Suleman Ansari vs The State Of Jharkhand
2023 Latest Caselaw 2814 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr. Revision No.734 of 2016
Suleman Ansari                            ......          Petitioner
                          Versus
The State of Jharkhand          ....... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Shekhar Prasad Sinha, Advocate For the State : Mr. Prabir Kr. Chatterjee, Spl.PP

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By Oral Order in Court 05/Dated: 11th August, 2023

This Criminal Revision has been filed on behalf of the petitioner challenging the judgment dated 27.04.2016 passed in Cr. Appeal No.62 of 2016 by then learned Sessions Judge, Dhanbad by which the Criminal Appeal has been dismissed by affirming the judgment of conviction and order of sentence dated 29.02.2016 passed by Sri Anup Tirkey, Judicial Magistrate, Ist Class, Dhanbad in G.R. No.2792 of 2007, T.R. Case No.1726 of 2016 by which the petitioner has been convicted for the charges under section 25 a(1-

b) and 26 of the Arms Act and sentenced to undergo S.I for three (03) years and S.I for three (03) years respectively and to pay fine of Rs.10,000/- each.

2. The prosecution case, in brief, is that on 09.09.2007 the informant had received secret information regarding movement of one suspicious person. Thereafter, the informant along with other police personnel started investigation and when they arrived at Borio More he was informed that one Suleman Ansari was sitting on a tea stall, who on seeing tried to flew away but was apprehended and double barrel country made pistol and four live cartridges were recovered from the waist of the petitioner.

3. Learned counsel for the petitioner has submitted that the impugned judgments and order passed by the learned court below are illegal and not sustainable in the eye of law. It is submitted that the petitioner has been falsely implicated by the informant for none of his fault. It is submitted that the seizure list witness examined as P.W-1 and P.W-2 namely Bikas Mandal and Ramesh Chandra Gupta have been declared hostile. It is further submitted that even the informant P.W-5 has admitted during cross-examination at paragraph nos.31, 33 and 34 that seized fire arms were not sealed at the place of occurrence. It is submitted that the other prosecution witnesses are the police personnel. It is submitted that P.W-3 and P.W-4 namely Sanjay Das and Samsul Haque Khan are the police persons and who are interested witnesses. P.W-5 i.e. Jitendra Kumar is the informant of this case. It is submitted that P.W-6 is the Sergeant Major who had tested the fire arm. It is submitted that P.W-9, P.W-11 and P.W-12 namely Uma Charan Chaterji, Devi Singh and Sukra Oraon are also the members of the raiding party and under the influence of the informant. It is sub mitted that P.W- 10 is the I.O of this case who has submitted charge sheet against the petitioner in connivance with the P.W-5.

Alternatively, it is submitted that the petitioner has remained in custody from 09.09.2007 to 06.05.2008 and further remained in custody from 26.05.2017 to 08.06.2017 (i.e. for twelve days) and it is submitted that the petitioner has remained in custody for around 8 and ½ months and hence lenient view may be taken.

4. On the other hand, learned Spl. PP appearing for the State has submitted that the impugned judgments and order passed by the learned court below are fit and proper and hence no interference is required. It is submitted that the petitioner was caught raid handed with double barrel country made pistol and four live cartridges and which has been supported by the several prosecution witnesses. It

is submitted that the P.W-5 is the informant of this case who has fully supported the case. It is submitted that the P.W-3, P.W-4, P.W-9, P.W-11 and P.W-12 namely Sanjay Das, Samsul Haque Khan Uma, Charan Chaterji, Devi Singh and Sukra Oraon have also supported and corroborated the prosecution case regarding the recovery of the pistol and fire arms from the possession of the petitioner.

It is submitted that the P.W-6 is the Sergeant Major who has tested the fire arm and the live cartridges and found the fire arm and the live cartridges to be effective. It is submitted that even the pistol and cartridges were produced before the learned court below and which was marked as Material Exhibit-I and also Material Exhibit-II, II/1, II/2 respectively and Miss fire Arm cartridges were marked as Material Exhibit-II/3. It is submitted that P.W-7 has also supported the prosecution evidence and has stated that the materials were sealed in the red cloth when they were produced before the Sergeant Major. It is submitted that P.W-10 is the I.O of this case who has submitted charge sheet against the petitioner and hence the impugned judgments and order passed by the learned court below do not require any interference and this Criminal Revision Application may be dismissed.

5. Perused the Lower Court Records of this case and considered the submissions of the learned counsel for both the sides.

6. It transpires that while the informant was in patrolling duty in connection with Case No.236/2007 on 09.09.2007 at about 3.45 a.m. in the morning then he received secret information about this petitioner for moving with illegal weapon and thereafter he was apprehended with the help of the police personnel and recovered one double barrel country made pistol and four live cartridges and one miss fire cartridges on 09.09.2007 giving rise to Govindpur P.S. Case No.242 of 2007.

7. It transpires that the police submitted charge sheet against the petitioner namely Suleman Ansari under sections 25 a(1-b) and 26 of the Arms Act on 06.11.2007 and the then learned C.J.M, Dhanbad had taken cognizance against them under sections 25 a(1-

b) and 26 of the Arms Act.

8. After supplying the police papers to the petitioner, the charges were framed against the petitioner by the Judicial Magistrate, Ist Class, Dhanbad on 07.03.2008 under sections 25 a(1-b) and 26 of the Arms Act.

9. During trial the prosecution got examined twelve (12) witnesses, who are as follows:-

(i) P.W-1 is Bikas Mandal,

(ii) P.W-2 is Ramesh Chandra Gupta,

(iii) P.W-3 is Sanjay Das,

(iv) P.W-4 is Samsul Haque Khan,

(v) P.W-5 is Jitendra Kumar i.e. the informant,

(vi) P.W-6 is Sarju Lal Thakur i.e. the Sergeant Major,

(vii) P.W-7 is Krishna Yadav,

(viii) P.W-8 is Raj Kishor Yadav,

(ix) P.W-9 is Uma Charan Chaterji,

(x) P.W-10 is Pankhraj Nilus Indwar i.e. the I.O,

(xi) P.W-11 is Devi Singh and

(xii) P.W-12 is Sukra Oran.

10. During trial the prosecution has got marked the following documents, which are as follows:

(i) Exhibit-1 is signature of Ramesh Chandra Gupta on seizure list,

(ii) Exhibit-1/1 is signature of Sanjay Das on Seizure list,

(iii) Exhibit-1/2 is signature of Jitendra Kumar on Seizure list,

(iv) Exhibit-2 is Written report,

(v) Exhibit-3 is Seizure list,

(vi) Exhibit-1/3 is signature of Jitendra on written report,

(vii) Exhibit-4 is Register of F.I.R,

(viii) Exhibit-5 is Report of Sergeant Major,

(ix) Exhibit-6 is Requisition petition dated 30.09.2007 for examination of seized weapon country made pistol double barrel and cartridges,

(x) Exhibit-7 is Forwarding petition,

(xi) Exhibit-8 is Sanction report of D.C. and

(xii) Exhibit-9 is Formal Application.

11. The prosecution has further proved the material exhibits i.e. the pistol, live cartridges and the miss fire cartridges, which are as follows:

(i) Material Ext-I is Country made pistol,

(ii) Material Ext-II, II/1 and II/2 are Three live .315 bore cartridges,

(iii) Material Ext-II/3 is Miss fired cartridge .315 bore.

12. Thereafter the petitioner was examined under section 313 of the Cr.P.C to which he denied the circumstances put forth before him.

13. Neither any defence witness was examined nor any document was marked as exhibit on behalf of the petitioner.

14. Thereafter the learned Trial Court has convicted the petitioner as mentioned above and which was affirmed by the learned Appellate Court, hence this Criminal Revision Application has been filed.

15. It transpires from the FIR that though there is recovery of double barrel country made pistol and four live cartridges but the same were not sealed at the place of occurrence.

16. It further transpires that P.W-1 and P.W-2 namely Bikas Mandal and Ramesh Chandra Gupta are the seizure list witnesses and they have not supported the prosecution and have been declared hostile and as such their evidence are not reliable.

17. It transpires that P.W-3 is one Sanjay Kumar Das who is a Tempo Driver and another seizure list witness has also been declared hostile, who has proved his signature on the seizure list has been marked as Exhibit-1/1 and hence evidence of P.W-3 is not reliable.

18. It transpires that P.W-4 is Samsul Haque Khan, who is Sub-Inspector and a member of the raiding party and has supported the recovery of pistol and four live cartridges from the possession of this petitioner and has proved the self- statement of the informant marked as Exhibit-2 and the signature on the seizure list marked as Exhibit-3.

However, during cross-examination, he is silent on the point of sealing of the material exhibit and has claimed that the P.W-1 and P.W-2 were present. However, P.W-1 and P.W-2 have not supported the statement of P.W-4 and hence the evidence of P.W-4 is not reliable.

19. P.W-5 is Jitendra Kumar, the informant of this case and he has supported the prosecution case and stated about recovery of one country made pistol and four live cartridges from the possession of this petitioner. He has further proved Exhibit-1/2 and Exhibit-1/3 and Exhibit-4 respectively.

However, during cross examination at paragraph-31, 33 and 34 he has stated that the pistol and the cartridges recovered were not sealed. Hence, evidence of P.W-5 is not reliable.

20. P.W-6 is the Sergeant Major who has tested the fire arm and submitted test report marked as Exhibit-5. He has further proved the country made pistol marked as Material Ext-I, four cartridges marked as Material Ext-II, II/1, II/2 and Material Ext-II/3 respectively and the answer on the point of testing of the fire arm it was said to be effective.

He has further stated that the recovered articles were not produced before him in the sealed condition. He has further admitted that it was mentioned the symbol of K F factor on the bullets. Thus, evidence of P.W-6 is treated as

formal in nature and it is not clear as to whether he received the Fire Arm in the sealed condition or not?

21. It transpires that P.W-7 namely Krishna Yadav is a formal witness who has produced the Arms in red cloth.

22. It transpires that P.W-8 and P.W-9 namely Raj Kishore Yadav and Uma Charan Mahato are the police personnel and member of the raiding party and have supported the recovery of pistol and the four live cartridges from the possession of the petitioner.

23. It transpires that P.W-11 is Devi Singh, who was the Driver of the Police Vehicle but he has not supported the prosecution case on the point of recovery of the pistol, even he has failed to identify the petitioner before the court below and thus the P.W-11 has not supported the prosecution case.

24. P.W-12 is Sukra Oraon who is also member of the raiding party and has stated the fact of recovery of Desi Pistol and four live cartridges.

25. P.W-10 is the I.O of this case who has submitted the charge sheet against the petitioner and supported the fact of recovery of pistol and four live cartridges from the possession of the petitioner.

26. It further transpires from the evidence of P.W.5 i.e. the Informant and P.W-6 i.e. Sergeant Major that the seized materials were not sealed at the place of occurrence which is in complete violation of the judgment passed by the Hon'ble Supreme Court.

27. It has been held in the case of Amarjit Singh vrs. State of Punjab reported in 1995 Supp (3) SCC 217 and paragraph No.7 of the said judgment is as follows:-

"Para.7: The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not

to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW4 that he did not test-fire the revolver.

28. It has been held in the case of Sahib Singh vrs. State of Punjab reported in 1996 (11) SCC 685 and paragraph No.6 of the said judgment is as follows:-

"Para.6:- Having gone through the record we find much substance in each of the above contentions. Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is 6 not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility. We next find from the record that the arms and ammunition allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by PW 3 till it was sent to the Arms Expert for testing through Head Constable Baita Singh. This missing link also weakens the prosecution case. For all these

infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt."

29. It has been held in the case of Salim Akhtar @ Mota versus State of U.P reported in (2003) 5 SCC 499 and paragraph No.9 of the said judgment is as follows:-

"Para.9:- The evidence on record clearly shows that the pistol alleged to have been recovered from the polythene bag which was allegedly taken out from the mud by the appellant was not sealed on the spot. PW 1 in his cross- examination has stated that the pistol was not sealed as it was factory-made and in the recovery memo its "number" or "make" was not written as the same was not clear and legible. However, the cartridges and bomb and RDX were sealed. Similar statement has been given by PW 2 S.N. Tripathi and PW 4 S.P. Sharma that at the time when the pistol was deposited in the malkhana, the same had not been sealed. In the FIR, no details have been given to fix the identity of the pistol. PW 4 has stated that the same was of Chinese-make while PW 6 Tej Pal Sharma, Head Constable of PS Lisari Gate, where the recovered articles were deposited, has stated that the same was of English- make. In Amarjit Singh v. State of Punjab and Sahib Singh v. State of Punjab it has been held that the possibility of tampering cannot be ruled out where the recovered articles were not sealed on the spot. We are little surprised that though the 7 cartridges were sealed but the most important object, namely, the pistol was not sealed on the spot and the same was deposited as it is in the police station and, thereafter at the malkhana. In our opinion the fact that the pistol alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number nor its make etc. to fix its identity was mentioned in the recovery memo or in the FIR, raises considerable doubt regarding the factum of recovery."

30. Thereafter, in view of the discussion made above, this case appears to be a case of false implication.

31. Under the circumstances, the judgment dated 27.04.2016 passed in Cr. Appeal No.62 of 2016 by then learned Sessions Judge, Dhanbad and the judgment of conviction and order of sentence dated 29.02.2016 passed by Sri Anup Tirkey, the Judicial Magistrate, Ist Class, Dhanbad in G.R.

No.2792 of 2007, T.R. Case No.1726 of 2016 are set aside and the petitioner namely, Suleman Ansari is acquitted for the offences under section 25 a(1-b) and 26 of the Arms Act and the petitioner namely, Suleman Ansari is also discharged from the liability of his bail bonds.

32. Thus, the Criminal Revision No.734 of 2016 is allowed and stand disposed of.

Let the Lower Court Records be sent back to the learned court below at once.

(Sanjay Prasad, J.) Saket/-