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2022 DIGILAW 1071 (JHR)

Umesh Singh v. State of Jharkhand

2022-08-29

DEEPAK ROSHAN

body2022
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant Revision application is directed against the judgment dated 22.02.2003 passed by learned 6th Additional District and Session Judge, Palamau in Criminal Appeal No. 148 of 1999, whereby the learned appellate court has dismissed the appeal and confirmed the judgment of conviction dated 30.11.1999 with modification in sentence passed by Judicial Magistrate, 1st Class, Palamau Daltonganj whereby the Petitioner was found guilty and convicted under section 25(1-B)a/35 of Arms Act and was sentenced to undergo R.I. for 3 years in G.R. Case 1333/1998. The Appellate Court while confirming the judgment of conviction modified the sentence to the extent that the petitioner was directed to undergo R.I. for one year and it was further directed that the period for which accused person had undergone custody be adjusted in sentence. 3. The prosecution case in short is that on 13.11.1998 at about 8:30 pm the informant Sachindra Kumar Jha, Officer In-charge, Chhatarpur Police Station made his self-recorded statement alleging therein that at about 8:00 p.m. he got confidential information that in village Kawal some persons have assembled and making preparation to commit dacoity. It is further alleged that during search one fire arm was recovered from the possession of Jagan Mushar and from another accused, Fokan Mushar a chura and one live cartridge was recovered. It is further alleged that nothing was recovered from the possession of Kunwar Mushar, Kamlesh Baitha and Umesh Singh, but it is alleged that they were associates of accused persons from whom arms were recovered and they were planning for dacoity. Further, articles were seized by the police and accordingly seizure list was prepared in presence of witnesses namely Mandip Paswan and Chandradip Paswan. On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted. 4. Ms. On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally the he was convicted. 4. Ms. Apurva Pathak, learned Amicus submits that the ingredients of Section 35 of the Arms act, are not fulfilled, inasmuch as, the prosecution is required to prove that the accused has satisfied both the essentials; first that the arms or ammunition shall be found in any premise, vehicle or other place in the joint occupation or under the joint control of several persons and second that each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place. Learned amicus contended that the prosecution has not proved by leading evidence that this petitioner was having knowledge that the arms were kept in the place of occurrence. Learned Amicus further referred the case of Akhilesh Singh vs. State of Jharkhand, 2013 SCC Online Jhar 994, wherein this Court has held as under: “13.......It is evident from the plain reading of this section that the question of being aware of existence of arms and ammunitions in the premises from where they had been recovered, comes for consideration only when it is alleged that the said premises was in joint occupation or under the joint control of such person. If there is nothing on the record to suggest that the premises, vehicle or place where the recovery was made, was in joint possession or joint control of such person, the question of second ingredient, i.e. awareness of existence of arms and ammunitions in the premises, vehicle or place, does not come into picture at all. This clearly leads to the conclusion that if there is nothing to show that the person was in joint occupation or joint control over the premises, vehicle or place from where the recovery of the arms and ammunition was made, he cannot be made liable for the offences under the Arms Act with the help of Section 35 of the said Act, even if he was aware of the existence of the arms or ammunition at that premises, vehicle or place. I find sufficient force in the submission of the learned senior counsel for the petitioner that the very first ingredient is missing in the case of the petitioner and accordingly, no offence can be said to be made out against the petitioner under any of the provisions of the Arms Act, even though it is alleged that the petitioner was aware of the existence of the arms at that particular premises.” Learned Amicus lastly contended that the prosecution did not take any interest to get the independent witness examination and consequently no independent witness has been examined in this case except police party; as such conviction should be set aside. Mr. Anil Kumar, learned counsel for the petitioner submits that without any plausible evidence, the petitioner has been convicted and sent to custody and he also remained in custody for about 205 days. Learned counsel further contended that the arm has not been recovered from the conscious possession of the petitioner; thus the conviction is bad in the eye of law. 5. Learned APP opposed the prayer made by the petitioner and submits that there is no error in the findings given by the courts below, as such, the conviction cannot be set aside. 6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below and the LCR, it appears that the arms were recovered from the field of one Maheswar Yadav where this petitioner was taking drinks along with other accused persons; however there was no deposition to the extent that the petitioner was having full knowledge of the arms which was found at the place of occurrence and/or he was in any way connected with the property where the arms were recovered. In the case of Akhilesh Singh (Supra) it has been held that “the question of being aware of existence of arms and ammunitions in the premises from where they had been recovered, comes for consideration only when it is alleged that the said premises was in joint occupation or under the joint control of such person.” In the case at hand there is nothing on record or even any deposition to the effect that the petitioner was in the joint possession of place of occurrence; nor it has been proved that the petitioner was aware of existence of arms. Thus; none of the ingredients of Section 35 of the Arms act, has been fulfilled. 7. It further transpires that though there were two independent witnesses; however none of them has been examined which otherwise makes the seizure doubtful. In the case of Gian Chand and Others vs. State of Haryana, (2013) 14 SCC 420 , the Hon’ble Apex Court held that evidence of police witnesses need to be subjected to strict scrutiny. It was also observed that their evidence cannot be discarded merely on the ground that they belong to police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particularly should be sought. 8. In the instant case, no serious attempt was made to get the independent witness examination. In the case of Digamber Vaishnav vs. State of Chhattisgarh, (2019) 4 SCC 522 a three-judge bench of the Hon’ble Apex Court observed that no attempt had been made by the prosecution to examine the witnesses who were present at the scene of the incident at the relevant time and who had first seen the deceased persons and thus held that the best evidence had been withheld. Further, In the case of Mohanlal Shamji Soni vs. Union of India and Another, 1991 Supp. (1) SCC 271, the Hon’ble Apex Court has held that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. 9. In view of the aforesaid facts and circumstances of the case, petitioner needs benefit of doubt, it cannot be said that the charge has been proved beyond all shadow of reasonable doubt. 10. Consequently, the judgment dated 22.02.2003 passed in Criminal Appeal No. 148 of 1999 by learned 6th Additional District and Session Judge, Palamau, and the judgment of conviction and sentence dated 30.11.1999 passed by Judicial Magistrate, 1st Class, Palamau Daltonganj in G.R. Case 1333/1998, is hereby, quashed and set aside. 11. The petitioner shall be discharged from the liability of his bail bonds. 12. As a result, the instant criminal revision application, is hereby, allowed and disposed of. 13. The Secretary, Jharkhand High Court Legal Services Committee shall pay Rs. 11. The petitioner shall be discharged from the liability of his bail bonds. 12. As a result, the instant criminal revision application, is hereby, allowed and disposed of. 13. The Secretary, Jharkhand High Court Legal Services Committee shall pay Rs. 5,000/- per appearance as professional fee to the learned Amicus, subject to the maximum ceiling as per the existing guidelines on submission of her bills. 14. Let a copy of this order be communicated to the court below, Secretary, Jharkhand High Court Legal Services Committee and also to the petitioner through the officer-in-charge of concerned police station. 15. Let the lower court record be sent to the court concerned forthwith.