Research › Search › Judgment

Patna High Court · body

2022 DIGILAW 615 (PAT)

Kapildeo Thakur v. State of Bihar

2022-07-20

A.M.BADAR

body2022
A. M. Badar, J.—By this appeal, appellant/convicted accused, Kapildeo Thakur is challenging the Judgment and order dated 15.09.2017 and 20.09.2017 passed by the learned Sessions Judge, Munger in Sessions Trial No. 228 of 2016 between the parties, thereby convicting him of the offences punishable under Sections 25(1-B)a r/w 35, 25(1-AA) r/w 35 and 26 r/w 35 of the Arms Act, 1959. For the offence punishable under Sections 25(1-B)a r/w 35 of the Arms Act, he is sentenced to suffer rigorous imprisonment of five years apart from imposition of fine of Rs.10,000/- and default sentence of simple imprisonment for three months. For the offence punishable under Sections 25(1-AA) r/w 35 of the Arms Act, the appellant is sentenced to suffer rigorous imprisonment for ten years apart from imposition of fine of Rs. 50,000/- and default sentence of simple imprisonment for six months. For the offence punishable under Sections 26 r/w 35 of the Arms Act, he is sentenced to suffer rigorous imprisonment for seven years apart from imposition of fine of Rs.10,000/- and default sentence of simple imprisonment for three months. Substantive sentences are directed to run concurrently by the learned trial court. For the sake of convenience, the appellant shall be referred to in his original capacity as “an accused”. 2. Facts leading to the prosecution of the accused projected from the police report can be summarized thus:— A. P.W. 1, Abhinav Kumar Dubey who happens to be the Station House Officer of the Muffasil Police Station, Munger on 11.08.2015 had received a secret information that illicit trade of the weapons shall be happening at the site of under construction house of Bechan Singh son of Shivdhari Singh situated at the western side of the Middle School near an area named Gaira Pahar. He took sanha entry of the information so received and along with his staff comprising of P.W. 6 Raghubans Prasad Singh Police Inspector, P.W. 3 Mahendra Rajak Head Constable and others, proceeded to village Gaira Pahar. When the police party reached at the under construction house of Bechan Singh situated near the Middle School, two persons attempted to flee away from that spot. One person managed to escape whereas another one who was holding a plastic bag in his hand came to be apprehended by the police party. Upon being asked, the said person disclosed his name as Kapildeo Thakur, i.e., the present appellant/accused. One person managed to escape whereas another one who was holding a plastic bag in his hand came to be apprehended by the police party. Upon being asked, the said person disclosed his name as Kapildeo Thakur, i.e., the present appellant/accused. B. P.W. 1 Abhinav Kumar Dubey, Police Station Officer searched for independent witness in order to effect the search and seizure from the accused. However the independent witnesses were not available. As such members of the raiding team namely P.W. 3 Mahendra Rajak Head Constable and one another police personnel named Dhananjay Kumar were asked to act as Punch witnesses. Thereafter search of the plastic bag held by the accused came to be conducted. It was found to be containing one 7.65 mm pistol with its additional magazine and two country made firearms. By preparing seizure memo, those three firearms and one magazine came to be seized and on the basis of the First Information Report lodged on 11.08.2015 itself by P.W. 1 Abhinav Kumar Dubey, Crime No. 160 of 2015 came to be registered against the accused for the offences punishable under Sections 25(1-b)A, 25(1-AA), 25(a-AC) and 26 r/w Section 35 of the Arms Act. C. During the course of investigation, the firearms as well as magazine came to be sent for opinion of the Ballistic Expert at the Police Centre, Lakhisarai and that report came to be obtained from P.W. 5 Shyam Sundar Prasad Kashap, Sergeant Major. Sanction as envisaged by Section 39 of the Arms Act came to be obtained from the District Magistrate, Munger and on completion of investigation, the accused came to be charge sheeted. D. The learned trial court framed and explained the charges to the accused. He pleaded not guilty and claimed trial. In order to bring home the guilt to the accused, the prosecution has examined in all six witnesses. First Informant Abhinav Kumar Dubey, Police Station Officer of Mufassil Police Station, Munger is examined as P.W.1. The FIR lodged by him is at Ext.1 and the seizure memo prepared by him is at Ext.3. The formal FIR is at Ext.4. Investigating Officer Priya Ranjan, Police Sub-Inspector is examined as P.W.2. Police Head Constable Mahendra Rajak who acted as witness to the seizure memo is examined as P.W.3. Awadh Kishore Prasad, Clerk working in the Prosecution Department is examined as Ext.4 for proving the sanction order Ext.5. The formal FIR is at Ext.4. Investigating Officer Priya Ranjan, Police Sub-Inspector is examined as P.W.2. Police Head Constable Mahendra Rajak who acted as witness to the seizure memo is examined as P.W.3. Awadh Kishore Prasad, Clerk working in the Prosecution Department is examined as Ext.4 for proving the sanction order Ext.5. Shyam Sundar Prasad Kashyap, the Sergeant Major who examined the seized firearms and who had given report Ext. 6 is examined as P.W. 5. Raghubansh Prasad Singh, Police Inspector who was the member of the raiding team is examined as P.W. 6. E. The defence of the accused was that of total denial. He however did not enter in the defeance. 3. After hearing the parties, by the impugned Judgment and order, the learned trial court was pleased to convict the accused and to sentence him as indicted in the opening para of this Judgment. 4. Heard Mr. Prince Kumar Mishra, the learned counsel appearing for the appellant at sufficient length of time. He argued that the impugned Judgment is totally perverse and illegal and cannot sustain the scrutiny of law. In his submission, the learned trial court has failed to apply its mind to the provisions of law applicable to the case in hand and had even ventured to impose punishment on the accused for the offence punishable under Section 25(1-B)a of the Arms Act which was not there on the statute book at the time of commission of the alleged offence. It is further argued that there is no iota of evidence to hold that the accused had committed the offence punishable under Section 25(1-AA) of the Arms Act and there is no evidence on record to show that prohibited arms and ammunition is involved in the case in hand. Similarly in submission of the learned counsel for the appellant, Section 26 of the Arms Act has no application to the case in hand because even according to the case of the prosecution, the accused came to be apprehended when he was holding the plastic bag containing the firearms in his hand. Therefore, the learned trial court utterly erred in convicting the accused of the offence punishable under Section 26 of the Arms Act. 5. None appeared for the State. 6. I have considered the submissions so advanced and also perused the record and proceedings including oral as well as documentary evidence adduced by the prosecution. Therefore, the learned trial court utterly erred in convicting the accused of the offence punishable under Section 26 of the Arms Act. 5. None appeared for the State. 6. I have considered the submissions so advanced and also perused the record and proceedings including oral as well as documentary evidence adduced by the prosecution. As stated in the forgoing para, case of the prosecution is simple. Acting on the secret information, the police party attempted to raid the house which was undergoing construction, owned by one Bechan Singh and sensing the approaching the police party, two persons started to flee away from that place, out of which one was the accused. He came to be apprehended with three firearms and one magazine. 7. Evidence of P.W. 1 Abhinav Kumar Dubey, the the head of the raiding team so also that of P.W. 6 Raghubans Prasad Singh, the Police Inspector who was member of the raiding team is in tune with the prosecution case. They both have spoken about the attempt on the part of the police party to raid the structure under construction belonging to Bechan Singh on 11.08.2015. Both of them have categorically deposed that two persons attempted to flee from that house out of which the police party apprehended one who is the accused before the Court. Their evidence shows that the accused was found running away with a plastic bag in his hand and after apprehending him, the same plastic bag came to be searched and from search of that plastic bag, three firearms and one magazine came to be seized by effecting seizure memo Ext.3. As per version of P.W.1 Abhinav Kumar Dubey, P.S.O., out of three firearms, one was 7.65 mm pistol and two were the country made firearms. Similar is the version of P.W. 6 Raghubansh Prasad Singh, the Police Inspector. 8. The learned counsel for the appellant attempted to argue that the evidence on record shows that so many persons gathered on the spot at the time of raid and therefore, services of P.W. 3 Mahendra Rajak, Police Head Constable should not have been availed by the police party to act as a Punch witness. For this purpose, my attention is drawn to evidence of P.W. 3 Hawaldar Mahendra Rajak, who has admitted in the cross-examination that about 100 persons from the village gathered after the accused came to be apprehended. For this purpose, my attention is drawn to evidence of P.W. 3 Hawaldar Mahendra Rajak, who has admitted in the cross-examination that about 100 persons from the village gathered after the accused came to be apprehended. However no substance is found in such contention of the learned counsel for the appellant because people at large are generally insensitive to the crime which is being committed in their presence and they hardly cooperative the police in investigation. Therefore, the villager might have gathered on the spot but that does not mean that they were ready and willing to act as Punch witnesses. On this aspect, evidence of P.W. 1 Abhinav Kumar Dubey, P.S.O. is very specific and he has stated that the independent witnesses were not available to work as Punch witnesses. That apart, from evidence of P.W.1 Abhinav Kumar Dubey, P.S.O. as well as that of P.W. 6 Raghubansh Prasad Singh, the Police Inspector seizure of the firearms is proved and their evidence is not shattered in the cross-examination. Even P.W. 3 Head Constable Mahendra Rajak has also supported the prosecution case by stating that on search of the plastic bag carried by the accused, one pistol, two firearms and one magazine came to be seized upon preparing the seizure memo. 9. P.W. 2, Priya Ranjan, the Investigating Officer has deposed that on 25.09.2015, he had telephonically contacted the Sergeant Major for ballistic examination of the seized firearms but as the said Officer was busy in the election, he had sent the firearms for ballistic examination after election. That is how on 28.11.2015, the seized firearms and the magazine were sent to the Police Centre at Lakhisarai for ballistic examination. P.W. 5 Shyam Sundar Prasad Kashyap, the Sergeant Major had conducted ballistic examination of the three firearms and the magazine seized from the accused. As per version of this witness, he examined trigger, hammer, firing pin and other parts of the firearms and had operated those spare parts of the firearms. P.W. 5 Shyam Sundar Prasad Kashyap had given description and length of barrel, butt as well as bore of the firearm and has stated that if bullet is fired from those firearms, that may cause harm to the human right. Similarly he had examined the magazine and has stated that the magazine was in the working condition. P.W. 5 Shyam Sundar Prasad Kashyap had given description and length of barrel, butt as well as bore of the firearm and has stated that if bullet is fired from those firearms, that may cause harm to the human right. Similarly he had examined the magazine and has stated that the magazine was in the working condition. Cross-examination of this witness goes to show that he had not actually fired bullets from those firearms. He had only operated the spare parts of those three firearms for ascertaining whether those firearms were functional or not. Despite this lacuna, evidence of this witness is sufficient to hold that what was seized from the accused was three firearms and the accessories of that firearm, i.e., magazine. 10. Now let us examine which offence is proved to have been committed by the accused. Section 3 of the Arms Act prohibits acquisition and possession of any firearm or ammunition unless and until the holder thereof is having a valid licence granted under Section 13 of the said Act. Contravention of this provision is made punishable under Sections 25(1-B)a of the Arms Act. Acquisition or possession of the firearms so also carrying of the firearms without a valid licence is made punishable by the provision, for which at the relevant time the prescribed penalty was imprisonment for a term which shall not be less than one year but which may extend to three years. It needs to mention here that the offence took place on 11.08.2015 and at the relevant time, the maximum of punishment for this offence was only up to three years. It was later on enhanced by the amending Act of the year 2019. The accused as seen from the evidence on record was proved to be possessing as well as carrying the three firearms with one additional magazine without holding a valid licence for the same and as such the prosecution has proved the offence punishable under Sections 25(1-B)a of the Arms Act against the accused. 11. Section 25(1-AA) of the Arms Act deals with the manufacture, sell and transfer etc., of the prohibited arms and ammunition in contravention of Section 7 of the Arms Act. The term “prohibited arms” is defined by Section 2(i) of the Arms Act. 11. Section 25(1-AA) of the Arms Act deals with the manufacture, sell and transfer etc., of the prohibited arms and ammunition in contravention of Section 7 of the Arms Act. The term “prohibited arms” is defined by Section 2(i) of the Arms Act. It reads thus:— “2 (i) “Prohibited arms” means- (i) fire-arms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or (ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-tank fire-arms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms;” It is thus clear that a prohibited firearm means a firearm of such a nature that continued firing of projectiles takes place until the pressure is released from the trigger or the magazine becomes empty. It is an automatic firearm which is capable of the burst shot by pressing the trigger only once for emptying the entire magazine. Similarly the Central Government can include any other weapons in the category of the prohibited arms by notification in the official gazette. Section 7 of the Arms Act prohibits acquisition, possession, manufacture, sale etc. of the prohibited arms and ammunition without special authority from the Central Government. Contravention of this provision is made punishable by Section 25(1-AA) of the Arms. The prescribe punishment for this offence at the relevant time i.e. 11.08.2015 was imprisonment for a term which shall not be less than seven years. 12. I have carefully perused the entire evidence on record and more particularly evidence of the Ballistic Expert, i.e., P.W. 5 Shyam Sundar Prasad Kashyap, the Sergeant Major. This witness had not even loaded any of the three firearm with bullets in order to ascertain whether it is an automatic firearm coming in the category of the “prohibited arms”. The Ballistic Expert has not even deposed that the seized firearms were so designed that a single application of pressure to the trigger causes continue firing of projectiles till release of the pressure from the trigger or the magazine becomes empty. The Ballistic Expert has not even deposed that the seized firearms were so designed that a single application of pressure to the trigger causes continue firing of projectiles till release of the pressure from the trigger or the magazine becomes empty. Thus the prosecution has utterly failed to prove that what was seized from the accused was the “prohibited arms” as defined by Section 2(i) of the Arms Act. Therefore, Section 25(1-AA) of the Arms Act has no application to the case in hand, leave apart the fact that there is no iota of evidence on record to show that the accused was manufacturing, selling, transferring, converting, repairing, testing, proving or exposing the prohibited arms and ammunition. Hence it cannot be said that the offence punishable under Section 25(1-AA) of the Arms Act is proved against the accused/appellant. 13. Section 26 of the Arms Act deals with secret contraventions. Doing of any act in contravention of provisions of Section 3, 4, 10 and 11 of the Arms Act in such a manner so as to indicate an intention that such act may not be known to any public servant etc. is made punishable by this Section. The ingredient of this Section is acting in such a manner indicating an intention of the offender that such an an act should not come within knowledge of a public servant etc. Mere holding or possessing a firearm is not sufficient to record conviction under Section 26 of the Arms Act. The prosecution is enjoined to indicate the material which may reflect intention of an accused to conceal the firearm in such a manner that the public servant may not know the concealment. To make out the offence under this Section, the prosecution is required to bring on record the special circumstances from which the only reasonable inference which may be deduce that the concealment was from the public servant. Ingredients of the penal provisions of Section 26 of the Arms Act are not made out by the evidence produced by the prosecution on record and hence the charge for the offence punishable under Section 26 of the Arms Act must also fail. 14. Perusal of the impugned Judgment goes to show that it is berift of any reasons for convicting the accused of such serious offences. 14. Perusal of the impugned Judgment goes to show that it is berift of any reasons for convicting the accused of such serious offences. Without looking into the relevant provisions of law existing on the date of alleged offence, the learned trial court had directly came to the conclusion that the recovered arms are falling under the category of ‘prohibited arms’. The learned trial court has not even examined whether on record there is any evidence regarding manufacture, sell and transfer etc. of the firearms by the accused/appellant. Even while imposing the punishment on the accused, the prescribed punishment on the date of commission of offence was lost site of by the learned trial court. The accused came to be convicted by imposing the punishment prescribed by the amending act of the year 2019 though the act of possessing the firearms in contravention of Section 3 of the Arms Act took place on 11.08.2015. 15. In view of the forgoing reasons, the appeal deserves to be allowed partly with the following orders:— a. Conviction of the appellant for the offence punishable under Section 25(1-B)a of the Arms Act is maintained and for the said offence, the accused is sentenced to suffer rigorous imprisonment for three years apart from imposition of fine of Rs.1,000/- and in default he is directed to undergo simple imprisonment for one month. b. The accused is acquitted of the offences punishable under Sections 25(1-AA) and 26 of the Arms Act. He be set at liberty forthwith if he has already undergone the sentence imposed upon him.