Heeralal Mirdha vs The State Of Jharkhand
2023 Latest Caselaw 3291 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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(Against the Judgment of conviction and order of sentence dated 09.02.2011 and 11.02.2011 respectively passed by the Sessions Judge, Godda in S.T. No.41 of 2010)

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          Cr. Appeal (S.J.) No.199 of 2011
Heeralal Mirdha.                   ...        ...Appellant
                    Versus
The State of Jharkhand             ...        ...Respondent
                    With
          Cr. Appeal (S.J.) No. 459 of 2011
Manoj Murmu                        ...        ...Appellant
                    Versus
The State of Jharkhand             ...        ...Respondent
                    With
          Cr. Appeal (S.J.) No. 460 of 2011
Polus Soren                        ...        ...Appellant
                    Versus
The State of Jharkhand             ...        ...Respondent
                    With
          Cr. Appeal (S.J.) No. 537 of 2011
Patras Soren                       ...        ...Appellant
                    Versus
The State of Jharkhand             ...        ...Respondent
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                    PRESENT
     HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellants : Mr. Aashish Kumar, Advocate.

: Md.Asghat, Amicus Curiae : Mr. Ranjan Kumar Singh, Advocate.

For the State : Mr. Ravi Prakash, Spl. P.P.

: Mr. Sanjay Kumar Srivastava, A.P.P.

: Mr. Shree Prakash Jha, A.P.P.

: Mr. Jitendra Pandey, A.P.P.

: Mr. Subodh Kumar Dubey, A.P.P.

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C.A.V. on 10.08.2023 : Pronounced on 31.08.2023

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Since all the Cr. Appeals arise out of the same impugned

Judgment, they are taken up together and are being disposed of

by this common Judgment.

2. The instant Criminal Appeals are directed against the

Judgment of conviction dated 09.02.2011 and order of sentence

dated 11.02.2011 passed by the learned Sessions Judge, Godda

in S.T. No.41 of 2010 whereby the appellants have been convicted

under Sections 399/402 of I.P.C. and sentenced to undergo R.I.

for 09 years and a fine of Rs.10,000/- and in default to undergo

S.I. for six months for the offence under Section 399 of I.P.C. and

sentenced Rigorous Imprisonment for seven years and a fine of

Rs.5,000/- each and in default S.I. for three months under

Section 402 of I.P.C. Both the sentences were directed to run

concurrently.

3. The brief facts of the prosecution case are that on

09.11.2009 in the morning at 9:15 the informant along with Dy.

S.P. Mr. Anil Kumar Verma and other police personnel along with

armed force who had come at the Police Station, Deodarn

proceeded from the Police Station at 9:30 for Agia Bandh. As they

reached near the Deodarn turn received the secret information

that 3 to 4 suspected persons had gone by Maruti Car towards

Deodarn Sundermara Road they all proceeded there and saw a

grey colour car parked there at the distance of 50 yard and also

saw isolated place in a Jungle 5 persons sitting under the Palas

tree who were smoking cigarette and also drinking wine and were

talking that it was too late that their one aide Bhagat Murmu had

not come and it was a time of opening the Bank and on being

belated the mob will be there. They were making preparation to

commit the offence. The Police Officer Awadhesh Kumar Singh,

the informant Mahendra Bandra, Sub-Inspector Sanjay Kumar

Malviye and Sub-Inspector Niranjan Tiwari all the four

apprehended one by one to the four accused persons and the car

was also surrounded by the force in which a female was sitting on

the back seat. Those who were apprehended were identified as

Manoj Murmu, who was apprehended by the Police Officer

Awadhesh Kumar Singh and from his possession one country

made pistol in which barrel .303 live bullet was also loaded along

with other articles were recovered. Sub-Inspector Niranjan Tiwari

apprehended Patras Soren from whose possession one country

made pistol and .303 live cartridge loaded therein was also

recovered along with other personal articles. Hira Lal Mirdha was

apprehended by Sub-Inspector Sanjay Kumar Malviye and from

his possession one country made pistol and one .303 live cartridge

loaded therein was also recovered along with other personal

articles. Polus Soren was apprehended by the informant

Mahendra Bandra and from his possession one musket firearm in

which barrel was 8 mm. bullet along with 5 mm live bullet in a

bag was recovered. All these apprehended accused were searched

in presence of independent witnesses. Thereafter reached to the

Maruti car bearing registration No. WB02A8707 on which rear

seat a female was sitting and in presence of the witnesses she was

also searched and three 8 mm bullet were found in a polythene

lying in beside her and two 8 mm and one .303 live bullet were

found in dickey along with other cigarette packets, match box and

empty bottle of wine. All the accused persons confessed that they

had looted Deodarn Gramin Bank and Chandana State Bank and

on 06.11.2009 was to loot the Chandana State Bank but due to

the gate being closed of the cash room they had come back. Next

day on 07.11.2009 they went by two motorcycles. The six accused

persons went by the two motorcycles to Chandana Bank and cash

was looted from there. The looted amount was distributed among

them and the cash box was thrown away and at that time they

were making preparation to loot the Deodarn Gramin Bank at 2

O'clock in day time and were waiting for their one aide and that

they were nabbed by the Police. No valid document of the

recovered armed weapons and the bullet could be shown by them

and this F.I.R. was lodged with the Police Station concerned under

Sections 399/402 of the Indian Penal Code and also for 25 (1) (b)

(a)/26/35 of Arms Act against all the six accused Manoj Murmu,

Patras Soren, Polus Soren, Heera Lal Mirdha, Mary Josfin and

Md. Salim.

4. The I.O. investigated the matter and filed charge-sheet under

Sections 399/402 I.P.C. in Case Crime No. 211/2009 against the

accused Manoj Murmu, Patras Soren, Polus Soren, Hiralal Mirdha

and Md. Salim. But the accused, Mary Josfin was the juvenile so

her charge-sheet was filed before the Juvenile Justice Board.

5. The trial court framed charge against all the five accused

Manoj Murmu, Patras Soren, Polus Soren, Hiralal Mirdha and Md.

Salim for the offence under Section 399/402 of I.P.C. All these

accused persons denied the charge and claimed to face the trial.

6. On behalf of prosecution to prove the charge against the

accused persons in documentary evidence filed Ext. 1 to 1/3 (Four

seizure memo made by Mahendra Bandra); Ext. 2 (signature of

Ravindra Besra on seizure memo); Ext.2/1 (signature of Lakhilal

Soren on seizure memo), Ext. ¼ (signature of Surendra Hansda

on seizure memo (Ext.1), Ext. 1/5 (signature of Niraj Kumar on

seizure memo (Ext. ½), Ext. 1/6 (signature of Balram Sen on

seizure memo (Ext. ½), Ext.3 (Confessional statement of Hiralal

Mirdha, Ext. 3/1 (confessional statement of Manoj Murmu), Ext-

3/2 (confessional statement of Patras Soren, Ext. 3/3

(confessional statement of Polus Soren), Ext. 1/7 (seizure memo),

Ext. 1/8 (seizure memo), Ext.4 (written application of Mahendra

Bandra), Ext. 4/1 (forwarding endorsement on written

application), Ext. 4/2 ( case registration endorsement on written

application), Ext.5 ( Para 1 to 79 of case diary), Ext.6 (formal

F.I.R.).

7. In oral evidence examined P.W.1 Baleshwar Oraon, P.W.2

Jogender Singh, P.W.3 Rajdev Paswan, P.W.4 Babulal Prasad,

P.W.5 Lakhan Marandi, P.W. 6 Rabindra Besra, P.W.7 Mosilal

Soren, P.W.8 Wakil Chandra Dey, P.W.9 Sameer Kumar Raj,

P.W.10 Surendra Hansda, P.W.11 Niraj Kumar, P.W.12 Nipen

Modi, P.W. 13 Balaram Sen, P.W. 14 Awdhesh Kumar Singh,

P.W.15 Sanjay Kumar Malaviya, P.W. 16 Brij Bihari, P.W.17

Mahendra Bandra, P.W.18 Niranjan Tiwari, P.W.19 Ravindra

Prasad Singh.

8. The statement of the accused persons was recorded under

Section 313 of Cr.P.C. All the accused persons denied the

incriminating circumstances against them and told themselves to

be innocent.

9. No defence evidence was adduced on behalf of the accused

persons.

10. The learned trial court after hearing the rival submissions

made by the learned Counsel for the parties, passed the impugned

Judgment of conviction on 09.02.2011 and sentenced holding the

guilty to all the accused persons for the charge under Sections

399 and 402 of I.P.C. and sentenced vide order dated 11.02.2011

for the charge under Section 399 of I.P.C. 09 years rigorous

imprisonment and a fine of Rs. 10,000/- each and in default of

payment of fine additional imprisonment six month was to

undergo and for the charge under Section 402 of I.P.C. punished

with imprisonment of 07 years R.I. and a fine of Rs. 5,000/- each

and in default of payment of fine three months additional

imprisonment was to undergo and all these sentences were to run

concurrently.

11. Aggrieved from this impugned Judgment of conviction dated

09.02.2011 and sentence dated 11.02.2011 these Cr. Appeals

were preferred on behalf of the appellants on the ground that the

impugned Judgment of conviction and sentence passed by the

court-below is based on the perverse finding. The learned trial

court had not appreciated the evidence on record in a proper

perspective. There is no evidence against the appellants in regard

to making preparation of dacoity and assembling for the same.

The impugned Judgment is based on the conjectures and

surmises. Accordingly prayed to set aside the impugned

Judgment and to allow these appeals acquitting all the

appellants/convicts from the charge levelled against them.

12. I have heard the learned Counsel of the appellants in all the

above appeals and also the learned A.P.P. on behalf of the State

in their respective appeals and perused the material on record.

13. In order to decide the legality and propriety of the impugned

Judgment of conviction and sentence passed by the court-below I

avert to the evidence adduced on behalf of the prosecution which

is reproduced hereinbelow:

14. P.W.1 Baleshwars Oraon in his Examination-in-chief stated

that on 09.11.2009 at 9:15 he along with police personnel and

police force went to Deodarn after having received secret

information in regard to the Maruti car which has gone towards

Sundermara while on their way to Sundermara near Jabtitarn

they reached to the Jungle and under the Palas tree found a

Maruti car parked there. This car was seen at the distance of 50

yard in which a girl was sitting and at the distance of 10 yard from

the Maruti car 5 persons were sitting. All the five were

apprehended at the spot and during search from Manoj Murmu

recovered a country made pistol .303 bore two live cartridge

loaded therein and the seizure memo was prepared of all the

recovered articles from his possession in presence of the

witnesses. The seizure memo was prepared by Mahendra Bandra

marked Ext.1. He was not familiar with the accused persons prior

to this occurrence.

14.1 P.W.2 Jogender Singh in his Examination-in-chief

corroborated the prosecution story and stated that in presence of

independent witness from the possession of Manoj Murmu one

country made pistol loaded with live cartridge along with other

personal articles were recovered while from the possession of

Polus Soren one firearm arm musket containing therein 5 live

bullets in a plastic bag were recovered.

In cross examination this witness stated except the

weapon no other instrument of loot was recovered from the

accused persons. All the independent witnesses reached at the

place of occurrence after the police had nabbed the accused

persons.

14.2 P.W.3 Rajdev Paswan in his Examination-in-chief

supported the prosecution story and stated that all the accused

persons were surrounded by the police at the place of occurrence

and from the possession of Manoj Murmu one country made pistol

along with live bullet was recovered. From the possession of

Patras Soren one country made pistol loaded with live bullet and

from the possession of Polus Soren one musket in a plastic bag 8

mm five live bullets and from the possession of Heeralal Mirdha

one loaded country made pistol was recovered. From possession

of Md. Salim no weapon while from the possession of Mary Josfin,

who was sitting in the Maruti car. in a polythene bag live bullets

of .303 mm were recovered. This witness stated that the bullet

which was recovered from Heeralal Mirdha was opened in his

presence.

14.3 P.W.4 Babulal Prasad in his Examination-in-chief

supported the prosecution version.

In cross-examination this witness stated that all the accused

persons were nabbed at the place of where they were sitting. All

the accused persons were talking in regard to loot of the Bank.

14.4 P.W.5 Lakhan Marandi supported the prosecution version

in substance and in cross-examination stated that he had seen

all the accused persons for the first time on the date of occurrence

and stated that Darogaji did not interrogate him.

14.5 P.W.6 Ravindra Besra is the witness of seizure memo

(Ext.2). He stated that he is not aware in regard to the occurrence.

His signature were taken on a blank paper.

14.6 P.W.7 Masi Lal Soren is also the witness of seizure memo

(Ext. 2/1). Though he identified his signature on the same but he

is not aware in regard to the occurrence. His signature were taken

on blank paper. This witness was also declared hostile.

14.7 P.W.8 Wakil Chandra Dey is the witness of seizure memo.

He stated that his signature were taken on a blank paper. Nothing

was recovered in his presence. This witness was also declared

hostile.

14.8 P.W.9 Sameer Kumar Raj is also the witness of the seizure

memo. He stated that his signature were taken on a blank paper.

Nothing was recovered in his presence. He was also declared

hostile.

14.9 P.W.10 Surendra Hansda is the witness of seizure memo

(Ext.1) and stated that his signature were taken on a blank paper

and stated that nothing was recovered in his presence. He is not

aware in regard to the occurrence. He was also declared hostile.

14.10. P.W.11 Niraj Kumar is the witness of the seizure memo

and stated that his signature were taken on a blank paper. He is

not aware in regard to the occurrence. He was declared hostile.

14.11 P.W.12 Nipun Modi also stated that his signature were

taken on a blank paper was declared hostile and showed his

unawareness in regard to the occurrence.

14.12. P.W.13 Balram Sen also stated that his signature were

taken on a blank paper. Nothing was recovered in his presence.

He was declared hostile.

14.13 P.W.14 Awadhesh Kumar Singh in his Examination-in-

chief stated that on 09.11.2009 at 9 am he proceeded leading the

police party from Deodarn and received the secret information in

regard to Maruti car going towards Sundermara and reached

towards Sundermara and near the Agia Band reached to the

Jungle found a Maruti car parked thereon, same was surrounded

and 5 persons who were smoking cigarette and were also drinking

wine apprehended there. They were planning to commit dacoity.

All the accused persons apprehended at the spot and from their

possession arms and other personal articles were recovered.

Seizure memo was prepared in presence of the independent

witness.

This witness in his cross examination stated that he

apprehended Manoj Murmu from whose possession a country

made pistol loaded with live cartridge was recovered. He had

heard the conversation of the accused persons at the distance of

20 yard.

14.14 P.W.15 Sanjay Kumar Malviya also corroborated the

prosecution story and in cross examination stated that the

accused persons were sitting at the distance of 10 yard from the

Maruti car where it was parked and he saw Heeralal Mirdha at

the distance of 15 to 20 yard. He saw all the accused persons for

the first time on the very day of occurrence.

14.15 P.W.16 Brij Bihari in his Examination-in-chief supported

the prosecution story and in cross-examination stated that I.O.

had interrogated him on the day of occurrence but nowhere his

signature were taken.

14.16 P.W.17 Mahendra Bandra is the informant and he in his

Examination-in-chief supported the prosecution story thoroughly

and in cross examination this witness stated that he had talked

to the I.O. of Chandana Bank Dacoity case and had requested him

to take the recovered money of the dacoity. Before making the

search of all the accused persons, the police personnel did not

give their search.

14.17 P.W.18 Niranjan Tiwari supported the prosecution story.

In cross examination this witness stated that they had seen the

accused persons at the distance of 50 to 60 yard at the place of

occurrence.

14.18 P.W.19 Ravindra Prasad Singh is the Investigating Officer.

He stated that he took over the investigation of the occurrence. He

prepared the site plan. He recorded the statement of the witnesses

and thereafter filed charge-sheet.

15. Before appreciation of the evidence on record it would be

pertinent to mention here to reproduce certain statutory

provisions of Indian Penal Code, 1860 which are given

hereinbelow:

Section 391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so

committing, attempting or aiding, is said to commit "dacoity".

Section 393. Attempt to commit robbery.- Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 399. Making preparation to commit dacoity.- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Section 402. Assembling for purpose of committing dacoity.-Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

16. In case in hand as per prosecution case all the accused

persons who were more than 5 had assembled in a solitude place

at Jungle and were alleged to preparing to commit dacoity and

had assembled for that purpose. The secret information of the

same was received by the informant. Accordingly, raid was carried

out at the indicated place along with police force. The Maruti car

was also seized at the place wherein a lady who was also one of

the aide along with the accused who were preparing to commit

dacoity and had assembled for the same was also sitting in the

Maruti car. The weapons are alleged to be recovered from the four

accused persons. From the possession of Manoj Murmu one pistol

was recovered along with bullets and from possession of Patras

Soren also one pistol was recovered. From Heeralal Mirdha also

recovered one pistol and from Polus Soren was recovered a gun

broken in three parts.

17. On behalf of the prosecution to prove the charge under

Section 399 and 402 of I.P.C. against the accused persons in

oral evidence examined 19 witnesses. So far as the recovery of the

arms and the bullets from the four accused are concerned their

Ext.- M.O. VII is in regard to the seizure memo of the pistol from

the possession of Manoj Murmu, Ext. M.O. XVII is the pistol

recovered from the possession of Heeralal Mirdha, Ext. M.O. XII

is the pistol recovered from the possession of Patras Soren and

Ext. M.O. XXIV is the gun broken in three parts recovered from

the possession of Polus Soren. The seizure memo Material Ext.

were produced during trial by the prosecution witness. The

seizure memo in regard to the recovered weapon are Ext. 1/7,

1/8. The seizure memo in regard to articles recovered from Polus

Soren is Ext.1. The witness of this seizure memo are Surendra

Hansda and Vibhuti Mandal. Ext. 1/1 is the seizure memo. The

independent witness of the seizure memo are Ashok Kisku and

Satya Narayan Mirdha. Ext. ½ is the seizure memo in regard to

the articles recovered from Patras Soren. The independent witness

of the seizure are Niraj Kumar and Balram Sen. The seizure memo

in regard to the articles recovered from the possession of Heeralal

Mirdha Ext. 1/3. The independent witness of the seizure memo

of the same are Sataya Narayan Mirdha and Sukhdeo Soren. The

seizure memo Ext. 1/7 is in regard to the articles recovered from

the place of occurrence on the confessional statement of Manoj

Murmu and Patras Soren. The independent witness of the same

are Rabindra Besra and Masilal Soren. The seizure memo Ext.

1/8 is in regard to the articles recovered.

18. So far as the seizure memo of the recovered articles are

concerned, all the independent witness of the seizure memo

have turned hostile. P.W.6 Rabindra Besra, P.W.7 Masilal

Soren, P.W. 8 Wakil Chandra Dey, P.W.9 Sameer Kumar Raj,

P.W. 10 Surendra Hansda, P.W.11 Niraj Kumar, P.W. 12 Nipen

Modi, P.W. 13 Balram Sen have turned hostile and all these

witnesses have stated that their signature were taken on

blank paper. Nothing was recovered from the possession of

the accused persons in their presence. All these witnesses

also expressed their unawareness in regard to the occurrence.

The rest of the independent witness of the recovery memo were

not examined on behalf of the prosecution to prove the recovery

memo of the recovered articles from the accused persons.

19. So far as the offence making preparation of dacoity at the

place of occurrence by all the accused persons and also

assembling with object to commit dacoity is concerned though

the police personnel have proved the seizure memo in regard

to the recovered articles; yet none of the independent witness

of the seizure memo had proved the seizure memo in regard

to the recovered articles from the accused persons.

20. P.W.1 Baleshwar Oraon, P.W. 2 Jogendra Singh, P.W. 3

Rajdeo Paswan, P.W.4 Babulal Prasad, P.W. 5 Lakhan Marandi,

P.W. 14 Awadhesh Kumar Singh, P.W.15 Sanjay Kumar

Malviya, P.W. 16 Brij Bihari, P.W.17 informant Mahendra

Bandra though all these witnesses have corroborated the

prosecution story in their Examination-in-chief; yet in cross

examination none of the witness has stated that at the place

of occurrence what talks were being exchanged by the

accused persons in regard to making preparation to commit

dacoity. Except P.W.17 Mahendra Bandra all these witnesses

have expressed their unawareness in regard to the talks going

on between the accused persons while making preparation to

commit dacoity. Mahendra Bandra has stated that he had

heard that all the 5 accused persons who were sitting at the

distance of 10 yard from Maruti Car were smoking and also

drinking wine and they were talking that they had to go to

the Bank and one of their aide has not come and on being late

of him there was possibility of gathering the mob at the Bank.

All these witnesses have stated that they have seen the accused

persons and the Maruti car parked in the Jungle at the

distance of 20 to 25 yards. Therefore none of the witness has

stated that what the accused persons were preparing to

commit dacoity to which Bank. All these witnesses have

stated that they have seen all the accused persons for the

first time at the place of occurrence. There is nothing on

record to show that the accused persons has assembled there

with object to commit dacoity.

21. So far as the recovery is concerned none of the independent

witness adduced on behalf of the prosecution have proved the

seizure memo of the recovered arms. So far as the recovery of

arms from the possession of four accused Manoj Murmu,

Patras Soren, Heeralal Mirdha and Polus Soren is concerned,

there is nothing on record that the arms which were

recovered were in working condition and these recovered

arms which were produced before the trial court during

examination the witnesses have accepted that these articles

were not sealed in any cloth and there was no specimen seal

in regard to the particulars of the case crime. Further so far

as the bullets which are alleged to be recovered from the

accused Manoj Murmu, Patras Soren, Polus Soren and from

Heeralal Mirdha are concerned, the same were not sent to

F.S.L. whether the same were live or not. There is no F.S.L.

report on record. So far as the testimony of the police personnel

in regard to recovery of the arms is concerned, there is also

contradiction in the statement of these police personnel also.

22. The Hon'ble Apex Court held in Sunder vrs. State of (NCT

of Delhi) (2002) 6 SCC 593:

6. In support of the second contention, learned counsel for the parties have taken us through the testimony of PWs 2, 3 and 6. PW 2 is Head Constable Chand Singh, PW 3 is Inspector Ram Pal Sharma and PW 6 is SI Om Prakash. The testimony of PW 3 has no relevance insofar as the recovery from the appellants is concerned. According to the case of the prosecution, knives were recovered from the appellants. The recovery of knives is evidenced by Recovery Memos PW 2/P (in respect of Sunder) and PW 2/Q (in respect of Satbir Singh). The recoveries were sought to be proved in the testimony of PW 2 Chand Singh. The said witness was, however, declared hostile. We have examined his testimony. It is not possible and safe to place any reliance on the testimony of PW 2. The aforesaid two documents of recovery are witnessed by Head Constable Prakash Chand and ASI Rajbir Singh besides PW 2. Despite the fact that PW 2 was declared hostile, the prosecution did not think it appropriate to examine the aforesaid other two witnesses of the recovery memos or at least one of them. Out of the three witnesses of recovery, the seniormost was ASI, the other being two Head Constables. We have also examined the testimony of PW 6 SI Om Prakash. There are material contradictions in the testimony of PW 2 and PW 6. Under these circumstances, we have no option but to hold that the seizure of knives from the appellants has not been proved.

7. Learned counsel for the State submits that in view of the decision in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] the recovery against the appellants also stands proved. In the said decision the Court relying on the aforesaid prosecution witnesses held that the seizure of the firearms against the appellants before the Court in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] stood proved. We are not concerned with the seizure of the firearms. Regarding recovery of knives except a passing reference there is no discussion in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] . In any event, we are not concerned in these appeals with the question of recovery

of firearms or knives from Suleman, Chiman or Sadhu Ram, the appellants in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] . In the present appeals, we are concerned with the recovery of the knives from the two appellants. It cannot be said that since the recovery against the three appellants in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] was held to be proved, it is not open to the appellants in the present appeals, to urge to the contrary. These appellants were not parties in Suleman case [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] and factual finding therein cannot bind them. Keeping in view Suleman [(1999) 4 SCC 146 : 1999 SCC (Cri) 515] judgment, with the assistance of learned counsel for the parties, we minutely examined the original case record since the State had not filed the record as was required by it under the rules. On examination thereof, we have no doubt that the recovery from the appellants of the knives has not been proved and, therefore, their conviction under Section 25 of the Arms Act cannot be maintained.

23. The Hon'ble Apex Court held in Jasbir Singh @ Javri @

Jabbar Singh vrs State of Haryana (2015) 5 SCC 762:

11. Having considered the submissions of the learned counsel for the parties and after going through the papers on record, we are of the view that none of the charge in the present case, against the appellant, can be said to have been proved beyond reasonable doubt. In this connection, we would like to quote following observations of the High Court, made in the impugned judgment, after reappreciating the evidence:

"The statement of ASI Sube Singh and HC Ram Singh cannot be believed to the effect that they had overheard the conversation of the accused, details of which are given above to show that the accused were discussing their plan in detail to commit dacoity on the liquor shop, situated at Meerut Road, Karnal. It is apparently exaggeration and padding on the part of the investigating officer."

12. Strangely, even after observing as above, the High Court has believed the prosecution story in respect of the offences punishable under Sections 399 and 402 IPC, and one in respect of the offence punishable under Section 25 of the Arms Act. The High Court has erred in law in not taking note of the following facts apparent from the evidence on record:

(i) In a daylight incident of 1.20 p.m. within the limits of City Police Station, Karnal, there is no public or any other independent witness of the arrest of the appellant along with other accused from the place of incident nor that of the alleged recovery of firearm which is said to have been made from the two of them. (It is not a case where arrest or recovery has been made in the presence of any gazetted officer.)

(ii) The complainant (PW 6) has himself investigated the crime, as such, the credibility of the investigation is also doubtful in the present case, particularly, for the reason that except the police constables, who are subordinate to him, there is no other witness to the incident.

(iii) It is not natural that the six accused, four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before they were apprehended by the police.

(iv) It is strange that all the accused were wearing blue shirts, as if there was a uniform provided to them.

(v) It is hard to believe that the appellant and three others did not try to run away as at the time of the noon they must have easily noticed from a considerable distance that some policemen were coming towards them. (It is not the case of the prosecution that police personnel were not in uniform.)

24. The Hon'ble Apex Court held in Suleman & Anr. vrs. State

of Delhi (1999) 4 SCC 146:

4. To prove why the five accused had assembled at the Dharamshala of Sarup Nagar, the prosecution had mainly relied upon the evidence of PW 2 who was the only witness who had gone near the Dharamshala and heard conversation amongst the accused. He was accompanied at that time by ASI Bhagat Ram but the prosecution did not examine ASI Bhagat Ram as a witness. PW 2 Head Constable Chand Singh in his examination-in-chief did not depose anything about the conversation. He was declared hostile and permitted to be cross-examined by the learned Public Prosecutor. In cross- examination, he stated that the conversation which he had heard and reported to Sub-Inspector Om Prakash was about looting a petrol pump. According to this witness, he had remained near the Dharamshala for about 15 minutes. His further cross-examination on behalf of the accused discloses that when he had gone near the Dharamshala, it was dark as there was no light either inside or nearby. The Dharamshala consisted of only one room and it had only one door and no window. He had stood outside that room and a little away from the door. He had not told anything more than that five persons inside the Dharamshala were planning to rob a petrol pump that night. He had not narrated what they had spoken or discussed. It is also doubtful that they were speaking so loudly that their conversation could be heard outside. It is also surprising as to how he could have reported to SI Om Prakash that two of them had pistols and the remaining three had knives. As the evidence discloses, the weapons were kept concealed on their persons and there was complete darkness inside the room. PW 2 had not even gone near the door. This would clearly indicate that PW 2 was not telling the truth when he stated that he had heard the accused talking about looting a petrol pump. It is, therefore, not possible to sustain the conviction of the appellants under Sections 399 and 402 IPC. Their conviction under Sections 399 and 402 IPC will have to be set aside.

5. But as regards possession of arms, the evidence of all the three witnesses is consistent. A revolver was found from Sadhu Ram, a pistol from Suleman and knives from the remaining three. The revolver carried by Sadhu Ram was found loaded with five live

cartridges and the pistol of Suleman was found loaded with one live cartridge. The report of the Central Forensic Science Laboratory shows that the revolver was in a working condition and all the five cartridges were live cartridges. The pistol was not in working order in the sense that the firing mechanism was found defective. The cartridge found from it was a live cartridge. Live cartridge is an explosive within the meaning of Section 5 of the TADA Act. Therefore, even if evidence regarding possession of pistol by Suleman is ignored, his conviction under Section 5 can be sustained. We see no reason to doubt the evidence of PWs 2, 3 and 6 regarding their having apprehended the appellants and seized from them the firearms.

25. In view of the above legal propositions as laid down by

Hon'ble Apex Court and also keeping in view the ingredient of the

offence under Sections 391,393, 399 and 402 of the I.P.C. in the

case in hand the testimony of the witnesses of police personnel

who have stated that they had heard the accused persons in

regard to making preparation to commit dacoity at the distance of

20-25 yards; but no one prosecution witnesses who were

examined on behalf of the prosecution could state that the

accused persons were making preparation to commit dacoity,

when and where they were to commit dacoity for which they were

making preparation except informant, none of the prosecution

witness could state that they had heard the talks which the

accused persons were exchanging at the place of occurrence. Only

the informant has stated that he had heard at the distance of 20

to 25 yards, the same is not found trustworthy reason being he

could not state the specific details in regard to making

preparation to commit dacoity and also the object of the accused

persons assembling at the place of occurrence. So far as the

recovery of the weapon is concerned though the same has not

been proved by any of the independent witness; only the police

personnel have proved the same.

26. Nowhere it came that when the police nabbed accused

persons at the place of occurrence whether the accused persons

being armed had resisted to any of the police personnel of the

police party; while they are alleged to have armed with country

made pistol and also the live bullets. No resistance on the part of

the accused persons to police force at the place of occurrence

makes the prosecution story doubtful.

27. In view of the submissions made and material on record, the

prosecution has miserably failed to prove the case against all the

accused persons beyond reasonable doubt. As such the impugned

Judgment of conviction and sentence passed by the court-below

needs interference. Accordingly all the Appeals deserve to be

allowed.

28. The Cr. Appeals are hereby allowed. The impugned

Judgment of conviction dated 09.02.2011 and sentence dated

11.02.2011 passed by the Sessions Judge, Godda in S.T. No.41 of

2010 is hereby quashed and set side.

29. The appellants are on bail. Their bail bonds are hereby

cancelled and the sureties are discharged from their liabilities.

24. Let the record of learned lower court be remitted back along

with the copy of the Judgment.

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated the 31.08.2023 P.K.S./A.F.R.