Naresh Mandal vs The State Of Jharkhand
2021 Latest Caselaw 4397 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                      Cr. Revision No. 559 of 2003

              Naresh Mandal, S/o Ram Prasad Mandal, resident of Village
              Bara, P.S. Mohanpur, District-Deoghar.
                                                  ...    ...   Petitioner
                                  Versus
              The State of Jharkhand          ...      ...     Opp. Party
                                  ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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07/25.11.2021

1. Heard Mr. Deepankar Roy, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Ashok Kumar, learned counsel appearing on behalf of the opposite party-State.

3. The present criminal revision application is directed against the judgment and order dated 25.04.2003 passed in 145 of 2001 Criminal Appeal No. by the learned 1st Additional 105 of 2002

Sessions Judge, Deoghar, whereby the learned appellate has dismissed the appeal preferred by the petitioner and confirmed the judgment of conviction and order of sentence dated 28.11.2001 passed by the learned Judicial Magistrate 1 st Class, Deoghar in G.R. Case No. 320/1998 and T.R. No. 303/2001.

4. The learned trial court has convicted the petitioner for offence under Sections 25(1-B) and 26 of the Arms Act and sentenced him to undergo rigorous imprisonment for two years with fine of Rs. 1000/- for offence under Section 25(1-B) of the Arms Act and in default of payment of fine, the petitioner was directed to undergo simple imprisonment for three months. The petitioner was further directed to undergo rigorous imprisonment for one year with fine of Rs. 500/- for offence under Section 26 of the Arms Act and in default of payment of fine, he was directed to undergo simple imprisonment for one month. All the sentences were directed to run concurrently.

Submissions of the petitioner

5. Learned counsel for the petitioner, while assailing the impugned judgments passed by the learned courts below, has submitted that at the time of seizure of the fire arms, admittedly the petitioner was not present on the spot. He has further submitted that so far as the seizure list witnesses are concerned, they have turned hostile, however, they have not disputed their respective signatures on the seizure list. He submits that the recovery was admittedly not from the physical possession of the petitioner and considering the facts and circumstances of this case, the petitioner is entitled to benefit of doubt and these aspects of the matter have not been properly considered by the learned courts below.

6. Without prejudice to the aforesaid submissions, the learned counsel for the petitioner has submitted that the alleged offence is of the year 1998 and much time has elapsed from the date of the incident; the present age of the petitioner is more than 59 years and the petitioner has faced the rigors of criminal case for a long time, and accordingly some sympathetic view may be taken and the sentence be modified.

Submissions on behalf of the opposite party-State

7. Learned counsel appearing on behalf of the opposite party-State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record. He further submits that the seizure list witnesses, though turned hostile, but had admitted their signatures on the seizure list and the official witnesses have fully supported the prosecution case and they have been fully cross-examined from the side of the defence, but no material contradictions could be taken.

8. The learned counsel has also submitted that so far as the materials exhibit i.e. the seized arms are concerned, the same were exhibited before the learned court below as Ext.-I and II and they were marked as exhibits without any objection and as recorded in the impugned judgment passed by the learned trial court, there was no cross-examination also on this point. The learned counsel submits that the fire arms kept in concealed manner were seized from the shop belonging to the petitioner and accordingly, the seizure was from the constructive possession of the petitioner. He submits that both the learned courts below have passed well-reasoned judgments and accordingly, no interference is called for in revisional jurisdiction.

9. During the course of argument, the learned counsel for the State has submitted that the minimum sentence for the alleged offence during the time when the offence was committed by the petitioner, was one year under Section 25(1- B) of the Arms Act and if this Court is inclined to modify the sentence of the petitioner, then the same may not be less than one year. He has further submitted that so far as the sentence under Section 26 of the Arms Act is concerned, in the instance case, it is only for one year with fine of Rs. 500/-. Findings of this Court

10. After hearing the learned counsel for the parties, this Court finds that the informant of the case had filed a written report stating that on 06.05.1998, the police officials came to the police station in connection with another case registered under Sections 395/397 of the Indian Penal Code in search of the looted property and a petition was given for search and consequently, the house as well as the shop of the petitioner was searched and during search, two country made pistols were recovered from the shop of the petitioner kept in a

concealed manner. The search and seizure was done in presence of two independent witnesses. On the basis of the report, the case was registered for offence under Sections 25(1- B) and 26 of the Arms Act and charge-sheet was submitted under the same sections.

11. During the course of trial, altogether eight witnesses were examined on behalf of the prosecution. P.Ws.-1 and 2 were the seizure list witnesses, who turned hostile, however, they had not denied their signatures on the seizure list. P.Ws. -3 to 7 were the official witnesses, who had fully supported the prosecution case. P.W.-8 was the investigating officer of the case and he has produced the seized materials before the learned court below, which were marked as Ext.-I and II respectively without any objection from the side of the defence and during his cross- examination also, nothing was asked about the seized articles. The sanction report was exhibited as Ext.-6. The seizure list was exhibited as Ext.-2 and the signatures of the seizure list witnesses were marked as Ext.-1 and 1/1. The seizure list corroborated with the materials exhibits which were produced in the court and were marked without any objection. So far as the official witnesses are concerned, they have supported the prosecution case and they were fully cross-examined. The learned trial court considered the evidences on record and found that there was no previous conviction against the petitioner and convicted him for offence under Sections 25(1-B) and 26 of the Arms Act and sentenced them accordingly.

12. The learned appellate court also considered the evidences on record and gave concurrent findings and recorded that two effective country made pistols were recovered from the possession of the petitioner and from perusal of Ext.-5, it transpired that A.S.I. had brought two country made pistols for test and both the pistols were found in order at the time of test.

Ext.-6 is the sanction letter for according sanction for prosecution of the offender. Ext.-2 is the seizure list and signature of the seizure list witnesses were marked as Ext.-1 and 1/1. The learned appellate court recorded that the official witnesses supported the prosecution case. The learned appellate court gave concurrent findings and upheld the conviction of the petitioner for offence under Sections 25(1-B) and 26 of the Arms Act.

13. This Court is of the considered view that the argument of the petitioner that the petitioner was not physically present at the time of recovery, has no bearing in the matter as the seizure was made from the shop of the petitioner and the seized arms were kept in concealed manner. Further, the materials exhibits were marked without any objection and there was no cross- examination from the side of the defence with respect to the seized articles. Further the seizure witnesses having turned hostile has no bearing in the matter in view of the fact that the official witnesses who were part of the raiding team have fully supported the prosecution case and were duly cross-examined but there has been no material contradiction in their evidence and the signatures of the seizure list witnesses are not in dispute.

14. This court is of the considered view that even when the seizure witnesses turned hostile, the evidence of the official witnesses including Investigating Officer, if otherwise credible, can be made the basis to believe the seizure. In the present case, evidence of the investigating officer and other witnesses who have supported the case of the prosecution and given consistent evidence have been relied upon by the learned courts below to convict the petitioner and considering the fact that the seizure witness did not support the case, but had admitted their signatures on the seizure list. This Court finds no illegality or

perversity with the aforesaid approach of the learned courts below.

15. In State of Kerala v. M.M. Mathew, (1978) 4 SCC 65, the Supreme Court held prima-facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. This view was reiterated by the Supreme Court in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302.

16. The Hon'ble Supreme Court in Rameshbhai Mohanbhai Koli and others -versus- state of Gujarat reported in (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 17, 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 Karnataka3 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.8, Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State................"

17. The Hon'ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 at para. 9 as under: -

"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."

18. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para. 13 as follows:

"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."

19. Considering the totality of the evidences on record, this Court does not find any illegality or perversity or irregularity in the impugned judgments of conviction passed by the learned

courts below calling for any interference in revisional jurisdiction. Accordingly, the conviction of the petitioner for offence under Sections 25(1-B) and 26 of the Arms Act is hereby upheld.

20. However, considering the fact that the present case is of the year 1998 and a considerable time has elapsed from the date of the incident and the present age of the petitioner is more than 59 years, this Court is of the considered view that ends of justice would be served, if the sentence of the petitioner is modified to some extent in relation to the offence under Section 25(1-B) of the Arms Act. Accordingly, the sentence of the petitioner is hereby modified and reduced to one-year rigorous imprisonment and fine amount is enhanced to Rs. 5,000/-.

21. The petitioner is directed to deposit the entire fine amount imposed under both the sections before the learned court below within a period of three months from the date of communication of a copy of this order to the learned court below. In case, the entire fine amount is not deposited within the stipulated time frame, the petitioner will serve the sentences as imposed by the learned court below.

22. Accordingly, the present revision application is disposed of with the aforesaid modification of sentence.

23. Bail bond furnished by the petitioner is hereby cancelled.

24. Interim order, if any, stands vacated.

25. Pending interlocutory application, if any, is closed.

26. Let the lower court records be immediately sent back to the learned court below.

27. Let a copy of this order be communicated to the learned court below through 'E-mail/FAX'.

(Anubha Rawat Choudhary, J.) Mukul