Ganesh Kapri vs The State Of Jharkhand
2021 Latest Caselaw 3748 Jhar

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                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                             Cr. Revision No. 531 of 2012

                     Ganesh Kapri, S/o Amin Kapri, resident of village Bara
                     Baisari, P.O. & P.S.- Godda (M), District-Godda.
                                                           ...     ...    Petitioner
                                          Versus
                     The State of Jharkhand                ...     ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through: Video Conferencing

07/01.10.2021

1. Heard Mr. Ashish Kumar, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Ravi Prakash, learned counsel appearing on behalf of opposite party-State.

3. The present criminal revision application is directed against the judgment dated 24.05.2012 passed in Cr. Appeal No. 34/2008 by the learned Sessions Judge, Godda, whereby the judgment of conviction and order of sentence dated 28.07.2008 passed in G.R. Case No. 86/98 by the learned Judicial Magistrate, 1st Class, Godda has been dismissed and the conviction of the petitioner under Section 25(1-b) (a)/26 of the Arms Act has been affirmed.

4. The learned trial court has convicted the petitioner for offence under Section 25(1-b) (a)/26 of the Arms Act and sentenced him to undergo rigorous imprisonment for three years on each section. Both the sentences were directed to run concurrently.

Arguments on behalf of the petitioner

5. Learned counsel appearing on behalf of the petitioner submits that the impugned judgment of conviction passed by the learned trial court and upheld by the learned appellate court is not sustainable in the eyes of law and they suffer from

perversity. Learned counsel submits that P.W.-2 was the informant of the case who has also investigated the case and after alleged seizure, though the petitioner was produced before the court below, but the seized weapon was not produced and accordingly, there is violation of Section 52 of Cr.P.C. He also submits that the weapon was also not sealed. The learned counsel further submits that one of the seizure witnesses had expired and so far as the other witness is concerned, he had deposed in favour of the petitioner as defence witness and had denied his signature on the seizure list. The learned counsel submits that in such circumstances, the seizure has not been proved. Apart from the aforesaid submission, the learned counsel submits that the seizure was not made from the conscious possession of the petitioner which creates a doubt in the entire prosecution case and therefore, the impugned judgments be set-aside and the petitioner be acquitted.

Arguments on behalf of the opposite party-State

6. Learned counsel appearing on behalf of the opposite party-State, on the other hand, has referred to a judgment passed by the Hon'ble Supreme Court reported in [2020) 10 SCC 120 (Mukesh Singh vs. State (Narcotic Branch of Delhi)] and has referred to the findings of the Hon'ble Supreme Court at paragraph-13 with particular reference to paragraph 13.2 (ii) to submit that merely because the informant being a police party is also the investigator of the case, the same by itself is not enough to acquit the accused. He submits that therefore, evidence of P.W.-2, being the informant as well as the investigating officer of the case, is not fatal to the prosecution case. He has also submitted that no case was made out by the petitioner regarding any motive on the part of the raiding party to falsely implicate the petitioner in the offence. The learned

counsel submits that the witnesses who had deposed being a part of the raiding party have fully supported the prosecution case and they have been duly cross-examined.

7. The learned counsel has also submitted that the report of the weapon which was seized, as well as the sanction for prosecution, have also been exhibited before the learned court below, which were marked as Exthibits-1 and 5 respectively. It has come at paragraph 5 of the appellate court's judgment that the petitioner had not denied his signature appearing on the seizure list. The learned counsel submits that non-compliance of the provision of Section 52 of Cr.P.C. is not a material irregularity so as to acquit the petitioner on this ground alone, particularly when the other materials on record are there to support the prosecution case. He submits that two persons of the raiding party were examined before the learned court below as P.Ws. 2 and 3 respectively and P.W.-1 was the sergeant major. He submits that evidence of P.Ws. 2 and 3 is consistent and evidence of P.W.-1 corroborates the prosecution case and there is no perversity as such in the impugned judgments calling for any interference in revisional jurisdiction.

8. The learned counsel has also submitted that although initially an affidavit was filed before this Court that the petitioner has a criminal antecedent, but at the same time, a supplementary-affidavit has been filed to the effect that the petitioner does not have any other criminal antecedent apart from the present case.

Rejoinder arguments of the petitioner

9. In response, the learned counsel for the petitioner, without prejudice to the aforesaid submissions submits that the petitioner has faced the rigors of criminal case for about 23 ½ years and he has remained in custody from 05.02.1998 to 11.05.1998 during trial and from 04.07.2012 to 20.07.2012 during

the pendency of the present case and a few days must have been taken by him to furnish the bail bond in connection with the present case and also considering his present age i.e., about 63 years, the sentence of the petitioner be modified and be confined to the period already undergone by him in custody. Findings of this Court

10. After hearing the learned counsel for the parties, this Court finds that the case was instituted by the informant who along with other police personals had conducted the raid before the ensuing parliamentary election and he got information about assembly of five outsiders camping in the house of the petitioner-Ganesh Kapri for the last two days and consequently raid was conducted in the house of the petitioner and country made pistol was recovered from one of the rooms situated in west side. No valid papers were shown by the petitioner and accordingly, he was arrested. After investigation, charge-sheet was submitted against the petitioner for offence under Section 25(1-B) (a)/26 of the Arms Act and after taking cognizance, charges were framed against the petitioner under the same sections. The substances of accusation were explained to the petitioner to which he pleaded not guilty and claimed to be tried. After closure of prosecution evidence, the statement of the petitioner was recorded under Section 313 of Cr.P.C., wherein he claimed himself to be innocent.

11. In course of trial, altogether three witnesses were examined from the side of the prosecution and one witness was examined from the side of the defence.

12. So far as P.W.-1 is concerned, he was the sergeant major, who had examined the seized arms and found the arms effective. The report of the sergeant major has been marked as Ext.-1 and the sanction for prosecution was also exhibited and marked as Ext.-5.

13. So far as P.Ws. 2 and 3 are concerned, they were the part of the raiding team and P.W.-2 was the informant-cum- investigating officer of the case. These witnesses have fully supported the prosecution case with respect to search, seizure and recovery of arms, which was sent to the competent authority for examination, who had also deposed as P.W.-1 and fully supported the prosecution case. These two witnesses i.e., P.Ws. 2 and 3 have been fully cross-examined from the side of the defence and no such case has been made out from the side of the petitioner regarding any enmity or ill-will between the petitioner and the members of the raiding party including P.Ws. 2 and 3 so as to falsely implicate the petitioner.

14. So far as argument on behalf of the petitioner regarding non-compliance of Section 52 of Cr.P.C. is concerned i.e., non- production of the arm before the learned court below on 05.02.1998 when the petitioner was produced before the learned court below for the first time after his arrest, this Court is of the considered view that the alleged non-compliance of the said provision by itself cannot be a ground to acquit the petitioner particularly when there are other evidences on record to fully support the prosecution case. This Court further finds that this point was never specifically raised by the petitioner before the learned court below at any stage and has been taken for the first time before this Court. Even if, this aspect of the matter is taken into consideration the same is not material enough to disturb the concurrent findings recorded by the learned courts below, which have been passed after considering the materials on record and the fact remains that the arms was sent for examination by the competent authority and the signature of the petitioner on the seizure list is not in dispute.

15. So far as the seizure is concerned, one of the seizure witnesses had died and the other witness has deposed from the

side of the defence. The evidence of the defence witness has also been considered by the learned trial court vide paragraph 13 and the same has been disbelieved. The learned trial court has also taken into consideration that the defence witness, who was also one of the seizure witnesses, had filed an affidavit dated 26.02.1998 before the learned court below that police had taken his signature on 05.02.1998 at his residence and accordingly rejected the evidence of the defence witness who had deposed before the learned court below that neither any seizure had taken place in his presence nor he had put his signature on the seizure list. The appellate court also found that upon visual comparison the signatures of defence witness were found to be the same. Moreover, the other two official witnesses, P.Ws.-2 and 3 have fully supported the prosecution case even on the point of seizure and the seized arms were sent to P.W-1 who had examined it and fully supported the prosecution case. The appellate court also considered the contention that the informant is also Investigating Officer in the case, and found that the same was explained by stating that due to paucity of the Officer posted in the police station the informant could act and could be the Investigating Officer of the case.

16. The appellate court recorded its findings as follows: -

"Considering the above submissions of the parties and on perusal of lower Court's record it appears that the prosecution has adduced oral and documentary evidence in support of the case and defence has also examined one witness Jai Kant Kapri. It further appears that the Court below gave finding about the identification of the house of appellant and during raid a country made pistol was recovered from his house which was in exclusive possession of this appellant. Sergeant Major who has been examined as P.W. 1 has found the arms effective. It further appears that the District Magistrate has also granted Sanction in this

case through Ext.-5. The defence has examined one witness Jai Kant Kapri, he was one of the witnesses over seizure list who has deposed on behalf of the defence that his signature is not appearing in the seizure list. During cross-examination he denied that his signature which has been filed as witness is same from visual comparison. The contention that the informant is also Investigating Officer in this case, the I/C P.P. has submitted that due to paucity of the Officer posted in the police station the informant could act and may be the Investigating Officer. The Police Inspector Sri Narayan Singh, Officer-in-charge Godda(T) P.S. has duly authorised informant to investigate the case. In this situation I find and hold that there is no occasion to interfere in the impugned judgment. Accordingly, this Criminal Appeal No. 34/2008 Ganesh Kapri Vrs. State of Jharkhand is dismissed."

17. 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.

18. Considering the totality of the facts and circumstances of this case, this Court finds that the scope of interference in revisional jurisdiction is very limited and the learned courts below have given concurrent findings with regard to the offence committed by the petitioner after scrutinizing the materials on record. This Court does not find any illegality, perversity or materials irregularity in the impugned judgement of conviction of the petitioner calling for any interference in revisional jurisdiction. Accordingly, judgment of conviction

passed by the learned trial court and affirmed by the learned appellate court, is upheld.

19. From perusal of the judgment passed by the learned trial court, it appears that the learned trial court has recorded that the minimum sentence under Section 25(1-b) (a) of the Arms Act is three years and has given sentence for a period of three years. However, the minimum sentence under Section 25(1-b)

(a) of the Arms Act is one year which may extend to three years. So far as Section 26(1) of the Arms Act, which, interalia, deals with violation of section 3 of the Arms Act, is concerned, it provides for the minimum sentence of six months which may extend to seven years. Thus, the minimum sentences for which the petitioner has been convicted is one year and not three years.

20. Admittedly the petitioner does not have any criminal antecedent and this is the only case against the petitioner till date. This Court also finds that the petitioner has faced the rigors of criminal case for about 23 ½ years and has remained in custody for a period of about three months and 22 days and the present age of the petitioner is about 63 years. Considering the totality of the facts and circumstances of this case, this court is of the considered view that the sentence of the petitioner requires some modification to meet the ends of justice. Accordingly, the sentences of the petitioner are hereby modified and is reduced to one year with total fine of Rs. 5,000/- to be deposited by the petitioner within three months before the learned court below. If the fine amount is not deposited within the stipulated time frame, the petitioner would serve the sentence already imposed by the learned courts below.

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

22. Bail bond furnished by the petitioner is cancelled.

23. Interim order, if any, stands vacated.

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

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

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

(Anubha Rawat Choudhary, J.) Mukul