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2023 DIGILAW 953 (JHR)

Birsa Munda v. State of Jharkhand

2023-07-31

AMBUJ NATH

body2023
JUDGMENT : Petitioners Birsa Munda and Surju Pahan have filed this revision application against the judgment dated 20.05.2016, passed by Shri Pradeep Kumar Srivastava, Sessions Judge, West Singhbhum at Chaibasa (As His Lordship was then), whereby and wherein, the learned Sessions Judge, West Singhbhum at Chaibasa partly allowed the appeal of the petitioners, by upholding the judgment of conviction and order of sentence dated 17.03.2016, passed by Shri Rama Kant Mishra, 1st Assistant Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 69/2012 arising out of Bandgaon P.S. Case No. 31/2011 corresponding to G.R. No. 277/2011, holding the petitioners guilty of the offences under sections 25(1-A)/25(1-B)a/26/35 of the Arms Act and thereby sentencing them to undergo R.I for seven years along with a fine of Rs. 2,000/- for the offences under section 25(1-A)/35 of the Arms Act; R.I for two years along with a fine of Rs. 1,000/- for the offences under section 25(1-B)a/35 of the Arms Act and R.I for five years along with a fine of Rs. 2,000/- for the offences under sections 26/35 of the Arms Act. In default of payment of fine, they were further directed to undergo S.I for one month. All the sentences were ordered to run concurrently. The period already undergone by them during the trial were ordered to be set off. Learned Sessions Judge, West Singhbhum at Chaibasa, while upholding the judgment of conviction and order of sentence, set aside the judgment of conviction and order of sentence passed by the learned Trial Court holding the petitioners guilty of the offences under sections 26(1)/35 of the Arms Act 2. Prosecution case was instituted on the basis of self statement of the Informant A.S.I Suraj Oraon, Officer-in-charge, Bandgaon Police Station, alleging therein that on 27.09.2011 at about 11.15 am, he along with the police party was checking the vehicles outside the Bandgaon Police Station. While doing so, he intercepted one motorcycle bearing registration no. JH-01G-1792 and apprehended both these petitioners. On search, one loaded country made pistol and a live cartridge of 7.62 bore was recovered the possession of the petitioner Birsa Munda, while two live cartridges of 7.62 bore were recovered from the possession of the petitioner Surju Pahan. Seizure list was prepared at the spot and copy thereof was also handed over to both the petitioners. 3. On search, one loaded country made pistol and a live cartridge of 7.62 bore was recovered the possession of the petitioner Birsa Munda, while two live cartridges of 7.62 bore were recovered from the possession of the petitioner Surju Pahan. Seizure list was prepared at the spot and copy thereof was also handed over to both the petitioners. 3. In order to prove its case, prosecution has adduced both oral and documentary evidences. Both the learned Trial Court as well as the learned Appellate Court have come to a concurrent finding regarding the guilt of the petitioners. 4. Mrs. Nivedita Kundu, learned counsel appearing on behalf of the petitioners, submitted that Ballistic Expert, who has been examined as P.W-9, has stated that out of four cartridges, two were not in the working condition as they were misfired cartridges. It was submitted that the prosecution has not brought on record as to from whose possession, two misfired cartridges were recovered. As such, liability cannot be fixed on either of the petitioners for possessing the prohibited ammunition. Accordingly, it was prayed that no case under section 25(1-A)/35 of the Arms Act can be said to be made out. 5. Mr. Pankaj Kumar Mishra, learned A.P.P has submitted that two live cartridges each were recovered from the possession of the petitioners and they have been held guilty for the offences under sections 25(1-A)/35 of the Arms. It was further submitted that both these petitioners were aware that they were carrying firearms and prohibited cartridges. As such, failure on the part of the prosecution by not adducing specific evidence with regard to the recovery of misfired cartridges, will not prove fatal to its case. 6. The Informant Suraj Oraon has been examined as P.W-1. He has supported the allegation as made in his self-statement, which is the basis of First Information Report. He has stated that on 27.09.2011 at about 11.00 am, he was checking the vehicles in front of Bandgaon Police Station at N.H 75. At about 11.15 am, he intercepted one Hero Honda Splender Plus Motorcycle bearing registration no. JH-01G-1792 and apprehended both the petitioners. On search, one loaded country made pistol and a live cartridge was recovered from the possession of the petitioner Birsa Munda, while two live cartridges were recovered from the possession of the petitioner Surju Pahan. Petitioners could not produce any valid document for possessing the seized firearms. JH-01G-1792 and apprehended both the petitioners. On search, one loaded country made pistol and a live cartridge was recovered from the possession of the petitioner Birsa Munda, while two live cartridges were recovered from the possession of the petitioner Surju Pahan. Petitioners could not produce any valid document for possessing the seized firearms. Seizure list was prepared at the place of occurrence and copy thereof was also given to the petitioners. He has proved the seizure list which has been marked Ext.-1. He thereafter proved his self-statement which has been marked Ext.-2. He has been cross-examined at length. In his cross-examination, he has stated that he cannot state the registration number of all the vehicles which were checked on the date of occurrence. He has further stated that the petitioners were coming from Murhu and going towards Khunti. He has further stated that the seizure list was prepared at the place of occurrence itself. 7. Prabhu Oraon (P.W-4), Arjun Pareya (P.W-5) and Hawaldar Narendra Thakur (P.W-7), all have corroborated the statement of the Informant Suraj Oraon (P.W-1) and have stated that on the date and time of occurrence, during course of checking of vehicle outside Bandgaon Police Station, petitioners were apprehended and on search, a loaded country made pistol and a live cartridge was recovered from the possession of the petitioner Birsa Munda, while two live cartridges were recovered from the possession of the petitioner Surju Pahan. Prabhu Oraon (P.W-4) and Arjun Pareya (P.W-5) have failed to identify the petitioners in the dock. However, Hawaldar Narendra Thakur (P.W-7) has identified both these petitioners in the dock. 8. Shyam Bihari Singh (P.W-9) is the Ballistic Expert who has examined the recovered firearm and ammunition. He has stated that country made pistol was in working condition. He has further stated that out of four cartridges, two were live cartridges, while two were misfired cartridges. He has proved his report which has been marked Ext.-5. In his cross-examination, he has stated that he cannot say as to when misfired cartridges were fired upon. He has further stated that cartridges which were of 7.62 bore come within the purview of prohibited arms. 9. Rajeshwar Singh (P.W-8) is the Investigating Officer of this case. He has proved the place of occurrence which is outside the Bandgaon Police Station on NH-75. He has given description of place of occurrence. He has further stated that cartridges which were of 7.62 bore come within the purview of prohibited arms. 9. Rajeshwar Singh (P.W-8) is the Investigating Officer of this case. He has proved the place of occurrence which is outside the Bandgaon Police Station on NH-75. He has given description of place of occurrence. This witness has also proved the sanction order issued by the District Magistrate, West Singhbhum at Chaibasa for the prosecution of the petitioners which has been marked Ext.-3. 10. From perusal of the documentary evidences adduced by the prosecution, it transpires that the seizure list and signature of the witnesses on the seizure list have been marked Ext.-1 series. From the perusal of which, it transpires that on 27.09.2011 at 11.30 am, a country made pistol and a live cartridge was recovered from the possession of the petitioner Birsa Munda, while two live cartridges were recovered from the possession of the petitioner Surju Pahan. All the cartridges were of 7.62 bores. It further appears from perusal of the sanction order (Ext.-3) that the District Magistrate, West Singhbhum at Chaibasa after going through all the materials placed before him, has accorded sanction for the prosecution of the petitioners. From perusal of report of Ballistic Expert (Ext.5), it appears that the findings of the Ballistic Expert in his report fully corroborates his oral testimony recorded in the court during the trial with respect to the fact that two live cartridges were in working condition while two were misfired cartridges. 11. From the aforesaid facts and circumstances, it is apparent that the prosecution has been able to prove that on 27.09.2011 between 11.00 am to 11.30 am, petitioners were apprehended outside the Bandgaon Police Station on NH 75 while going on a motorcycle. On search, a loaded country made pistol and live cartridges was recovered from the possession of Birsa Munda, while two cartridges were recovered from the possession of the petitioner Surju Pahan. Out of the four cartridges, two were in working condition. It appears that the prosecution has not been able to bring this fact on record as to from whose possession, misfired cartridges were recovered. However, both these petitioners were travelling on the same motorcycle and firearm and ammunitions were recovered from their possession. As such, both these petitioners were aware of the fact that they were carrying arms and ammunitions. It appears that the prosecution has not been able to bring this fact on record as to from whose possession, misfired cartridges were recovered. However, both these petitioners were travelling on the same motorcycle and firearm and ammunitions were recovered from their possession. As such, both these petitioners were aware of the fact that they were carrying arms and ammunitions. Petitioners have been held guilty for possessing prohibited arms under section 25(1-A)/35 of the Arms Act and also under section 25(1-B) a of the Arms Act. 12. In view of the aforesaid facts, I am of the opinion that both the learned Trial Court as well as the learned Appellate Court have come to a correct finding regarding the guilt of the petitioners for the aforesaid offences. The sentence passed by the learned Trial Court is minimum prescribed for the offence under section 25(1-A) a/35 of the Arms Act and does not require any interference. 13. Accordingly, this revision application is dismissed. Pending I.A., if any, stands disposed of.