Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 405 (JHR)

Bihari Singh v. State Of Jharkhand

2020-02-28

DEEPAK ROSHAN

body2020
JUDGMENT 1. The instant application is directed against the judgment dated 24th July, 2006 passed by the learned 1st Additional Sessions Judge, Latehar in Criminal Appeal No. 43 of 2005, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence, both dated 24th August, 2005 passed by the learned Chief Judicial Magistrate, Latehar in G.R. Case No. 10 of 2002 corresponding to T.R. No. 148 of 2005, whereby the learned trial court held the petitioners guilty for the offence under Sections 25(1-B)a, 35 of the Arms Act and acquitted them from the charge under section 26 of the Arms Act and directed them to undergo R.I. for two years with fine of Rs.500/each, has been affirmed, 2. The prosecution case, in brief, is that, on 08.01.2002, the informant proceeded for conducting raid in another case and in course of raid mission the informant received a secret information that the accused was roaming with muzzle loading gun, thereafter, search was made in the house of the accused and on search one muzzle loading gun was recovered from the bedroom of the accused. 3. Mr. J. S. Singh, learned counsel for the petitioners submit that the impugned judgment suffers from error in as much as the seizure list witness (P.Ws. 6 and 7) has categorically stated that no seizure has been made in their presence. He further submits that nothing incriminating has been seized nor any material used in gun was recovered from the place of occurrence and only one country made gun with long barrel has been recovered. He further submits that it was an obsolete gun which was being used by the accused persons as lathi. He further contended that Section 45 of the Arms Act stipulates that no provision of Arms Act shall apply in the cases mentioned in the said section. Section 45 (C) mentions about obsolete gun. He further submits that it was an obsolete gun which was being used by the accused persons as lathi. He further contended that Section 45 of the Arms Act stipulates that no provision of Arms Act shall apply in the cases mentioned in the said section. Section 45 (C) mentions about obsolete gun. He further contended that the prosecution though submitted the ballistic report before the Court and the same has been accepted, but the ballistic expert was not examined and the ballistic report has been proved by the informant himself and as such the same has caused heavy prejudice to the petitioners in the backdrop of the fact the specific claim of the petitioners are that the seized article was obsolete gun and was being used as Lathi, whereas the report of the Ballistic expert mentions about smell of explosive from the said seized article even though there was no report of any firing as such his examination was necessary and no opportunity was afforded to the petitioners to cross-examined the expert. 4. Per contra, learned Addl. P.P heavily relied upon on the impugned judgments and submits that this is a very serious offence and no leniency shall be granted by this Court. However, she further submits that in view of paragraph-6 of the counter affidavit filed by the State it appears that the petitioners are not convicted in any other case except this criminal case. A report of the Superintendent of Police, Latehar is also annexed as Annexure-A which clearly transpires that there is no other criminal antecedent of the petitioners. 5. Heard learned counsel for the petitioner and learned Addl. P.P. for the State and also perused the impugned judgments including the LCR and the report of Superintendent of Police, Latehar annexed with the counter- affidavit. 6. From the record, it appears that the seizure list witnesses had categorically admitted in their cross- examination that they had put their signatures on a blank paper and they were not present at that time of seizure. It further transpires from the report of ballistic expert that as per him there was smell of explosive coming out from the said gun. At this stage, it is pertinent to mention here that so far as seizure is concerned; the same is an admitted fact that the article has been seized from the house of the petitioners. It further transpires from the report of ballistic expert that as per him there was smell of explosive coming out from the said gun. At this stage, it is pertinent to mention here that so far as seizure is concerned; the same is an admitted fact that the article has been seized from the house of the petitioners. However, it is a specific case of the defense that the same was used as Lathi (stick). On the other hand, it is the case of the prosecution that during course of raid they got secret information and raided the house of the petitioners and seized the gun. It is not the case of the prosecution that there was any firing from that gun or for that matter there was at all any complaint of firing by anybody. 7. It is true that there is no inflexible rule that in every case where the accused person is charged under the Arms Act, the prosecution case can succeed in proving the charge only if an expert is examined. Where the direct evidence is not satisfactory or disinterested or where there is an apparent inconsistency, oral evidence can be corroborated by leading the evidence of ballistic expert. The Honble Apex Court in the case of Gurcharan Singh vs. State of Punjab reported in AIR 1963 Supreme Court 340 at para-19 has laid down the law as under: ''19. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. The State, 1950 SCR 821 : ( AIR 1953 SC 415 ). In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only it an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by postmortem note is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushotam is right in contending as a general proposition that in every case where a fire-arm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.'' 8. In the instant case since the seizure list witness has categorically admitted that they have put their signature on a blank paper and they were not present at that time of seizure and the report of ballistic expert that smell of explosive was coming out from the said gun and when no case of firing from that gun is reported, it can be inferred that the direct evidence is not satisfactory and there is an apparent inconsistency as such, oral evidence could have been corroborated by leading the evidence of ballistic expert. 9. In view of the aforesaid facts, in my considered opinion, examination of ballistic expert was necessary in this case especially when there was no report of any firing and the report of ballistic expert refers about smell of explosive which is not in consonance with the prosecution case and non- examination of the ballistic expert highly prejudices the case of the defense that the seized article was an obsolete gun and was used as ''Lathi'' (Stick) and the same does not attract any offence under the Arms Act. This aspect of the matter has not been considered by the learned trial Court as well as the learned appellate Court. 10. Needless to say that under criminal jurisprudence, the prosecution has to prove its case beyond all shadow of reasonable doubt. The learned trial Court has committed a gross error by not appreciating the fact that in the instant case examination of ballistic expert was necessary and conviction cannot be made on mere surmises and conjecture. The same error has been committed by the learned trial Court by simply relying upon the findings given by the learned trial Court. 11. The learned trial Court has committed a gross error by not appreciating the fact that in the instant case examination of ballistic expert was necessary and conviction cannot be made on mere surmises and conjecture. The same error has been committed by the learned trial Court by simply relying upon the findings given by the learned trial Court. 11. In this view of the matter, I hold that the judgment passed by the learned trial Court and upheld by the learned appellate Court suffers from manifest error and deserves to be set-aside. 12. As a result, the instant revision application is allowed and the judgment dated 24th July, 2006 passed by the learned 1st Additional Sessions Judge and the judgment dated 24th August, 2005 passed by the learned Chief Judicial Magistrate, Latehar in G.R. Case No. 10 of 2002, are hereby, set aside. 10. The petitioners shall be discharged from the liability of their bail bonds. 11. Let the lower court record be sent to the court concerned forthwith.