Jharkhand High Court
Manoj Kumar vs The State Of Jharkhand ` on 6 September, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 50 of 2012
Manoj Kumar, Son of Sri Vijay Lal, Resident of Village Khudia
Kalimati, P.O. & P.S. Nirsa, District-Dhanbad.
... ... Petitioner
Versus
The 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. M. B. Lal, Advocate
For the Opp. Party : Mr. Manoj Kumar Mishra, A.P.P.
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Through: Video Conferencing
15/06.09.2021
1. Heard Mr. M. B. Lal, learned counsel appearing on behalf
of the petitioner.
2. Heard Mr. Manoj Kumar Mishra, learned A.P.P. appearing
on behalf of the opposite party-State.
3. This criminal revision application is directed against the
judgment dated 07.01.2012 passed by the learned District &
Sessions Judge-I, Dhanbad in Cr. Appeal No. 99/2011, whereby
the learned appellate court has dismissed the appeal preferred
by the petitioner by upholding the judgment of conviction and
order or sentence dated 09.05.2011 passed by the learned Judicial
Magistrate, 1st Class, Dhanbad in G.R. No. 3803/2008, T.R. No.
563/2011.
4. The learned trial court has convicted the petitioner for
offence under Sections 25(1-B)a and 26 of the Arms Act and
sentenced him to undergo rigorous imprisonment for two years
with a fine of Rs. 5,000/- for offence under Section 25(1-B)a of the
Arms Act and in case of default of payment of fine, he has been
further directed to undergo simple imprisonment for six months.
The petitioner has been further convicted for offence under
Section 26 of the Arms Act and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs. 3,000/- and in
case of default of payment of fine to undergo simple
imprisonment for three months. Both the sentences were
directed to run concurrently except the sentence of
imprisonment in default of payment of fine.
Arguments of the petitioner
5. Learned counsel for the petitioner submits that the
petitioner has remained in judicial custody for a period of about
11 months in connection with the present case. He also submits
that so far as the merit of the case is concerned, the seizure list
witnesses i.e., P.Ws. 2 and 4 have not supported the prosecution
case and they have turned hostile and there is no independent
witness in the present case to support the prosecution case.
Learned counsel submits that so far as co-accused, namely, Afzal
Alam is concerned, he has got no knowledge as to what
ultimately happened in his case and from perusal of the
impugned judgment, it appears that at the appellate stage in
Criminal Appeal No. 99 of 2011, the present petitioner was the
sole appellant.
Arguments of the opposite party-State
6. Learned counsel for the opposite party-State, while
opposing the prayer, has submitted that a supplementary-
affidavit has been filed giving the details of the criminal cases
against the petitioner, as mentioned in para-4 of the affidavit. He
submits that considering the facts and circumstances of this case
and also the concurrent findings given by the learned courts
below, the petitioner is not entitled to any interference in
revisional jurisdiction on the point of conviction as well as on the
point of sentence.
Findings of this Court
7. As per the prosecution story, which is based on fardbeyan
of the informant, S.I. Radhika Raman Minj, Officer-in-charge of
Nirsa Police Station, which was recorded on 27.12.2008 near
Mugma Railway Station Cabin at 23:45 hours, the informant was
posted as officer-in-charge of police station and on the aforesaid
date and time, he recorded his fardbeyan that while making
investigation of Nirsa P.S. Case No. 233/2008 dated 24.12.2008,
he came to know that some criminals have assembled near
Mugma Railway Station and planning to commit some offence.
The informant, in association with police raiding party of
different police officials and constables, proceeded to Mugma
Railway Station at 23:00 hours and he found near the Mugma
Railway Station Cabin that two boys were talking to each other
and they tried to flee away by seeing the patrolling party. The
police raiding team chased them and some nearby villagers were
also associated. The two persons were apprehended and were
searched by the police in presence of two independent witnesses,
namely, Guddu Ansari and Alam Ansari and their possession
was searched, before which the police officers also gave their
voluntary search, in which. Upon search of the two boys, one 9
mm country made pistol was recovered from the waist of Afzal
Alam beneath his full pant along with three live cartridges
loaded in it. The total description of the seized materials were
mentioned in the fardbeyan. Further on search of other boy,
namely, Manoj Kumar two live cartridges of 9 mm was
recovered from the right back of his full-pant and two mobiles
were also recovered from their possession. Both the
apprehended persons disclosed their name and on demand of
the papers of those articles by the police, they failed to submit
any authority or paper for having fire arms and live cartridges.
Consequently, treating it as illegal articles, the police seized all
the articles at the place of occurrence and arrested both the
accused persons.
8. On returning to the police station, the case was registered
as Nirsa P.S. Case No. 24/2008 dated 28.02.2008, G.R. Case No.
3802/2008. Both the accused persons were remanded in judicial
custody and one Chandan Kumar Singh, A.S.I. of the said police
station was given the charge of investigation. Upon
investigation, charge-sheet No. 241/09 was submitted on
28.12.2009 against the accused persons including the petitioner
for offence under Sections 25(1-B)a/35 and 26/35 of the Arms
Act and vide order dated 20.02.2009 cognizance was taken under
the same sections.
9. During the course of trial, altogether 13 witnesses were
examined on behalf of the prosecution; out of them, P.Ws. 2 and
4 are the seizure witnesses, P.W.-11 is the informant himself and
P.W.-5 is the investigating officer of the case and the other
witnesses were members of the raiding party. The following
documentary evidences were also produced before the learned
court below from the side of the prosecution: -
Exhibit 1 and 1/1 are the signatures of P.W.2 on the seizure list;
Exhibit 2 is the signature of B.N. Thakur on the seizure list;
Exhibit 3 is the signature of P.W.-4 on the seizure list;
Exhibit 4 is the sanction report of the D.C., Dhanbad;
Exhibit 5 is the writing and signature on the report of FSL by
P.W.-5;
Exhibit 6 is the signature of Sri A. K. Sahi and A. K. Balmiki on
the FSL report;
Exhibit 7 is the sealed box of FSL No. 1;
Exhibit 8 is the signature of the learned C.J.M. on P.S. 241/08;
Exhibit 9 is the signature of Radhika Raman Minj on the written
report;
Exhibit 10 is the writing and signature and self-statement of O.C.
Chandan Kumar Singh; and
Exhibit 9/1 is the writing and signature of O.C. of forwarding
and registering the case.
10. Apart from the aforesaid documentary evidences, material
exhibits were also produced before the learned court below.
Exhibit M/I is the pistol bearing No. 711. Exhibit M/II and M/III
are two cartridges. Exhibit M/IV and M/V is Nokia Mobiles.
Exhibit M/VI and M/V (I to IV) are cartridges.
11. After conclusion of the trial, the statements of the accused-
persons were recorded under Section 313 of Cr.P.C. and the same
was read over and explained to them, to which they claimed to
be not guilty. However, no defence witness was adduced on
behalf of the accused persons.
12. P.W. 2 is the seizure list witnesses. He has identified the
signature as Exhibit 1. This witness has stated that the accused
persons were arrest at the place of occurrence and he made
signature on arrest memo, which was marked as Exhibit 1/1.
P.W.-4 is also seizure list witness. He was the driver of patrolling
party, who had supported his signature on the seizure list, which
was marked as Ext.-3. P.W.-10 is the Sergeant Major, who had
stated that the seized articles were produced by the investigating
officer before him, which were examined and found as fire arms.
He identified the seized country made pistol as well as five live
cartridges. This witness was fully cross-examined and in his
cross-examination, he has stated that there is difference of
number on making of the pistol as USA 711 and USA 7111. P.W.-
13 was the formal witness, who had brought the two mobiles
before the court, which was not subject-matter of charges, but the
evidence proves that along with mobile phones fire arms were
also recovered. P.W.-11 was the informant of the case and has
fully supported the prosecution case. He exhibited the necessary
documents and fully supported the recovery of the incriminating
articles from the accused and preparation of seizure list, which
reflected seizure of arms and two mobile phones (one from each
of the accused persons). He has stated that the seizure list was
prepared in the writing of Shri B. N. Thakur. This witness was
also cross-examined, but it remain consistent. P.W.-5 is the
investigating officer of the case, who has fully supported the
prosecution case as narrated by the informant. This witness has
stated that recovered arms were sent to the Forensic Science
Laboratory for examination. He has named all other police
officials who were present at the time of occurrence. He has also
named the witnesses of the seizure list. He has also exhibited the
prosecution sanction. He has also exhibited various material
exhibits. In his cross-examination, he has categorically stated that
the pistol was recovered from the co-accused, namely, Afzal
Alam and he has also mentioned about the criminal antecedents
of the accused persons in the case diary as mentioned at para-29
of the evidence. He identified the material exhibit M/I i.e. the
country made pistol recovered from the possession of accused
Afzal Alam. So far as P.Ws.-1, 3, 6, 7, 8, 9 and 12 are concerned,
they were all part of the raiding party and they have fully
supported the prosecution case.
13. The learned trial court considered the materials on record
and also the arguments advanced on behalf of the defence
regarding discrepancy in the pistol recovered from the Afsal
Alam with regard to the serial no. and recorded its findings at
Para-27 of the judgment as under: -
"27. After careful consideration of the evidence, oral and
documentary available on record, hearing of rival submission
of both the parties, having regard to the facts of antecedent of
the accused persons and fact of raid, seizure and recovery of
the fire arms and live cartridges, without proper and valid
license or authority to the accused persons and after
meticulous examination of the seizure list and the report of the
Forensic Science Laboratory, it appears that there may be a
bonafide mistake in writing of serial number as USA 711 and
USA 7111. Therefore, when all other witnesses in evidence on
record are consistent in support of the alleged offence, only
omission of digit '1' in the last of the serial no. In the seizure
list cannot throw out the whole prosecution case. Especially
when, there is no prejudice against the accused in preparation
of seizure list and recovery of fire arms. It is cardinal principal
of criminal trial that there must not be any prejudice in the
case of the prosecution. In opinion of this court only omission
of digit '1' at the place of 711 when it may be either 711 or
7111 the fire arms is the same. This is not major discrepancies
rather this may be the mistake of pen or mistake due to lack of
proper light in the night at the time of recording of seizure list.
This discrepancy alone is not able to extend the benefit of
doubts in favour of the accused persons from other fact of the
case."
14. The learned trial court was of the view that the prosecution
has been able to prove the case against the accused persons
beyond shadow of all reasonable doubts for offence under
Section 25(1-B)a and 26 of the Arms Act and accordingly
sentenced them to undergo R.I. for two years for offence under
Section 25(1-B)a of the Arms and Act with a fine of Rs. 5,000/-
each and further sentenced to undergo R.I. for one year for
offence under Section 26 of the Arms Act with a fine of Rs.
3,000/-. Both the sentenced were with default clauses. So far as
Section 35 of the Arms Act is concerned, the same was not proved
as the raid was near Mugma Railway Station Cabin, which was
not a premise. Thus, the learned trial court convicted the accused
persons including the petitioner for offence under Section 25(1-
B)a and 26 of the Arms Act and acquitted the accused persons
including the petitioner for offence under Section 35 of the Arms
Act
15. So far as learned appellate court is concerned, it also
scrutinized all the materials on record and gave concurrent
findings by upholding the judgment of conviction and did not
interfere with the sentence.
16. From perusal of the records, it is apparent that it has come
in evidence that the seizure list was prepared at the place of
occurrence and the case as registered after returning to the police
station. The signature of the seizure witness-Alam Ansari (P.W.-
2) has been marked as Ext.-1 and signature of other seizure
witness, namely, Guddu Ansari (P.W.-4) has been marked as
Ext.-1/1. Accordingly, the argument of the learned counsel for
the petitioner that P.Ws.-2 and 4 have not supported the
prosecution case, is devoid of any merit. This Court further finds
that the other witnesses, who were the members of the raiding
party, have supported the prosecution case and the learned
courts below after scrutinizing the materials on record have
come to concurrent findings and have convicted the petitioners
for offence under Sections 25(1-B)a and 26 of the Arms Act.
17. This Court finds that there are concurrent findings
recorded by the learned courts below with regard to the
conviction of the petitioner for offence under Sections 25(1-B)a
and 26 of the Arms Act after scrutinizing the materials on record.
This Court does not find any illegality or perversity or material
irregularity in the impugned judgments and no illegality or
perversity, as such, has been pointed out by the learned counsel
for the petitioner. This Court is of the considered view that there
is no scope for re-appreciation of materials on record and coming
to a different finding in revisional jurisdiction. Accordingly, the
conviction of the petitioner for offence under Sections 25(1-B)a
and 26 of the Arms Act is hereby upheld.
18. This Court finds that an affidavit has been filed by the State
in the present case on 02.08.2021, wherein it has been mentioned
that there are altogether three cases against the petitioner which
are as follows: -
(i) Nirsa P.S. Case No. 241/2008 dated 28.12.2008 under
Sections 25(1-B)a/26/35 of the Arms Act (i.e., the
present case);
(ii) Nirsa P.S. Case No. 232/2008 dated 20.12.2008 under
Section 394 of IPC; and
(iii) Nirsa P.S. Case No. 233/2008 dated 24.12.2008, S.T. No.
259/2009 under Sections 394/302/34 of IPC and 27 of
the Arms Act.
19. Considering the aforesaid facts and circumstances of this
case, including the fact that a number of cases were registered
against the petitioner, this Court is of the considered view that
the petitioner does not deserve any sympathetic view with
regard to sentence. This Court is also of the considered view that
the learned courts below have appropriately passed the sentence
against the petitioner by well-reasoned orders and there is
neither any illegality nor perversity nor irregularity in the orders
passed by the learned courts below on the point of sentence.
Considering the totality of the facts and circumstances of this
case, this Court is not inclined to modify the sentence of the
petitioners in any manner and accordingly, the present revision
petition is hereby dismissed.
20. Bail bond furnished by the petitioner is hereby cancelled.
21. Interim order, if any, stands vacated.
22. Pending interlocutory applications, if any, are closed.
23. Let the lower courts record be sent back to the leaned court
concerned.
24. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Mukul
