Satya Narayan Singh Munda Son Of ... vs State Of Jharkhand
2021 Latest Caselaw 4178 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Revision No. 340 of 2012
     Satya Narayan Singh Munda son of Gandharv Singh Munda
     Resident of Village and P.O.- Naurhi, P.S.- Arki,
     District- Ranchi, Jharkhand      ...      ...     ...    Petitioner
                            -Versus-
     State of Jharkhand               ...      ...     ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Kalyan Roy, Advocate Mr. Siddartha Roy, Advocate Mr. Nand Kishore Prasad Sinha, Adv.

For the Opp. Party : Mr. Shiv Shankar Kumar, A.P.P.

7/16.11.2021

1. Heard Mr. Kalyan Roy, learned counsel appearing on behalf of the petitioner alongwith Mr. Siddartha Roy, Advocate.

2. Heard Mr. Shiv Shankar Kumar, the learned A.P.P.

appearing on behalf of the Opposite Party-State.

3. The present criminal revision application is directed against the judgment dated 07.02.2012 passed by the learned Additional Judicial Commissioner-1, Khunti in Cr. Appeal No. 80 of 2007, whereby and whereunder the learned appellate court upheld the Judgment of conviction and the order of sentence dated 20.03.2007 passed by the learned Sub-Divisional Judicial Magistrate, Khunti in G.R. No. 488 of 2006 / T.R. No. 67 of 2007 (arising out of Arki P.S. Case No. 31/2004) and dismissed the criminal appeal.

4. The learned trial court had convicted the petitioner under Sections 25(1-b) a and 26 of the Arms Act and had sentenced him to undergo Rigorous Imprisonment for 03 years and fine of Rs.5,000/- and in default of payment of fine, to undergo additional Rigorous Imprisonment for six months for each offence and both the sentences were directed to run concurrently.

Arguments on behalf of the petitioner

5. Learned counsel for the petitioner while assailing the impugned judgments submitted that the impugned judgments are perverse and cannot be sustained in the eyes of law. He submitted that both the seizure list witnesses have turned hostile and neither the time of seizure, nor the place of seizure has been proved and as such, the recovery itself is under doubt. He further submitted that as per the prosecution case, the raiding team reached the village at 7.45 A.M., surrounded the house of the petitioner, called the witnesses and conducted the raid and the seizure list is alleged to have been prepared at 8 A.M. He submits that it is an impossibility that having reached the village at 7.45 A.M., the entire proceeding regarding search, seizure and recovery including the preparation of seizure list was completed within a short period of 15 minutes. He submitted that considering this impossibility, the entire allegation is absolutely improbable and the impugned judgments cannot be sustained. He further submitted that so far as the recovery is concerned, some of the witnesses have stated that the recovery was made under the bedroll in the room of the petitioner and a few of them have stated that bedroll was beneath the cot of the petitioner. Accordingly, there is inconsistency in the evidence of the prosecution witnesses with regard to the place of recovery as well. Learned counsel referred to evidence of the seizure list witnesses and submitted that although they have not denied their signatures on the seizure list, but they have stated that their signatures were not taken at the time of seizure. He also submitted that there has been no recovery from the conscious possession of the petitioner, even if the seizure is assumed to have been proved. He relied upon the judgment passed by the Hon'ble Supreme Court in the case

of Sans Pal Singh -vs- State of Delhi (AIR 1999 SC 49).

6. Without prejudice to the aforesaid submissions, the learned counsel for the petitioner submitted that the petitioner was arrested on 13.10.2004 and was enlarged on bail on 22.02.2005 during trial and he also remained in judicial custody from 03.5.2012 to 10.7.2012 during pendency of the present criminal revision application and accordingly, he has remained in custody for more than six months and he has no criminal antecedent and therefore, some sympathetic view may be taken and the sentence of the petitioner may be confined to the period already undergone by him in judicial custody.

Arguments on behalf of the Opposite Party-State

7. The learned A.P.P. appearing on behalf of the State, on the other hand, opposed the prayer and submitted that there is no scope for re-appreciation of the evidences on record and coming to a different finding in revisional jurisdiction. He submitted that both the judgments passed by the learned courts below are well reasoned. He also submitted that although the seizure list witnesses have turned hostile, but this fact has been taken care of by the learned appellate court and reason has been assigned which could be the reason for them to have turned hostile. He further submitted that the seizure list witnesses have not disputed their signatures on the seizure list and the seizure list also contains the signature of the present petitioner. He submitted that so far as the time and place of recovery are concerned, the same have been proved by the prosecution witnesses and it is not in dispute that the recovery was made from the room in which the petitioner was present and the fire-arm was recovered from beneath the bedroll. He submitted that the discrepancies, if any, which are being pointed out by the learned counsel for the petitioner are not

material discrepancies, calling for any interference in revisional jurisdiction. He submitted that all the official witnesses who formed part of the raiding team have duly supported the prosecution case and no enmity as such has been pointed out by learned counsel for the petitioner with regard to any of the official members of the raiding team alleging any reason for false implication of the petitioner.

Findings of this Court

8. The prosecution case is based on the self-statement of Ramrup Mandal, A.S.I., Arki P.S. alleging that on 13.10.2004, in course of raid, he alongwith the police force reached Village- Nawdi and he got information that the petitioner has kept illegal arms. Thereafter, he raided the house of the petitioner in presence of two independent witnesses namely, Mothu Seth and Dinbandhu and recovered one country-made pistol with two live cartridges from the bed of the petitioner kept in hidden condition. He prepared seizure list in presence of the two independent witnesses as no paper was produced by the petitioner and the petitioner was arrested. On the basis of the self-statement, a formal F.I.R was registered as Arki P.S. Case No.31 of 2004 dated 13.10.2004 under Section 25(1-b)a / 26 of the Arms Act and after completion of investigation, the charge-sheet was submitted against the petitioner and cognizance of the offence was taken under the same sections.

9. On 11.01.2005, the charges under Sections 25(1-b)a and 26 of the Arms Act were framed against the petitioner which were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

10. In course of trial, the prosecution examined altogether 11 witnesses to prove its case. P.W.-1 Hawaldar Shashi Bhushan Prasad, P.W.-2 Hawaldar Sidhanath Upadhyay, P.W.-3 Binay Kumar Das and P.W.-4 Subodh Mandal are the

members of the raiding party. P.W.-5 is Surendra Ram, P.W.-6 is Dinbandhu Thakur who is a seizure list witness, P.W.-7 is Ramrup Mandal who is the informant of the case, P.W.-8 is Ghasia Oraon who is also a member of the raiding party and P.W.-9 is Mothu Seth who is also a seizure list witness. P.W.-10 Ram Deo Singh is the Investigating Officer of the case and P.W.-11 is Anil Kumar Yadav. The prosecution exhibited the signature of seizure witnesses on seizure list as Exhibit-1 and 1/2, signature of the sanctioning authority on the sanction order for prosecution as Exhibit- 1/1, seizure list as Exhibit-2, self-statement as Exhibit-3, registration of F.I.R as Exhibit-4, examination report of seized fire-arms as Exhibit-5 and formal F.I.R. as Exhibit-7 and also exhibited the seized fire-arms as Material Exhibits- I, II and II/1.

11. After closure of prosecution evidence, the petitioner was examined under Section 313 of Cr.P.C wherein he denied the incriminating evidences put to him and claimed to have been falsely implicated. The petitioner did not adduce any evidence in his defence.

12. The learned trial court considered the evidences available on record and recorded its findings that P.Ws.- 1, 2, 3, 4, 5, 7, 8, 10 and 11 are the police officials who have fully supported the prosecution case. The house of the petitioner was searched and the raid was conducted in presence of P.Ws.- 1, 2, 3, 4, 5, 7, 8 and 10 and in course of the raid, one country-made pistol and two .315 live cartridges were recovered from beneath the bed kept in hidden condition in the room of the house of the petitioner and the petitioner was found sleeping on the bed which has been fully supported by all the aforesaid prosecution witnesses. The sergeant major namely, Sri Rajeev Kumar in his examination report, Exhibit-5, has found the recovered country-made

pistol and two cartridges in effective condition and the said country-made pistol and both .315 cartridges have been produced in court which have been marked as Material Exhibits- I, II and II/1 and the sanction order for prosecution against the petitioner has been exhibited as Exhibit-1/1. P.W.-6 and P.W.-9 have identified their signatures on the seizure list, although they have said that nothing was recovered from the house of the petitioner and in this regard, recording of their statements have been corroborated by the investigating officer in his evidence. The seizure list (Exhibit-1) has established that one country- made pistol and two .315 live cartridges were recovered from beneath the bed kept in the room of the house of the petitioner and the petitioner was found sleeping on the bed and the petitioner was apprehended alongwith the said recovered fire-arms and a copy of the seizure list was also given to the petitioner and the seizure list also contains the signature of the petitioner. The learned trial court concluded that the prosecution has been able to prove the charges under Sections 25(1-b)a and 26 of the Arms Act against the petitioner beyond all reasonable doubts and the evidence of all the prosecution witnesses are credible and there is no contradiction in their evidences regarding the occurrence. On the basis of the aforesaid findings, the learned trial court convicted the petitioner under Sections 25(1-b)a and 26 of the Arms Act and sentenced him as mentioned above.

13. The learned appellate court also considered the evidences on record and recorded its finding in Para-15 that the country- made pistol and the live cartridges have been produced before the court and have been marked as Material Exhibits- I, II & II/1 and so, the court also got an opportunity for inspection of the arms. These arms which were seized in this case have been produced from the Malkhana. The seizure

list witnesses, P.W.-6 and P.W.-9, co-villagers of the accused, have identified their signatures on the seizure list, although they have been declared hostile. The learned appellate court further recorded that a copy of the seizure list has also been given to the accused on the spot and therefore, the seizure cannot be denied. The I.O. has proved the report of the Sergeant Major as Exhibit-5. No paper has been produced on behalf of the defence. Therefore, it is evident that the illegal arms which were active were seized from the accused on the alleged day and time. The witnesses who were members of the police party have corroborated the evidence and there is nothing to disbelieve them. It is also evident that the seized arms were kept hidden in the bed in such manner that it could not be known to any public servant. The learned appellate court upheld the conviction and sentence of the petitioner under Sections 25(1-b)a and 26 of the Arms Act and dismissed the criminal appeal.

14. After hearing the counsel appearing for the parties and going through the materials on record, this Court finds that P.W.-7 is the informant of the case and he deposed that he raided the house of the petitioner with raiding team and recovered one country-made pistol and live cartridges and he prepared seizure list. He proved the seizure list as Exhibit-2, his self-statement as Exhibit-3, registration of F.I.R as Exhibit-4, examination report of seized fire-arms as Exhibit-5 and formal F.I.R. as Exhibit-7 and the sanction order for prosecution as Exhibit-1/1. He also identified the petitioner in court. He has fully supported the prosecution case.

15. This Court further finds that P.W.-6 and P.W.-9 are the seizure list witnesses and they have identified and exhibited their signatures on the seizure list as Exhibit-1 and Exhibit-

1/2 respectively. Although both the seizure list witnesses have been declared hostile by the prosecution, but their statements have been corroborated by the investigating officer and accordingly, the seizure list has established that one country-made pistol and two .315 live cartridges were recovered in hidden condition beneath the bed kept in the room of the house of the petitioner and the petitioner was found sleeping on the bed and the petitioner was apprehended alongwith the fire-arms and a copy of the seizure list was also given to the petitioner and the seizure list also contains the signature of the petitioner.

16. This Court further finds that P.Ws.- 1, 2, 3, 4, 7, 8 and 11 are the police officials who were members of the raiding party and are the eye witnesses of the case and they have fully corroborated the prosecution case including the recovery and seizure of the fire-arms from the conscious possession of the petitioner in their presence.

17. This Court further finds that P.W.-10 is the investigating officer of the case and he has proved the place and time of the occurrence. He identified the examination report of the seized fire-arms earlier exhibited as Exhibit-5 and also identified the sanction order for prosecution earlier exhibited as Exhibit-1/1. This Court further finds that the seized country-made pistol and two live cartridges have been found to be in effective condition in course of their examination by the expert and P.W.-11 has also produced them before the trial court and has exhibited them as Material Exhibits- I, II and II/1 respectively.

18. This Court is of the considered view that even when the seizure list witnesses turned hostile, the evidences of the official witnesses who were members of the raiding party and the evidence of the Investigating Officer have been found to be credible by the learned courts below and their

evidence has rightly been made the basis to believe the seizure. The fact remains that although the seizure witnesses did not support the recovery of the seized fire- arms, but they have admitted their signatures on the seizure list. The prosecution witnesses have been thoroughly cross- examined on behalf of the defence and the evidences of the official witnesses were found to be consistent by both the learned courts below including on the point of seizure of fire arms from the conscious possession of the petitioner kept below the bed-roll in a concealed manner in a room where the petitioner was sleeping and was arrested on the spot and seizure list was prepared. So far as the argument of the petitioner that the entire search and seizure procedure could not have been completed in 15 minutes time is concerned, the same is devoid of any merit and cannot be considered for the first time in revisional jurisdiction. The time taken for completion of search and seizure is essentially a question of fact depending upon peculiar facts and circumstances of each case. The judgement relied upon by the petitioner in the case of Sans Pal Singh -vs- State of Delhi (AIR 1999 SC 49) does not apply under the facts and circumstances of this case. The said judgement was passed under a peculiar circumstance where the conviction was based only on the evidence of two police witnesses and there was no witness to the seizure although a number of persons were passing through at the time of recovery and no explanation was furnished by the prosecution during trial as to why witnesses from public were not joined at the time of seizure and under such circumstances the Hon'ble Supreme court found it unsafe to maintain the conviction of the accused of the said case and acquitted him. In the present case there are a large number of official witnesses who were part of the raiding team and the seizure was

joined by local persons as witnesses, who though admitted their signatures on the seizure list but turned hostile and the reasons for being hostile has also been considered by the learned appellate court who upheld the conviction upon considering all the materials on record. Merely because the seizure witnesses have turned hostile, though admitted their signature on the seizure list, the same does not make the impugned judgement of conviction illegal or perverse. There is nothing on record and there is no such argument advanced on behalf of the petitioner regarding any reason for false implication of the petitioner by the police officials who have fully supported the prosecution case. This Court finds no material irregularity or illegality or perversity with the approach of the learned courts below calling for any interference in revisional jurisdiction.

19. The Hon'ble Supreme Court in the case of Rameshbhai Mohanbhai Koli and others -vs- state of Gujarat (2011) 11 SCC 111, while dealing with the appreciation of evidence in connection with hostile witnesses has held that merely because a witness is hostile, the evidence of such witness cannot be said to be completely washed off. In Para- 16 to 18, it has been held as under:

"Hostile witness

16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana1, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.)

17. In State of U.P. v. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that

portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia v. State of Punjab, Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State.

18. In C. Muniappan v. State of T.N. this Court, after considering all the earlier decisions on this point, summarised the law applicable to the case of hostile witnesses as under: (SCC pp. 596-97, paras 83-85) "83. ... the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (Vide Sohrab v. State of M.P., State of U.P. v. M.K. Anthony, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, State of Rajasthan v. Om Prakash, Prithu v. State of H.P., State of U.P. v. Santosh Kumar and State v. Saravanan.)"

20. The Hon'ble Supreme Court in the case Duli Chand -vs-

Delhi Administration (1975) 4 SCC 649 in Paragraph-5, while considering the scope of revisional power, has held as follows:

"5. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

21. The Hon'ble Apex Court in the case of Jagannath Choudhary and others -vs- Ramayan Singh and Another (2002) 5 SCC 659 at Para-9 has explained the power of revisional court which reads as under: -

"9. Incidentally the object of the revisional jurisdiction as envisaged u/s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the application would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction."

22. This Court in the case of Ramesh Kumar Bajaj -vs- The State of Jharkhand (2009) 1 JCR 684 (Jhar) at Para-13 has

explained the revisional power for interference which is as follows:

"13. It is well settled that revisional interference may be justified where:

(i) the decision is grossly erroneous.

(ii) there is no compliance with the provisions of law.

(iii) the finding of fact affecting the decision is not based on evidence.

(iv) material evidence of the parties is not considered and

(v) judicial discretion is exercised arbitrarily or perversely."

23. In view of the aforesaid findings, this Court finds that both the learned courts below have passed well-reasoned judgments considering every aspect of the matter and there is no perversity or illegality in the impugned judgments calling for any interference under revisional jurisdiction.

24. Accordingly, the conviction and sentence of the petitioner under Sections 25(1-b)a and 26 of the Arms Act passed by the learned trial court and upheld by the learned appellate court is affirmed and this criminal revision application is hereby dismissed.

25. Bail bond furnished by the petitioner is cancelled.

26. Interim order, if any, stands vacated.

27. Pending interlocutory application, if any, is disposed of.

28. Let the lower court records be immediately sent back to the court concerned.

29. Let a copy of this Judgment be communicated to the learned court below through e-mail/FAX.

(Anubha Rawat Choudhary, J.) Binit/