Jharkhand High Court
Mithilesh Prasad Mehta @ Mithilesh ... vs The State Jharkhand on 1 May, 2024
Author: Ambuj Nath
Bench: Ambuj Nath
Cr. Appeal (SJ) No. 411 of 2017
With
Cr. Appeal (SJ) No. 449 of 2017
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Against the judgment of conviction and order of sentence dated
09.02.2017 (sentence passed on 13.02.2017) passed by Sri Rajesh
Narayan Singh learned Additional Sessions Judge-XII, Hazaribagh in
S.T. No. 277 of 2008, arising out of Ichak P.S. Case No. 39 of 2008,
Corresponding to G. R. Case No. 677 of 2008]
Cr. Appeal (SJ) No. 411 of 2017
1. Mithilesh Prasad Mehta @ Mithilesh Kumar Mehta @ Mithlesh
Mehta
2. Ashok Prasad Mehta ... Appellants
-Versus-
The State Jharkhand ... Respondent
With
Cr. Appeal (SJ) No. 449 of 2017
Shankar Mehta ... Appellant
-Versus-
The State Jharkhand ... Respondent
-----------
CORAM: HON'BLE MR. JUSTICE AMBUJ NATH
----------
For the Appellant(s): M/s. Pradeep Kumar Prasad Advocate
For the State : M/s. Nehala Sharmin Spl.P.P.
: M/s. P. K. Mishra, A.P.P.
---------
11/Dated 01.05.2024
1. Heard Mr. Pradeep Kumar Prasad learned counsel appearing for
the appellant(s) and Ms. Nehala Sharmin learned Spl.P.P. for the State.
2. The aforesaid appeals arise out of the same impugned judgment
of conviction and order of sentence. Accordingly, both these appeals
are being disposed of by a common judgment. The appellants have filed
these appeals against the judgment of conviction and order of sentence
dated 09.02.2017 (sentence passed on 13.02.2017) passed by Sri
Rajesh Sharan Singh learned Additional Sessions Judge-XII, Hazaribagh
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in S.T. No. 277 of 2008, arising out of Ichak P.S. Case No. 39 of 2008,
Corresponding to G. R. Case No. 677 of 2008, holding the appellants
guilty of offences under Section 402 of the Indian Penal Code and
Section 25(1-B)a of the Arms Act, thereby sentencing them to undergo
rigorous imprisonment for six years each alongwith a fine of Rs.5000/-
each for the offence under Section 402 of the Indian Penal Code and in
default of payment of fine they were further directed to undergo S.I. for 3
months. The appellant Ashok Prasad Mehta [in Cr. Appeal (SJ) No. 411
of 2017] was further sentenced to undergo R.I for three years alongwith a
fine of rupees 2000/- and in default of payment of fine he was further
directed to undergo S.I. for 2 months for the offence under section 25(1-
B)a of the Arms Act. All the sentences were ordered to run concurrently.
3. The prosecution case was instituted on the basis of written report
of the informant, Sanjay Kumar police officer posted at Ichak Police
Station, alleging therein that on 29.02.2008 at about 02:00 P.M., he
received confidential information that dacoits have assembled near
Bonga Petrol Pump, on the basis of confidential information police
raided and arrested several persons including the appellants. It further
appears that mobile phone alongwith a loaded country made pistol of of
.315 bore were recovered from the possession of the appellant Ashok
Prasad Mehta [in Cr. Appeal (SJ) No. 411 of 2017].
5. Learned lawyer appearing on behalf of the appellants submitted
that no case under section 402 of the Indian Penal Code is made out
against the appellants as there is nothing on the record that the appellants
had assembled there and were making preparations for committing
dacoity.
Reliance has been placed upon a decision of Hon'ble Supreme
Court judgment in Chaturi Yadav & Ors. Vs. State of Bihar reported
in (1979) 3 SCC 430, in which the Honorable Apex Court has held that:-.
"The mere fact that the appellants had assembled for the purpose of
committing dacoity or for making preparations to accomplish that object.
"It was further held that possibility that the appellants may have
With
collected for the purpose of murdering somebody or committing other
offence cannot be safely eliminated".
In order to prove its case, the prosecution has adduced both oral
and documentary evidence. On the basis of materials available on the
record, the learned trial court held them guilty and sentenced them
accordingly.
Sanjay Kumar has been examined as P.W.3. He has supported the
prosecution case as made out in the written report and has stated that on
29.02.2008, on the basis of confidential information, that some persons
had assembled near Bonga Petrol pump and were planning to commit
dacoity, the police party reached there and apprehended these appellants
along with other accused persons. On search a loaded country made
pistol was recovered from the possession of appellant Ashok Prasad
Mehta.
He has been cross examined at length. In his cross-examination he
has admitted that no evidence could be collected to show that the
appeallants had assembled at the place and were making preparations to
commit dacoity.
Sunil Kumar P.W.1, Arun Kumar Pandey P.W.2, Raghunandan
Paswan P.W.4, Sujit Kumar P.W.5. All were the members of the raiding
party. They have all supported the prosecution case and has stated that on
the date and time of occurrence, the appellants were apprehended while
they were making preparations for committing dacoity. They have also
stated that a loaded country made pistol of.315. bore was recovered from
the possession of appellant Ashok Prasad Mehta while a knife was
recovered from the possession of appellant Shankar Mehta. The
prosecution has formally proved the sanction order which has been
marked as Ext.- 4 with objection.
It further appears that the prosecution has not examined the sgt.
Major, who has examined the recovered firearm to prove whether it was
in working condition or not nor his report has been adduced in evidence.
Learned Special P.P. has opposed the prayer for bail, but does not
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dispute the fact that the report of the ballistic expert has not been adduced
in evidence. She has also stated that the Sgt. major has not been
examined. Mr. P. K. Mishra, learned A.P.P. in [Cr. Appeal (SJ) No. 449 of
2017] has submitted that the prosecution has been able to prove its case
against the appellants beyond all reasonable doubt. It is a fact that all the
three appellants were apprehended by Ichak police and on the date and
time of occurrence as alleged. It further appears that .315 bore of loaded
country made pistol was also recovered from the possession of appellant
Ashok Prasad Mehta.
From the perusal of the seizure list which is Ext.-2, it appears that a
loaded country made pistol of .315 bore was recovered from the
possession of appellant Ashok Prasad Mehta. However, there is no
evidence on the record to show that the appellants had assembled at the
place from where they were arrested and were making preparations for
committing dacoity. Furthermore, in the absence of the report of ballistic
expert whether the seized firearm was in working condition or not, no
case can be said to be proved by the prosecution under section 25(1-B)a
of the Arms Act.
In view of the above, I am of the opinion that the learned trial
Court has wrongly held the appellants guilty for the offence under section
402 of the Indian Penal Code and section 25(1-B)a of the Arms Act.
Both these appeals are allowed. The judgment of conviction and
order of sentence passed by the learned trial Court is set aside.
Pending I.A. if any also stands disposed of.
(Ambuj Nath J.)
Saurabh
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