposed that when Bittan Turi and Mannu Rout entered his Varandah, he raised hulla due to which his wife, mother and small children also started raising hulla. Bittan Turi abused and threatened him and thereafter fired on by his pistol after taking out the same from his waist. As he fell down, the shot fired by Bittan Turi cross by his side and he was saved. He found a ‘Hansua’ by which he tried to save himself. He alongwith his family members apprehended Bittan Turi and snatched the revolver from his hands and handed over the same to the police. He identified his signature on the seizure list of the pistol which has been marked as exhibit- 2. He also identified the signature of seizure witness namely Kalyan Jee Ambedkar which has been marked as exhibit-2/1. In cross examination, he deposed that he was in jail for about 13 days in a counter case filed by the appellant. P.W. 7 Anil Oraon is the investigating officer of the case. He proved the production cum seizure list of a country made pistol which has been marked as exhibit-4.He explained that the place of occurrence was the Verandah of the informant’s house. He also seized one Hansua from the place of occurrence which was marked as exhibit-5. 10. On perusal of the depositions of P.Ws.3 and 6, it appears that sometimes they have stated regarding seizure of weapon as ‘revolver’ sometimes as ‘pistol’. However, the P.W.7 (Investigating Officer) has proved the production-cum-seizure list regarding a country made pistol. Thus, it does not materially affect the nature of the weapon seized. 11. Thus, all the witnesses appear to be consistent to the extent that the appellant went to the house of the informant with a pistol and an altercation between the appellant and the informant took place at the Verandah of the informant. Somehow the appellant was caught by the informant and his family members and the pistol was also snatched from him which was later on handed over to the police. P.W.7 who investigated the case also proved the seizure of the pistol. Somehow the appellant was caught by the informant and his family members and the pistol was also snatched from him which was later on handed over to the police. P.W.7 who investigated the case also proved the seizure of the pistol. He also deposed that from the place of occurrence i.e Verandah of the informant, he had recovered one pair of shoe and torn shirt of the appellant which was seized and marked as Ext.5 and a seizure list was prepared with regard to the country made pistol, which was marked as exhibit-4. He further proved the report of the Sargent Major as identification mark ‘X’ wherein it was reported that the pistol was in a working condition. Thus, the offence u/s 447, 504 of IPC and section 25(1-B) of the Arms Act has sufficiently been proved against the appellant. 12. The learned counsel for appellant relied upon by the judgment of the Hon’ble Supreme Court rendered in the case of Mohmed Rafiq Abdul Rahim Shaikh Vs. State of Gujarat, reported in (2018) 10 SCC 501 , wherein it has been held that the first precondition for an offence under section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possesses the firearm before it can be said to constitute an offence and secondly that the possession need not be physical possession but can be constructive having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. The Hon’ble Apex court took into consideration that the prosecution had failed to establish that the appellant no.4 of the said case had the knowledge and consciousness of the firearms and ammunition found in his house since he was in custody before the raid took place. 13. However in the present case, the prosecution has sufficiently proved that the appellant was in possession of the fire arm while he was caught by the informant and his family members. It has also been proved that there was some altercation between the appellant and the informant. Thus, fact of the present case is entirely different from the case cited by the learned counsel for the appellant and as such the same would not be applicable in the case of the appellant in any manner. 14. It has also been proved that there was some altercation between the appellant and the informant. Thus, fact of the present case is entirely different from the case cited by the learned counsel for the appellant and as such the same would not be applicable in the case of the appellant in any manner. 14. Under the aforesaid facts and circumstances, I do not find any infirmity in the judgment of conviction dated 5th December, 2005 passed by the learned court below. 15. However, so far as the quantum of sentence is concerned, learned counsel for the appellant submits that the appellant has remained in judicial custody for about two years and as such the sentence so awarded by the learned Trial Court may suitably be reduced considering the fact that he has been facing the rigours of the criminal case since 2003. 16. The appellant has been awarded sentence by the learned Trial Court to undergo rigorous imprisonment for three years under Section 25(1-B) of the Arms Act wherein the minimum sentence prescribed is one year and the appellant has already undergone the minimum period of sentence as prescribed under Section 25(1-B) of the Arms Act. 17. Considering the facts and circumstances, the sentence of three years rigorous imprisonment awarded to the appellant by the learned Trial Court under Section 25(1-B) of the Arms Act is reduced to the period already undergone by him in the present case. So far as the sentence for three months rigorous imprisonment awarded to the appellant under Section 447 of the Indian Penal Code is concerned, he has already undergone and further so far as the sentence for two years rigorous imprisonment under Section 504 of the Indian Penal code is concerned, the same is also modified to the extent of the period already undergone by him 18. Therefore, the appellant is directed to be released from the judicial custody forthwith in connection with the present case, if not wanted in any other case. 19. This appeal is, partly allowed on the point of sentence.