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2025 DIGILAW 625 (PAT)

Dayanand Yadav S/o Hardev Yadav v. State of Bihar

2025-06-26

BIBEK CHAUDHURI

body2025
JUDGMENT : BIBEK CHAUDHURI, J. The instant criminal revision is directed against an order of affirmation of the Judgment of conviction and sentence passed by the learned Judicial Magistrate, 1 st Class, Khagaria, on 30 th July, 2013, in Khagaria (Muffasil) P.S. Case No. 330 of 2010, convicting the petitioner for the offence punishable under Sections 25(1-B)a, and 26(1) of the Arms Act and sentencing him to undergo rigorous imprisonment for 03 years with fine of Rs. 5,000/-, in default, further rigorous imprisonment for 06 months. The said Judgment and order of conviction and sentence was affirmed by the leaned Sessions Judge, Khagaria in Criminal Appeal No. 48 of 2013. The order of conviction and sentence is under challenge in the instant revision. 2. Prosecution case in brief is that on 10 th of August, 2010, the informant got a secret information that some criminals assembled in Nanhku Mandal Tola within Khagaria Police Station. The said information was diarised and at about 00:15 hour the informant and Police party attached to Khagaria Police Station went to the said spot to workout the said information. 3. During raid, Police party found a person sleeping on a “Bamboo Macha” in front of the house of one Asharfi Yadav. On suspicion, the Police party called the said person, he woke up and one rifle and 16 number of live cartridges were recovered, concealed under the bed of the said person. As he could not account for the possession of the rifle and the cartridges, it is seized by the Police party at the spot under the proper seizure list, which was signed by the members of the raiding party. The accused was arrested and brought to the Police Station. The firearm was subsequently examined by the Sergeant Major and he opined that the seized firearm is in working condition and the cartridges were live cartridges. 4. After investigation, Police submitted charge sheet against the accused. The accused duly appeared before the trial court to face trial. The learned Magistrate framed charge under Sections 25(1-B)a/26 of the Arms Act against the accused. The charge so farmed was read over and explained to him and he pleaded not guilty. Accordingly, trial of the case was initiated. 5. In order to bring home the charge against the accused prosecution examined 8 witnesses, amongst them PW.-6 was the S.H.O. of Khagaria (Mufassil) Police Station. The charge so farmed was read over and explained to him and he pleaded not guilty. Accordingly, trial of the case was initiated. 5. In order to bring home the charge against the accused prosecution examined 8 witnesses, amongst them PW.-6 was the S.H.O. of Khagaria (Mufassil) Police Station. He was the informant of the case as well as the leader of the raiding party. All other witnesses are Police Personnel and PW.-4 is the Sergeant Major, who examined the firearm and ammunition. PW.-8 is the In-charge of P.S. Malkhana, who deposed that the firearm was seized in connection with Khagaria (Mufassil) P.S. Case No. 330 of 2010 and was produced in Malkhana under his control. 6. It is needless to say that revisional jurisdiction is limited in comparison to a criminal appeal. In criminal revision, it is not open for the Court to appreciate, access and come to a decision as to whether the evidence on record is sufficient to warrant conviction against the accused. Only when appreciation of evidence is reported to be wholly perverse, the revisional Court can look into the evidence on behalf of the prosecution to come to a finding as to whether a final order of conviction and sentence ought to be overturned. 7. In the instant case, the learned Advocate for the accused/petitioner in course of his argument took the following plea:- (a) According to prosecution the accused was arrested while possessing a firearm and live cartridges from the “Basa” of one Ashrafil Yadav, but said Ashrafil Yadav was not examined by the Investigating Officer during investigation of the case. He was also not cited as a witness of the charge-sheet. (b) Prosecution has failed to examine any independent witness of the locality. (c) The firearm and the live cartridges were not recovered from the physical possession of the petitioner. On the contrary, those were recovered from under his bed. Therefore, the prosecution failed to prove possession of contraband articles by the accused/petitioner. 8. From the conspectus of argument made by the learned Advocate for the petitioner, it is clear that the petitioner did not challenge raid conducted by the Police Authority in the dead hours of night at the spot where the petitioner was sleeping. Secondly, recovery of firearm and ammunition were not strictly challenged by the petitioner. 8. From the conspectus of argument made by the learned Advocate for the petitioner, it is clear that the petitioner did not challenge raid conducted by the Police Authority in the dead hours of night at the spot where the petitioner was sleeping. Secondly, recovery of firearm and ammunition were not strictly challenged by the petitioner. Only argument advanced by the learned Advocate on behalf of the petitioner is that apart from Police Personnel no other person were cited as seizure witnesses. The S.H.O. of the concerned P.S. is himself the informant and, therefore, prosecution case ought to be considered with a pinch of sort. 9. In the instant case, the petitioner never comes up with a story that he had certain amount of animosity with the Police Personnel. If there is no inimical relationship between the Police party and the petitioner and no suggestion is made during cross- examination that the petitioner was falsely implicated due to inimical relationship between him and the Police party, evidence of Police Personnel cannot be discarded on the ground of inter stagnates. 10. At this stage, this Court comes up to a juncture to decide as to whether non-examination of any independence witness or failure on the part of the Police Authority to seize the firearm and ammunition, in presence of the independent witnesses of the locality, is fatal for the prosecution. From the prosecution story, it is ascertained that Police party conducted raid at 00:15 hours. The accused was apprehended at about 1:45 A.M. at dead hours of night from a village. During such dead hours of night it is not generally possible to get independent witnesses being the villagers of the concerned village where the accused was apprehended and the firearm was seized. 11. In a very recent decision, in the case of Baljinder Singh alias Ladoo and Others Vrs. State of Punjab , reported in 2024 SCC OnLine SC 2622 , the Hon’ble Supreme Court discussed the affect of non-examination of independent witnesses. In paragraph-29 of the aforesaid report it is observed by the Hon’ble Supreme Court:- “29. It is also settled law that examination of independent witness is not an indispensable requisite if the testimonies of other witnesses are deemed trustworthy and reliable. In paragraph-29 of the aforesaid report it is observed by the Hon’ble Supreme Court:- “29. It is also settled law that examination of independent witness is not an indispensable requisite if the testimonies of other witnesses are deemed trustworthy and reliable. Non-examination of any independent witness by the prosecution will not go to the root of the matter affecting the decision of the court, unless other witnesses' testimonies and evidences are scant to establish the quilt of the accused. Reference is made to paragraph 24 of the decision of this court in Guru Dutt Pathak v. State of U.P. , reported in (2021) 6 SCC 116 where it was ruled as follows:- "24. One another ground given by the learned trial court while acquitting the accused was that no independent witness has been examined. The High Court has rightly observed that where there is clinching evidence of eyewitnesses, mere non- examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution.” 12. The ratio of the above mentioned decisions is that examination of independent witnesses is not indispensable for the prosecution to prove a charge. When the Police party, who conducted raid and arrested accused with contraband and also seized the firearm and ammunition from the possession of the petitioner, there is no reason to raise doubt against the evidence adduced by the witnesses on behalf of the prosecution. Moreover, PW.-4 has proved that the seized firearm and ammunition are in working condition and live cartridges respectively. The prosecution was lodged after obtaining sanction of the concerned Authority under Section 39 of the Arms Act. 13. Considering the above circumstances, this Court is not in a position to interfere with the current finding of the fact and the order of conviction and sentence passed by both the court below. 14. The instant criminal revision is accordingly dismissed on contest. 15. Lower court record and the case diary, if any, be returned to the court below forthwith.