Banti Khan vs The State Of Jharkhand ... ... Opp. Party
2024 Latest Caselaw 5142 Jhar

Jharkhand High Court

Banti Khan vs The State Of Jharkhand ... ... Opp. Party on 10 May, 2024

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

             IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           Cr. Rev. No. 506 of 2019

           1. Banti Khan, aged about 33 years Son of Nasir Khan, Resident of
              Kamar Makhdumi Road, Wasseypur, P.O. Wasseypur, P.S. Bank
              More, Dist. Dhanbad
           2. Ritik Khan, aged about 29 years, S/o Md. Mustakim, R/o Kamar
              Makhdumi Road, Wasseypur, P.O. Wasseypur, P.S. Bank More,
              Dist. Dhanbad                         ...     ... Petitioners
                                      Versus
              The State of Jharkhand                ...     ... Opp. Party
                                   ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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            For the Petitioners      : Mrs. Prerna Jhunjhunwala, Amicus Curiae
            For the Opp. Party       : Mrs. Mohua Palit, Advocate
                                     ---
08/10.05.2024     Heard the learned counsels for the parties.

2. This revision is directed against the judgment dated 18.04.2019 passed by learned Additional Sessions Judge-VIII, Dhanbad in Criminal Appeal No. 19 of 2018, whereby the appeal filed by the petitioners has been dismissed.

3. The petitioners have been convicted vide judgment and order of sentence dated 16.01.2018 passed in Dhanbad P.S. Case No. 1067 of 2015 corresponding to GR No. 5510 of 2015 registered under Sections 25(1B) (a) / 26 of the Arms Act. The petitioners have been sentenced to undergo rigorous imprisonment for 30 months with fine of Rs.5000/- each with default clause for offence punishable under Section 25(1B) (a) of Arms Act and rigorous imprisonment for 30 months with fine of Rs.5000/- each with default clause under Section 26 of Arms Act and both the sentences have been directed to run concurrently.

Arguments on behalf of the petitioners

4. The learned amicus Mrs. Prerna Jhunjhunwala submitted that the impugned judgments are perverse and call for interference by this Court. She submitted that the seizure of the arms from the possession of the petitioners have not been proved beyond all reasonable doubts, and there is inconsistent evidence of the witnesses, which are contradictory to each other. The learned amicus has submitted that the

seizure had allegedly taken place in crowded place, but only one independent witness from the crowd was taken as witness to seizure, who in the cross-examination had stated that his signature was obtained on blank paper in the police station, and this witness has not fully supported the prosecution case.

5. The learned amicus submitted that, so far as the other independent witness i.e. PW-8 is concerned, the said witness was actually not an independent witness inasmuch as he was the driver of the police vehicle. She submitted that as per the judgment passed by the Hon'ble Supreme Court in a circumstance where the search and seizure take place in crowded place, both the witnesses to search and seizure should be from amongst the people in the crowd and the seizure witness, PW-8, being not an independent witness, the conviction cannot be sustained in the eyes of law.

6. The learned amicus has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1998) 2 SCC 371 (Sans Pal Singh Vs. State of Delhi) Paragraph No.3 and the judgment reported in (1996) 11 SCC 685 (Sahib Singh Vs. State of Punjab) Paragraph No.6.

7. The learned amicus further submitted that PW-1 has not stated about sealing of recovered weapon on the spot. So far as PW-2 is concerned, he has stated in his cross-examination at paragraph no. 18 that the arms were not sealed at the place of occurrence and he had kept the arms with himself for 1 or 2 minutes. PW-3 has stated that the arms were not sealed on the spot and there was no mark on the confiscated things. So far as PW-4, 5, and 6 are concerned, they have given different version with regard to sealing of arms. So far as PW-8 is concerned, he is a seizure witness, but with regard to sealing of arms, he has stated that he saw the process of sealing of arms, but did not see the entire process of sealing. She also submitted that there are other inconsistencies in the deposition of various witnesses and therefore, the impugned judgments call for interference.

8. The learned amicus also submitted that the reason of false implication is apparent from the evidence of defence witness who has

deposed that he along with the petitioners went to lodge complain to Deputy Superintendent of Police (Dy. S.P.) on 30.10.2015 regarding investigation of F.I.R being PS Case No.978 of 2015 lodged by the petitioner no.2 in connection with bullet shot at him but no arrest was being made pursuant to the FIR and the Dy. S.P called the SHO. At this, the SHO had taken away the petitioners as Dy. S.P. had asked the SHO investigate the case. Thereafter, the SHO took the petitioners for a ride and then lodged the present case against them under the Arms Act.

9. While referring to the examination of the petitioners under Section 313 of Cr.P.C, the learned amicus has submitted that, so far as the Petitioner No. 1 is concerned, he had deposed that all allegations made against him were false and the Petitioner No. 2 also stated that all allegations were false. The petitioner no.2 had further stated in his examination that he was a witness in a case where no arrest was being made and hence, he went to meet the Dy. S.P. and from there the SHO took him to Ara more where the SHO showed a stick around and then took him to the police station and conducted a press conference that the arms have been recovered.

10. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court, reported in (1995) Supp (3) SCC 217 (Amarjit Singh Vs. State of Punjab), Paragraph nos.7 and 8, to submit that, where weapons are not sealed on the spot, it cannot be said that the prosecution has been able to prove its case. Paragraph nos.7 and 8 read as under:

"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 PW 4 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 PW 4 that he did not test-fire the revolver.

8. For all the observations made above, we hold that the prosecution has not established its case beyond all reasonable doubt. On the other hand, the circumstances appearing in this case militate the evidentiary value of the witnesses. In the result, the conviction and sentence are set aside, the appeal is allowed and the appellant is directed to be set at liberty, if not wanted for any other cause. We place on record our appreciation for the services rendered by Mr. Ravinder Chadha amicus curiae."

Arguments on behalf of the Opposite Party-State

11. The learned counsel, appearing on behalf of the State opposed the prayer and submitted that there are concurrent findings recorded by the learned courts and there is no illegality or perversity calling for any interference in revisional jurisdiction. She submitted that there is no scope for re-appreciation of evidences and coming to a different finding in revisional jurisdiction. The learned counsel also submitted that all the inconsistencies and contradictions were argued before the learned courts who have considered and rejected such arguments. The learned counsel submitted that there was enough material before the learned court to come to a finding that the arms were seized from the possession of the petitioners at Ara More, and they were sealed, and in sealed conditions, they were taken to Sergeant Major, who had tested the arms and found them to be in a good condition. The sanction for prosecution has also been obtained. She submitted that all the sequence of events clearly demonstrate that the case has been proved beyond all reasonable doubt. She also submitted that the witnesses who were eye witnesses to the occurrence have also fully supported the prosecution case, and there is no material to discredit their evidences. She further submitted that the witnesses were examined after a long gap in the court, and therefore, there was bound to be some inconsistencies, but those inconsistencies are not fatal to the prosecution case. The judgments in that regard has been taken into consideration by the learned courts below.

Findings of the trial court and the appellate court

12. The findings of the learned trial court recorded in paragraphs 23 and 24 and 25 are quoted as under:

"23. Now coming to the case of the prosecution in light of the above mentioned requirements, PW9 i.e. the informant of the case has specifically mentioned in para 2 of the case that accused Banti Khan was found with a country made loaded pistol hidden in the left side of his waist and 2 bullets were found in his left pocket. Similarly, Ritik Khan was found with a loaded country made pistol hidden in the waist and 3 bullets were also found with him. The statement of informant is supported by all the witnesses. PW8 in para 5, PW1 in para 2, PW2 in para 4, PW3 in para 3 and 4, PW4 in para 2, PW5 in para 5, PW6 in para 5, PW7 in para 5 have supported this fact that the accused persons were found with country made loaded pistol and bullets. All the witnesses have supported the factum of recovery and on this point, there is no contradiction whatsoever in the testimonies of the witnesses. All the witnesses have supported the fact that accused persons were arrested from KGM Complex Ara More when they tried to run away from the police. Both the accused persons were searched on the spot and they were found with fire arms. The prosecution has also successfully established that when the accused persons were asked to show the licence of the firearms then they could not show any documents with respect to the seized firearms. No satisfactory answer could be given by the accused persons with respect to the seized firearms.

24. Coming to the factum of seizure, a careful perusal of the seizure list reveals that the seizure list was prepared on 30.10.15 at about 8.15pm. It contains signature of 2 Independent witnesses and it also bears signature of both the accused persons and they have mentioned that a copy of seizure list was received by them. The entire seizure list has been marked as Exhibit 1/1. Signature of witness Rakesh Sharma has been marked as Exhibit-1 while signature of witness Kalim Khan has been marked as Exhibit 1/2. Let it be noted that apart from PW12 i.e. one independent witness, all the other witnesses have supported the factum of seizure on the spot. In fact, not a single witness of prosecution has given any contrary statement with respect to the place of seizure. All the witnesses have specifically and categorically stated that seizure was prepared on the spot and defence could not bring any contradiction in their testimony during the cross-examination. At this point the learned counsel of the defence has raised an objection that PW12 i.e. the independent seizure witness has not supported the factum of seizure. PW12 during his cross examination has stated that he has signed on the blank paper and thus the prosecution case should fail on this point alone. He has further submitted that the other so called independent witness is in fact a police witness and the testimony of the police witnesses cannot be relied upon. At this point it is important to consider the judgment of the Hon'ble Supreme Court in the case of Govinda Raju alias Govinda v. State by Sriramapuram and others [2012 4 SCC 722]. In this case the Hon'ble Supreme Court while discussing the role, reliability and trustworthiness of a police witness has observed that "It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police

officer and may have some interest in success of the case...". In the present case the fact of seizure has been supported by all but one witnesses. The mere fact that the witnesses are police personnel does not make their testimony unreliable unless something contrary can be shown. In the present case the defence has not been able to show as to how the police witnesses are interested witness. It is important to note that in the criminal trial, very often seizure witness turn hostile especially in the cases of Arms Act. However, this will not be significant if the case is well supported by the other witnesses. It is important to note that this view has find coherence in the judgment of the Hon'ble Supreme Court in the case of Ashok @ Dangra Jaiswal Vs. State of M.P [(2011) 5 SCC 123] in which the Hon'ble Supreme Court observed that "the seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trial...". Thus, it is clear from the discussion made above that in the absence of support from an independent seizure witness; the case of prosecution will not fail if it is properly proved through other witnesses of the prosecution. Another objection raised by the defence is that certain witnesses of the prosecution have stated that the seizure list was in a printed form while some witnesses including the informant and IO have stated that the seizure list was prepared on the blank paper. Thus, there seems to be manipulation in the investigation and the benefit of this must go to the accused. In this context it is to be remembered that witnesses have deposed before the court based on their testimony for an incident which occurred some 2 years ago. It is neither expected nor possible for them to remember each and every minute detail of the incident. In the present case the factum of seizure has been supported by all the witnesses and this is the crux of the seizure which could not be disproved by the defence. In the present case the accused persons were arrested on spot with the seized articles and this is the root of the prosecution case. Minor discrepancies in the testimony or in investigation will not affect the case of prosecution at all. This view has found support in the case decided by Hon'ble Supreme Court in Sunil Kundu v. State of Jharkhand [(2013) 4 SCC 422]. The Hon'ble Supreme Court is of the view that "If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored". In the present case also the lapses or irregularities are in the form of proforma of seizure list and not with respect to seizure. Thus, this contradiction with respect to the testimonies of the witnesses can be ignored as it does not affect the very root of the case.

Another important point to be considered is that defence could not bring out any contradiction with respect to the nature and quantity of the seized articles. Not a single witness of the prosecution deviated from his stand that a country made pistol and bullets were recovered from the accused persons.

Thus from the discussion made above it is clear that prosecution has been able to prove seizure of firearms from the accused persons and the same could not be disproved by the defence.

25. Coming to the production of material exhibits produced in the court, PW 9 i.e. the informant has produced the material exhibits in the court. The description of the material exhibits has been already

mentioned in the testimony of PW9. PW9 has produced the arms and bullets recovered from the accused persons and the Sergeant Major through his report (Marked as Exhibit 9). Material Exhibit M-II, M- III, M-V and M-VI were examined by the expert and the report of expert clearly mentions that the arms were operation i.e. were in a working condition.

On this point the defence has not been able to make any argument. The learned counsel of the defence has merely pointed out that certain information with respect to seized arms has not been mentioned in the report. However, it has to be kept in mind that the material exhibits have been sufficiently described in the examination report and it gives no room to the question as to whether the sealed exhibits were sent for examination or not. In order to justify the claim, it is important to mention that the report of the Sergeant major clearly mentions that the IO of the case has produced the material exhibits in a sealed condition.

Thus, prosecution has been successful in proving that the arms recovered from the accused persons were in working condition."

13. This Court finds that the learned trial court has considered all the material evidence on record and has recorded a clear finding by considering the evidences that the accused Banti Khan was found with a country made loaded pistol hidden in the left side of his waist and two bullets were found in his left pocket. Similarly, Ritik Khan was found with a loaded country made pistol hidden in the waist and 3 bullets were also found with him. The evidence of informant P.W.-9, has been supported by other witnesses i.e. P.W.-1, P.W.-2, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-7 and all of them have stated that the petitioners were arrested from KGM complex, Ara More when they tried to run away from the police and upon search on the spot, they were found with the aforesaid fire arms for which they had no documents.

The learned trial court has also discussed the factum of seizure and considered the materials including the evidence of P.W.12 - independent witness. The learned trial court has recorded that all the witnesses have stated with respect to the place of seizure, and that the seizure list was prepared on the spot and defence could not bring any contraction in the testimony during cross-examination.

The learned trial court has also recorded the objection with regard to evidence of P.W.12. It was contended that P.W. 12 had not supported

the factum of seizure and that he had signed on blank paper. Therefore, the prosecution should fail on this point and the other witness was a police witness who could not be relied upon.

The learned trial court referred to the judgment passed by Hon'ble Supreme Court wherein it was observed that the if the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. The learned trial court also considered that the aforesaid aspect of the matter as argued by the defence was not fatal to the prosecution case and the defence also could not show as to how the police witnesses were interested witnesses. The learned trial court also considered that it has been observed by the Hon'ble Supreme Court that the seizure witness turning hostile may not be very significant and it is not uncommon phenomena in criminal trial and absence of support from an independent seizure witness; the case of prosecution will not fail if it is properly proved through other witnesses of the prosecution. The other objections in connection with seizure were also considered and were rejected. The learned trial court also considered the factum that the material exhibits were sufficiently described in the examination report and there was no room to the question as to whether the sealed exhibits were sent for examination or not. The learned trial court also considered that the Sergeant Major had mentioned that the I.O of the case has produced the material exhibit in the sealed condition. The conduct of the petitioners on reaching of the police has also been taken into consideration.

14. The appellate court has also scrutinized the evidences and has come to the following findings at Paragraph No. 15, 17, 18, 19, and 20 which are quoted as under:

"15. Having born in mind, the aforesaid principles, this court is of the opinion that in order to fasten criminal liability for the offence punishable u/s 25(1B)(a), 26 (1) Arms Act, prosecution is mandatorily required to establish the factum of unlawful possession of arms without any valid authority. The evidence

available on record, particularly the testimony of PW-9, 'informant suggest that on the alleged date i.e. on 30.10.2015 while he was on patrolling duty and reached Bhuli at about 8:00 p.m., he received secret information that some criminals are making plan near Aara More, Wassehpur to kill Bholu Khan. Informant along with patrolling party and the Tiger Mobile Force reached Aara More at about 20:15 hours and saw that some people started fleeing away on seeing the police personnels near K.G.M. Complex. They were chased and appellants were apprehended by the police. Thereafter, the members of the patrolling party got themselves searched in presence of two independent witnesses and thereafter searched the person of appellants. From the left side of the waist of appellant Banti Khan, one .315 country made pistol and two cartridges from the left pocket of the pant was recovered. From the possession of appellant Ritik Khan, one country made pistol of .315 bore from the left side of the waist with one cartridge loaded in it and three cartridges from the pocket of the pant was recovered. On being asked to produce the documents regarding possession of arms, they failed to produce any document nor gave any satisfactory reply. Thereafter, seizure list was prepared in presence of two independent witnesses and a copy of the same was given to the accused persons. Both the accused persons were arrested on the spot. The seizure list is marked Ext.-1/1 and the signature of the witnesses are marked Ext.-1 and Ext.-1/2. From perusal of the said exhibits, it appears that both the appellants received a copy of the same. Arrest memo of the appellants is marked Ext.-3 & Ext.-4. The evidence of this witness regarding recovery of country made pistol and cartridges from the possession of appellants is corroborated by the evidence of PW-1, PW-2, PW- 3, PW-4, PW-5, PW-6, PW-7 and PW-8. Seizure list was prepared at the place of occurrence in presence of two independent witnesses namely PW-1 & PW-12. PW-10 is I.O. of this case. In his evidence, he has proved the place of occurrence which is in front of K.G.M. Complex situated in Wasseypur. He recorded the statement of witnesses and all the witnesses supported the factum of possession of fire arms and ammunition by the appellants and its seizure. I.O. sent the seized cartridges and pistol to Sergeant Major for examination. He received the report of the Sergeant Major and found that the pistol was in a working condition and the cartridges were live. Thereafter, he obtained prosecution sanction from Deputy Commissioner, Dhanbad. Report of the Sergeant Major is marked Ext.-9 and the prosecution sanction is marked Ext.-10. Finding the case true, the I.O. submitted charge-sheet u/s 25(1B) (a) and 26(1) Arms Act.

17. PW-9 (informant) has produced two separate sealed articles before the court on which Bank More P.S. Case No. 1067/15 dated 30.10.2015 u/s 25 (1B) (a), 26 Arms Act was mentioned and bore signature of informant as Officer- in-charge, Bank More P.S. The sealed articles also contained signature of witness Rakesh Sharma, Kalim Khan and accused Ritik Khan. Both the sealed packed were opened before the court. First packet contained pistol and four cartridges. On the pistol, there

was signature of the informant, C.J.M., independent witnesses Rakesh Sharma and Kalim Khan and accused Ritik Khan. The cloths was marked Material Ext.-1 and the pistol was marked Material Ext-II. It also contained four cartridges which were marked Material Ext.-III. The other packet was also opened before the court, it contained a pistol and three cartridges. On the pistol, there was signature of informant, independent witnesses, accused Banti Khan and C.J.M. The cloths were marked Material Ext.-IV and the pistol was marked Material Ext.- V and the cartridges were marked Material Ext.-VI.

18. Learned counsel for the appellants has drawn the attention of the court towards inconsistency in the evidence of prosecution witnesses. Some of the witnesses have stated in their cross- examination that they did not get themselves searched prior to taking search of the accused persons. Learned counsel also pointed that the witnesses have stated that the seizure list was prepared on a printed form but the seizure list available on record is prepared on a plane paper.

Learned counsel also drew the attention towards the evidence of PW-12 who has stated that he put his signature at the police station on a plane paper. Learned counsel further argued that the appellants have been falsely prosecuted as they had gone to make a complaint before the Dy. S.P. and they were arrested by the police and falsely implicated in this case. DW-1 has stated in his cross-examination that he has got no documentary evidences to show that the appellants had gone to Dy. S.P. to lodge complain regarding Dhanbad (Bank More) P.S. Case No. 978/15 dated 04.10.2015. Thus, the evidence of the defence is not reliable.

19. Learned Addl.P.P. argued that all the prosecution witnesses have consistently supported the prosecution case regarding recovery of arms and cartridges from the possession of accused Banti Khan and Ritik Khan. The arms were examined by the Sergeant Major. The pistol and the cartridges were found in a working condition and live. Appellants have failed to bring on record any licence for possession of the same and thus rendered liable for the offence u/s 25(1B)(a) and 26(1) of the Arms Act.

20. After giving thoughtful consideration of the evidences available on record and having regard to the argument advance on behalf of both the sides, I am of the opinion that the prosecution has been successful in bringing whom the charges levelled against the appellants u/s 25(1B)(a) and 26(1) of the Arms Act. Learned court below has rightly held the appellants guilty after proper appreciation of the evidences available on record. There is no illegality, impropriety or absurdity either on the facts or on the point of law. Therefore, the impugned judgment passed by the learned court below does not require any interference by this court. The sentence passed by the learned court below also appears to be appropriate considering the gravity of the offence."

15. This Court finds that the learned appellate court has also discussed the evidences on record and sustained the conviction of the

petitioners and held that the prosecution has been successful in bringing whom the charges levelled against the appellants u/s 25(1B)

(a) and 26(1) of the Arms Act and the sentence passed by the learned trial court was also held to be appropriate considering the gravity of the offence.

Findings of this Court

16. After hearing the learned counsel for the parties, this Court finds that the prosecution case was instituted on the basis of a self- statement of S.I. Ashok Kumar Singh (PW 9-the SHO), the officer in charge of Bankmore Police Station, alleging that on 30.10.2015, at about 20 hours, when he reached Bhuli more, during evening patrolling, he received a secret information that some people were gathered near Ara more and were making plan to commit murder of Bholu Khan. On receipt of said information, he, along with the police personnel, reached Ara More at 20.15 hours and saw that near KGM Complex Matkuria More, some people started running away. Two of them were arrested by the police in presence of two independent witnesses named Rakesh Kumar Sharma (PW8), and Kaleem Khan, (PW12), the accused disclosed their names as Bunty Khan and Ritik Khan i.e. Petitioner Nos. 1 and 2, respectively. In presence of two independent witnesses, the patrolling team got themselves searched and thereafter, they searched the apprehended persons and during search, from possession of Petitioner No.1, one .315 bore country- made pistol and two cartridges were recovered. Further, from possession of Petitioner No.2, one country-made pistol of .315 bore with one cartridge loaded in it and 3 cartridges from pocket of his pant were recovered. The petitioners did not produce any valid document for possession of arms and hence seizure list was prepared in presence of independent witnesses P.W. 8 and P.W. 12. A copy of the seizure list was given to both petitioners and the FIR was registered under Section 25(1B) (a) and 26 of the Arms Act and after investigation charge sheet was also submitted under the same sections. The I.O. of

the case is P.W-10. The charges were read over to the petitioners and they pleaded not guilty and claimed to be tried.

17. In order to prove the prosecution case, the prosecution examined altogether 12 witnesses. Out of them, the seizure list witnesses are PW8 and PW12. The informant of the case has been examined as PW9. The I.O. of the case has been examined as PW10. The Sergeant Major who had examined the arms has been examined as PW11. So far as other witnesses are concerned, they are eye- witnesses to the occurrence, inasmuch as they formed a part of the patrolling team, who had gone to the place of occurrence and had seized the arms.

18. Altogether there are 6 material exhibits and there are numerous documents as exhibits. The list of exhibits is as under:

"Exhibit-1: Signature of PW-8 on seizure list Exhibit-2: Written Report Exhibit-2/1: Registration of Written Report Exhibit-1/1: Seizure List Exhibit-3: Arrest Memo of Banti Khan Exhibit-4: Arrest Memo of Ritik Khan Exhibit-5: Formal FIR Exhibit-6: Malkhan Entry Register Exhibit-7: Charge-sheet Exhibit-8: Application for examination of seized Arms by IO Exhibit-9: Examination Report of seized Arms Exhibit-10: Sanction order Exhibit-1/2: Signature of PW-12 on seizure list Exhibit-3/1: Signature of PW-12 on arrest memo of Banti Khan Exhibit-4/1: Signature of PW-12 on arrest memo of Ritik Khan Material Exhibit-1 (M-I): Cloth used to seal arms seized from Ritik Khan Material Exhibit-2 (M-II): A country-made loaded pistol seized from Ritik Khan Material Exhibit-3 (M-III): 4 bullets seized from Ritik Khan Material Exhibit-4 (M-IV): Cloth used to seal arms seized from Banti Khan Material Exhibit-5 (M-V): A country-made loaded pistol seized from Banti Khan Material Exhibit-6 (M-VI): 3 bullets seized from Banti Khan"

19. The statements of the petitioners were recorded under Section 313 of CrPC on 05.01.2018, in which they denied the allegations and claimed to be innocent. Further, the petitioner No. 2, while giving explanation, has mentioned that he was a witness in a case where no arrest was being made, and when he went to meet Dy. S.P in that regard, the SHO had taken him to Ara More and then took him to police station, and then conducted a press conference that arms have been recovered. One defence witness was examined on behalf of the defence namely, Dickey Ansari @ Murtuza as DW-1 and the Certified Copy of FIR of Dhanbad (Bank More) P.S. Case No.978/2015 was exhibited as Exhibit-A from the side of the defence.

20. This Court finds that PW-9 SHO is the Informant of the case. He has specifically stated in Para 2 that accused Banti Khan was found with a country made loaded pistol hidden in the left side of his waist and 2 bullets were found in his left pocket. Similarly, Ritik Khan was found with a loaded country made pistol hidden in the waist and 3 bullets were found with him. This Court finds that PW-9 has supported the fact when the petitioners tried to run away from the police, they were arrested from KGM Complex Ara More and thereafter, both were searched on the spot and they were found with fire arms. He has also been fully cross-examined, but the defence has failed to elicit anything to disbelieve his evidence. He has also denied the suggestion of false implication of the petitioners in the case.

21. This Court finds that seizure witness PW8, though is the driver of the police station, but he was present on the spot. He has fully supported the prosecution case with respect to the receiving of information while the patrolling party was in Bhuli More with regard to the miscreants at Ara More and consequently the entire team went to Ara More and upon seeing the police, two persons started running away, who were apprehended and upon search the aforesaid arms were recovered from their possession. The signature on the seizure list was marked at Exhibit 1. He stated that he could identify the accused though the accused were not present at that time in the court. He has been thoroughly cross-examined and has clearly stated that he had put

his signature on the paper on which the seizure list was already prepared. He has also stated that his statement was recorded by the investigating officer in his presence. The petitioners were searched and the police jeep was around 5 to 6 steps away from the place of occurrence. The place of occurrence was thickly populated area and at the place of occurrence amongst the persons from the crowd, one person had put his signature on the seizure list. He has stated that the personnel who had searched the accused persons had also given their own search. He has clearly deposed that he had seen the process of sealing of the recovered arms but had not fully seen that and at the place of occurrence, the team was present for about 1 hour. He has also given the date and the time of occurrence.

22. This Court finds that PW8 has fully supported the prosecution case and there is no cross-examination of this witness on the point of any malice or ill-will with regard to any indication of false implication of the petitioners. This witness has also clearly stated that at the time of seizure, another person from the crowd was also taken as seizure witness.

23. The I.O. has been examined as P.W-10 and he has fully supported the prosecution case and he had recorded the statements of the witnesses and also the petitioners (accused) but there is no cross examination of the I.O with regards to any false implication or that the petitioners had told the I.O about any false implication or about any malice by the SHO (P.W-9) but the police did not record such statement of the petitioners. The P.W-10 has been fully cross examined but there is nothing to indicate false implication of the petitioners. The sole defence witness has only stated that he was the victim of bullet shot in another FIR and had gone to the Dy. S.P. with the petitioners to make a complain that there was no arrest in the case and the SHO went away with the petitioners as the Dy. S.P. had directed to take action and thereafter the SHO moved around with the petitioners and filed false case against the petitioners. This witness has been cross examined and this Court finds that he is not a witness to the allegation that the petitioners were taken to Ara More and were falsely

implicated. Considering the totality of evidences on record and the evidences of the eye witnesses to the occurrence with regards to place, time and manner of seizure of arms from the possession of the petitioners, this Court finds that the plea of false prosecution by the SHO has not been substantiated.

24. So far as the other seizure witness PW12 is concerned, he has stated that he had signed the seizure list on 30.10.2015 and his signature was marked as Exhibit 1/2. He has also identified his signature made on 30.10.2015 on two arrest memos which were marked as Exhibit 3/1 and 4/1. However, the witness was cross- examined and, in his cross-examination, he has stated that he had put all the three signatures at police station and he had signed on blank papers and has no idea about the case. This Court finds that though PW12 was not declared hostile by the prosecution, but at the same time he had accepted that all the three signatures on seizure list as well as the arrest memos of the petitioners are his signature and that he had signed it on 30.10.2015. This Court finds that the PW-12 has not fully supported the prosecution case during cross-examination. However, other seizure witness, namely PW-8, has fully supported the prosecution case and his evidence could not be shaken by the defence in any manner whatsoever, and the evidence of PW-8 remained intact even after his thorough cross-examination. Merely because P.W-8 was the driver of the police vehicle; his evidence cannot be discarded. The evidence of PW-8 is required to be seen, with the evidence of other eye witnesses who have fully supported the prosecution case with respect to time, place, and manner of occurrence and the evidence of the eye witnesses cannot be discarded merely because they were police personnel.

25. The Sergeant Major (P.W-11) has deposed that he had received the weapons in sealed condition, and upon examination he found them in active condition and submitted the report. This witness has also been cross-examined fully by the defence. P.W-8 has also stated that he had seen the sealing of the arms on the place of occurrence but did not view it fully. The evidences of the witnesses when taken in totality

clearly demonstrate that the petitioners were caught with arms; the date, time, place and the manner of occurrence have been fully proved beyond all reasonable doubts. The law is well settled that the prosecution has to prove the case beyond all reasonable doubt and not beyond all doubts.

26. The arguments of the learned amicus that both the witnesses to seizure ought to have been taken from amongst the public since only one of them having been taken from amongst public, the conviction cannot be sustained in law, is devoid of any merit. In the present case, out of the two seizure witnesses, one (P.W-12) was certainly taken from amongst the public and the other one was the driver of the police vehicle who was certainly not a part of the raiding team. P.W.-12 has partly supported the prosecution case inasmuch as he has not denied his signature on the seizure lists and arrest memos. and so far as the other seizure witness i.e P.W. 8 the driver of the vehicle is concerned, he has fully supported the prosecution case and has been thoroughly cross examined and there has been no cross examination of P.W.-8 with regard to any false implication or challenging his status as independent witness. In the judgment passed by Hon'ble Supreme Court reported in (1996) 11 SCC 685 (supra), it has been held that before conducting a search, the police officer concerned is required to call upon some independent and respectable witness of the locality to witness the search and in a case it may happen that no such person is available and even if available, is not willing to be a party to such search and it may also happen 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. In the said case, the Hon'ble Supreme Court recorded 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.

27. The Hon'ble Supreme Court has taken into account the other circumstances i.e. the seized arm was not packeted and sealed and there was no evidence to indicate that with whom the revolver was after its seizure by Inspector till it was sent to the Arms Expert for testing and this missing link also made the prosecution case weak. The Hon'ble Supreme Court considering the totality of the infirmities was of the view that the appellant before the Hon'ble Supreme Court was entitled to the benefit of reasonable doubt. Paragraph nos.5 and 6 of the aforesaid judgment are quoted as under:

"5. It was first contended on behalf of the appellant that since no independent witness was examined by the prosecution to prove the alleged recovery of the arms and ammunition from the appellant the Designated Court was not justified in convicting him relying solely upon the evidence of the two police officers. It was next contended that since no evidence was led by the prosecution to prove that the offensive articles were packeted and sealed after their seizure the possibility of tampering with them could not be ruled out. It was lastly contended that from the test report of PW 4 (Ex. PF) it would appear that one Head Constable Baita Singh produced the revolver before him (PW 4) but neither was he examined nor was there any other witness to explain how he (the constable) got the revolver from PW 3.

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 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 [1995 Supp (3) SCC 217 : 1995 SCC (Cri) 828] 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."

28. This Court is of the view that said judgment does not apply to the facts and circumstances of this case in view of the fact that one witness from amongst the public was taken into evidence at the time of search though he has not fully supported the prosecution case. The sealing of arms at the place of occurrence has been proved and the Seargent Major had received the arms in a sealed condition. The eye witness as well as another seizure witness i.e. P.W.-8, the driver of the police vehicle, who is also the eye witness has fully supported the prosecution case.

29. In the judgment passed by the Hon'ble Supreme Court in the case of Sans Pal Singh (supra), the public were available, but they were neither associated nor there was any explanation given as to why they were not associated. Rather it came to light that the police party never asked any public witness to be witness at the time of search of the accused and on this ground, the Hon'ble Supreme Court was of the view that it would be unsafe to maintain the conviction of the appellant for the offences of Arms Act under Terrorist and Disruptive Activities (Prevention) Act, 1987. The conviction on the basis of two police officials alone was held to be non-sustainable. The said judgment does not apply to the facts and circumstances of the present case inasmuch as the person from amongst the public has been taken into evidence at the time of search of the accused.

30. In the judgement passed by Hon'ble Supreme Court in the case of Amarjit Singh (supra), it has been held that 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. In such circumstances, the Hon'ble Supreme Court was of the view that the prosecution failed to establish its case beyond all reasonable doubt. In the present case, PW-8 has clearly deposed that he had seen the process of sealing of the recovered arms but had not fully seen the sealing at the place of occurrence; the factum of seizure has been supported by all other prosecution witnesses and the Sergeant Major has deposed that he received the arms from the investigating officer of the case in a sealed condition. There is no evidence on record to

disbelieve that the seized arms were sealed at the spot and therefore, this judgment also does not apply to the facts and circumstances of the present case.

31. This Court has also considered the arguments of the learned amicus and referred to the materials on record while recording the aforesaid findings in order to be sure as to whether the impugned judgements suffer from any perversity or material irregularity while convicting the petitioners. This Court has also not found any reasons to interfere with the impugned judgements which are well discussed, supported with sound reasons and judicial pronouncements and recorded as well as considered the objections raised by the petitioners while appreciating the evidences and have rejected the objections by citing reasons.

32. The findings of the learned trial court and the appellate court have also been quoted and discussed above. This Court finds that the learned courts have meticulously examined the materials on record and have also considered the inconsistencies in the evidences as argued from the side of the defence. Although the defence witness has stated that they had gone to Dy. S.P for the purposes of lodging a complaint, the defence evidence was not believed in view of the fact that no receiving for complaint made or any other document has been produced by the defence to prove its point, This Court finds that the place of occurrence, the time of occurrence, and the manner of occurrence have been fully established by the prosecution beyond all reasonable doubt. All the basic ingredients to convict the petitioners for the offence they were tried have been fully proved beyond all reasonable doubts.

33. The Hon'ble Supreme Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 at Para-9 as under:-

"9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has

resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. (See in this context the decision of this Court in Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305: 1993 SCC (Cri) 36]). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction."

34. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at Para-13 as follows:

"13. It is well settled that revisional interference may be justified where:

(i) the decision is grossly erroneous.

(ii) there is no compliance with the provisions of law.

(iii) the finding of fact affecting the decision is not based on evidence.

(iv) material evidence of the parties is not considered and

(v) judicial discretion is exercised arbitrarily or perversely."

35. Considering the entire facts and circumstances of the case and the limited scope for interference in revisional jurisdiction, this Court does not find any material irregularity or perversity to interfere with the impugned judgments which are upheld and this criminal revision petition is hereby dismissed.

36. Bail bond furnished by the petitioner is cancelled.

37. This Court appreciates the efforts of Mrs. Prerna Jhunjhunwala, the learned Amicus who has meticulously gone through the records and ably assisted the Court arguing this criminal revision on behalf of the petitioners.

38. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of

bill(s). She shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017 as revised from time to time.

39. Let a copy of this order be communicated to the court concerned through "email/FAX".

(Anubha Rawat Choudhary, J.) Saurav/