Jharkhand High Court

(Against The Judgment Of Conviction ... vs State Of Jharkhand on 30 November, 2023

Author: Subhash Chand

Bench: Subhash Chand

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Appeal (S.J.) No.41 of 2011

 (Against the Judgment of Conviction dated 3rd September, 2010 and
Order of sentence dated 4th September, 2010 passed by the Additional
Sessions Judge, F.T.C. I Bermo at Tenughat in Sessions Trial No.354 of
2007)
Farid Ansari                            ....          Appellant
                              Versus
State of Jharkhand                       .....        Respondent
                              PRESENT
            HON'BLE MR. JUSTICE SUBHASH CHAND
                              .....

For the Appellant : Md. Asghar, Amicus Curiae For the State : Mr. Fahad Allam, A.P.P. .....

C.A.V. on 31.10.2023 Pronounced on 30.11.2023

1. Heard learned Amicus Curiae for the appellant and learned

A.P.P. for the State.

2. The instant criminal appeal is preferred on behalf of the

appellant against impugned Judgment of Conviction dated 3rd

September, 2010 and Order of Sentence dated 4th September,

2010 passed by the learned Additional Sessions Judge F.T.C. I,

Bermo at Tenughat in Sessions Trial No.345 of 2007, whereby

the appellant has been convicted for the offences under

Sections 399, 402 of the Indian Penal Code and Section 25 of

the Arms Act. The appellant has been sentenced to undergo

rigorous imprisonment for 6 years along with fine of Rs.5,000/-

each for the offence punishable under Sections 399 and 402 of

the I.P.C. and in default of payment of fine he was further

directed to undergo simple imprisonment for one year. Further

the appellant was directed to undergo rigorous imprisonment

Cr. Appeal (S.J.) No.41 of 2011

for 5 years for the offence under Section 25 of the Arms Act.

Both the sentences were directed to run concurrently.

3. The brief facts of the prosecution case leading to this criminal

appeal are that the informant - S.I. Sunil Kumar Tiwari, the

then Officer-in-Charge of Petarbar police station had received

the information on 3rd August, 2006 from some unknown

person over the telephone that near Chargi valley under

Petarbar police station about 8 to 10 persons armed with

weapons had assembled with intent to commit some serious

crime. Accordingly, he formed the raiding party and proceeded

towards the indicated place along with two independent

villagers, namely, Mahesh Mahto and Kunwar Mahto and found

some persons hatching plan, who began to flee away having

seen the police force. On chase five of them were apprehended

at the spot and others managed to flee away. On search being

made of the apprehended persons in presence of the two

independent villagers, namely, Mahesh Mahto and Kunwar

Mahto, a country made pistol having a cartridge of 315 bore in

its chamber along with three more cartridges of same bore was

recovered from the possession of Rafique @ Md. Alam.

Similarly, one pistol loaded with 315 bore cartridges along with

a Tata Indicom mobile, a pistol loaded with 315 bore cartridges

along with two more live cartridges of the same bore were

recovered from the exclusive possession of Ali Mohammad,

Farid Ansari (the appellant herein), Somesh Goswami

Cr. Appeal (S.J.) No.41 of 2011

respectively. In addition to these, four live cartridges were also

recovered from the possession of Ali Mohammad @ Md. Ali.

Apart from those eight pouches of country made liquor, seven

glasses, bundle of bidis, two match boxes, two daggers and a

Hero Honda Splendor motorcycle having registration no.BR 13

B 5586 were also found there. All these apprehended five

persons confessed their guilt disclosing that they had

assembled for the purpose of committing dacoity and were

making preparation for the same. No license could be produced

by them of the seized arms and ammunition. The seizure memo

was prepared and one copy of the same was supplied to

arrested miscreants. Hence, this F.I.R. was lodged.

4. The Investigating Officer after having concluded the

investigation filed charge-sheet against all the five accused and

the Magistrate concerned took cognizance on the charge-sheet

and committed the case for trial to the court of Sessions. The

court of Sessions transferred the same to the Additional

Sessions Judge, F.T.C. I, Tenughat for trial. The trial court

framed charge against the accused Farid Ansari alone for the

offences under Sections 399 and 402 of the I.P.C. and Section

25 of the Arms Act. The charges were read over and explained

to accused Farid Ansari, who denied the charges levelled

against him and claimed for trial.

5. On behalf of the prosecution to prove the charges against the

accused person in oral evidence examined P.W.1-Hawaldar

Cr. Appeal (S.J.) No.41 of 2011

Ganga Ram, P.W.2- Constable Ajay Kandulna, P.W.3-Constable

Girdhari Mahto, P.W.4- S.I. Sunil Tiwari, P.W.5- Constable

Kailash Ramani, P.W.6-Constable Manoj Kumar Rajak, P.W.-7

Constable Bifan Baitha and P.W.8- Constable Anand Prasad

Rajwar.

6. On behalf of the prosecution in documentary evidence adduced

seizure list Ext.1, self-statement Ext.2, F.I.R. Ext.3, two daggers

Exts.P-1/I to P-1/2. Match box Ext. P-2, four pistols Exts. P-3/1

to P-3/4, cartridge Ext. P-4 and glass Ext. P-5.

7. The statement of accused under Section 313 of the Cr.P.C. was

recorded, wherein the accused denied the incriminating

circumstances against him and stated himself to be innocent.

No defence evidence was adduced on behalf of the accused.

8. The learned trial court after hearing the learned counsel for the

parties passed the impugned judgment of conviction against

appellant - Farid Ansari for the offences under Sections 399

and 402 of the Indian Penal Code and Section 25 of the Arms

Act and the order of sentence was passed accordingly.

9. The aforesaid convict/appellant being aggrieved with the

judgment of conviction and order of sentence preferred the

present criminal appeal on the grounds that the impugned

judgment of conviction and sentence is bad in the eyes of law.

The court below has not appreciated the evidence on record in

proper perspective. As per prosecution case, two independent

villagers accompanied the police party but none of them was

Cr. Appeal (S.J.) No.41 of 2011

examined on behalf of the prosecution. The prosecution case is

based only on the confession of the apprehended accused and

the same is not admissible in evidence in view of Section 25 of

the Indian Evidence Act. It is further submitted that there is no

other cogent evidence against the appellant/convict. The arms

which are alleged to be recovered and produced in the court,

the same was not in sealed cover and the prosecution has also

failed to prove that what was recovered from the possession of

the appellant.

10. Heard the learned Amicus Curiae for the appellant and learned

A.P.P. for the State of Jharkhand and perused the materials

available on record.

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

judgment of conviction and sentence passed against the

appellant, the evidence adduced on behalf of the prosecution is

reproduced herein.

12.1 P.W.-1 Hawaldar Ganga Ram, in his examination-in-chief

says that on 3rd August, 2006 he along with police force

accompanied the S.I. Sunil Kumar Tiwari and other police

personnel and reached to Nawakhap jungle where 8 to 10

persons who were drinking wine began to flee away having

seen the police force. On being chased five persons were

nabbed, who were identified as Rafique Ansari, Ali Mohammad,

Farid Ansari, Suresh Goswami and Md. Ansari. This witness on

being asked in his examination-in-chief whether he could

Cr. Appeal (S.J.) No.41 of 2011

identify any of the apprehended accused, he denied from the

same and thereafter he identified one accused in the dock Farid

among the persons who were nabbed at the spot. He also

admitted his signature on the seizure memo and recovered

arms. Defense was given liberty to cross-examine this witness

but he was not cross-examined.

12.2 P.W.-2 Constable Ajay Kandulna in his examination-in-chief

stated that on 3rd August, 2006 he also accompanied the police

party and found 6 to 7 persons at the indicated place, who

began to flee away having seen the police party and five of

them were apprehended but he cannot recognize any one of

them. Among those who were apprehended from the four

persons arms and ammunition was recovered and from fifth

one nothing was recovered. This witness was also not cross-

examined from the side of the accused despite giving

opportunity.

12.3 P.W.-3 Constable Girdhari Mahto in his examination-in-

chief says that he also accompanied the police party on 3rd

August, 2006 and found 8 to 10 persons sitting in the jungle.

Five were apprehended but he cannot recognize any one of

them. This witness was also not cross-examined from the side

of the accused despite giving opportunity.

12.4 P.W.-4, S.I. Sunil Tiwari, in his examination-in-chief stated

that on 3rd August, 2006 he had received the information from

unknown person over the telephone that near Chargi valley in

Cr. Appeal (S.J.) No.41 of 2011

Nawakhap jungle some miscreants had assembled to commit

any serious crime. He reached along with police force there and

saw 8 to 10 persons had assembled there. They began to flee

away from there and among them five persons were

apprehended. Along with police party, two independent persons

of the village also accompanied, who were Mahesh Mahto and

Kunwar Mahto. On interrogation the apprehended persons had

told their name as Rafique Ansari, Ali Mohammad, Ahmad Ali,

Farid Ansari and Suresh Goswami. From the possession of Farid

Ansari one pistol of 315 bore loaded with cartridge and two live

cartridges of 315 bore from his pocket were also recovered. In

the same way the pistol and cartridges were also recovered

from other apprehended accused. The seizure memo of the

same was prepared by him in his handwriting which is Ext.1.

This witness identified Farid Ansari who was present in the

dock.

In cross-examination, this witness says that the recovered

articles which was produced in the court are in unsealed plastic

bag which are Ext.P-3/1 to P-3/4. He cannot say which pistol

was recovered from the possession of Farid Ansari. He cannot

also say that which cartridge was recovered from the

possession of which accused.

12.5 P.W.-5 Constable Kailash Ramani in his examination-in-

chief corroborated the prosecution story. In cross-examination,

this witness says that his signature is on the seizure memo. He

Cr. Appeal (S.J.) No.41 of 2011

further says that he does not recollect which pistol and

cartridge was recovered from the possession of Farid Ansari.

They had seen the accused persons at the distance of 20 to 25

yards.

12.6 P.W.-6 Constable Manoj Kumar Rajak in his examination-

in-chief corroborated the prosecution story and in cross-

examination this witness says that which pistol was recovered

from the possession of Farid Ansari he is not aware. He did not

put his signature on the seizure memo.

12.7 P.W.-7 Constable Bifan Baitha and P.W.-8 Constable

Anand Prasad Rajwar are tender witness and no cross-

examination was made on behalf of the accused from these

witnesses.

13. Prior to scrutinize the evidence on record, it is pertinent to

reproduce the statutory provision of Sections 399 and 402 of

the I.P.C. and Section 25 of the Arms Act hereunder:

"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.

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.

25. Punishment for certain offences--

(1) Whoever--

(a) manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or

(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm or convert from any category of firearms mentioned in Arms Rules, 2016 into any other category of firearms in contravention of section 6; or

(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be

Cr. Appeal (S.J.) No.41 of 2011

punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

(1-A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to fourteen years and shall also be liable to fine:

[Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] ................................................................................................"

14. As per prosecution case, the informant P.W.-4 S.I. Sunil

Tiwari, who had received secret information from some

unknown person over the telephone in regard to assembling of

8 to 10 miscreants in the Nawakhap jungle near Chargi valley.

He reached there along with police force and two independent

witnesses, namely, Mahesh Mahto and Kunwar Mahto. When

they reached at the indicated place they saw 8 to 10 persons

sitting there who began to flee away from there and among

them five were apprehended, who were identified as Rafique

Ansari, Ali Mohammad, Ahmad Ali, Farid Ansari (the appellant

in this case) and Somesh Goswami. From the possession of all

the apprehended persons, country made pistol and cartridges

were recovered. Seizure memo was prepared and after

apprehending the accused persons on their confessional

statement, the F.I.R. was lodged.

15. P.W.-4 S.I. Sunil Tiwari (the informant) though in his

examination-in-chief corroborated the prosecution story, yet in

cross-examination this witness stated that those who were

apprehended at the place of occurrence among them one was

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Cr. Appeal (S.J.) No.41 of 2011

appellant - Farid Ansari. He also says that which country

made pistol and cartridge were recovered from the

possession of Farid Ansari he is not aware. The country

made pistol and the cartridges which were produced

during examination before the court were in unsealed

bag. The same were not sealed and there was no mark

of identity thereon. As such the production of the

recovered article is also not ascertained which was

recovered from the possession of the appellant Farid

Ansari, as per testimony of informant (P.W.-4) himself,

who was one of the star witness.

16. So far as the identification of the appellant Farid Ansari is

concerned, among those who were apprehended at the spot

the prosecution witness P.W.-1 Hawaldar Ganga Ram

initially denied to identify him but later on seeing him alone in

the dock he stated that he was also among the apprehended

accused. P.W.-2 Constable Ajay Kandulna, P.W.-3

Constable Girdhari Mahto both these witnesses have stated

that they cannot identify any of the accused persons,

who were apprehended at the spot. P.W.-5 Constable

Kailash Ramani in his cross-examination stated that which

pistol and cartridges were recovered from the possession of

Farid Ansari he does not recollect. He also stated that he had

seen all the accused persons from the distance of 20 to

25 yards. P.W.-6 Constable Manoj Kumar Rajak denied

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Cr. Appeal (S.J.) No.41 of 2011

his signature on the seizure memo. He also stated that

nothing was specific marked on the recovered pistol from each

of the accused.

17. From the testimony of all these prosecution witnesses, who are

police personnel it is found :

17.1 Firstly, none of them had recognized the appellant Farid Ansari

except the P.W.-4 S.I. Sunil Tiwari and P.W.-1 Hawaldar Ganga

Ram, who identified him only being alone present in the dock.

17.2 None of the prosecution witnesses has proved which pistol and

cartridges were recovered from the possession of the appellant

Farid Ansari.

17.3 The independent witnesses, namely, Mahesh Mahto and

Kunwar Mahto were not examined on behalf of the prosecution,

therefore, the identity of the appellant - Farid Ansari is found

doubtful from the testimony of the prosecution witnesses and

recovery of country made pistol and cartridges is also not found

proved.

17.4 The recovered country made pistol and the live cartridges were

also not sent for ballistic expert opinion whether the same were

in working conditions or they were live or not.

17.5 As such the offence under Section 25 of the Arms Act is

not made out against the appellant - Farid Ansari.

18. The Hon'ble Apex Court in the case of Sunder v. State (NCT

of Delhi) reported in (2002) 6 SCC 593 at paragraphs 6 and

7 has held as under:

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Cr. Appeal (S.J.) No.41 of 2011

"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 senior most 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 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 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. 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. 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 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 and factual finding therein cannot bind them. Keeping in view Suleman 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."

19. So far as the offence under Sections 399 and 402 of the

I.P.C. are concerned:

19.1 Herein in the case in hand, there is no evidence against the

appellant that he along with other four persons was

making preparation to commit dacoity as there is no

whisper being made by all the assembled persons at the

place of occurrence. As per prosecution evidence, the

apprehended accused persons having seen the police party at

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Cr. Appeal (S.J.) No.41 of 2011

the distance of 20 to 25 yards began to flee away, however, on

being chased five were apprehended. As such, none of the

prosecution witness had heard any whisper in regard to

any preparation being made by the accused persons to

commit dacoity, who had been alleged to assemble in

the Nawakhap jungle.

19.2 In the case in hand, seven to eight persons were seen to have

assembled in the jungle at the distance of 20 to 25 yards and

five of them were apprehended at the spot on being chased by

the police. No evidence is adduced on behalf of the any

prosecution witnesses in regard to purpose of the five

apprehended accused that they had assembled there for

the purpose of committing dacoity. As such from the

testimony of all the prosecution witnesses, there is no evidence

in regard to assembling of the five nabbed accused including

the appellant for the purpose of committing dacoity or making

any preparation to commit dacoity.

19.3 The only basis is the confessional statement of the

apprehended five accused which is not admissible in evidence

under Section 25 of the Evidence Act.

19.4 For the offence under Sections 399 and 402 I.P.C., the

essential ingredient is that there should be evidence in regard

to preparation being made by the assembled five or more

persons for committing dacoity and assembling by the five or

more persons for the purpose of committing dacoity.

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Cr. Appeal (S.J.) No.41 of 2011

19.5 Merely recovery of the arms and ammunition cannot be

accepted that it was preparation for committing dacoity since

none of the prosecution witness had adduced any evidence that

the five apprehended accused were hatching to commit dacoity.

19.6 There is no evidence that any of the accused persons, who

were alleged to be armed with weapons offered any kind of

resistant to the police personnel.

20. The Hon'ble Apex Court in the case of Suleman v. State of

Delhi reported in (1999) 4 SCC 146 at paragraph 4 has held

as under:

"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."

21. The Hon'ble Apex Court in the case of Jasbir Singh v. State

of Haryana reported in (2015) 5 SCC 762 at paragraphs 11

to 14 has held as under:

"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

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Cr. Appeal (S.J.) No.41 of 2011

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.)

13. In view of the above facts and circumstances, which are apparent from the evidence on record, we find that both the courts below have erred in law in holding that the prosecution has successfully proved charge of the offences punishable under Sections 399 and 402 IPC, and one punishable under Section 25 of the Arms Act against appellant Jasbir Singh alias Javri alias Jabbar Singh, beyond reasonable doubt. In our opinion, it is a fit case where the appellant is entitled to the benefit of the reasonable doubt, and deserves to be acquitted.

14. Accordingly, the appeal is allowed. The conviction and sentence recorded against appellant Jasbir Singh alias Javri alias Jabbar Singh under Sections 399 and 402 IPC and one punishable under Section 25 of the Arms Act, is hereby set aside. The appellant shall be released forthwith, if not required in connection with any other trial."

[

22. After critical appraisal of the evidence available on record and

also keeping in view the settled proposition of law as laid down

by the Hon'ble Apex Court, I am of the considered opinion that

the learned Court below has committed illegality in recording

the findings of conviction of accused/appellant for the offence

under Sections 399, 402 of the Indian Penal Code and Section

25 of the Arms Act.

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23. Accordingly, this criminal appeal is, hereby, allowed and

impugned judgment of conviction and order of sentence