Ali Imam vs The State Of Bihar (Now Jharkhand)
2024 Latest Caselaw 9043 Jhar

Jharkhand High Court

Ali Imam vs The State Of Bihar (Now Jharkhand) on 9 September, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

               Cr. Appeal (D.B.) No. 133 of 1997 (R)
    [Against the judgment and order of conviction and sentence dated 29.05.1997
    passed by Sri D.P. Singh, learned Additional Judicial Commissioner-IV,
    Ranchi in Sessions Trial No. 190 of 1993]
                               ...........
    Ali Imam, S/o Sahin Pahalwan, R/o Badi Masjid, Hindpiri, P.S.
    Hindpiri, District- Ranchi                      ... ... Appellant
                               Versus
    The State of Bihar (now Jharkhand)             ... ... Respondent
                               ...........
    For the Appellant            : Mr. A.S. Dayal, Advocate
    For the State                : Mr. Vishwanath Roy, Spl. P.P.
                                PRESENT
            HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
          HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                               ...........
                            JUDGMENT

Order No. 17/Dated, the 9th September, 2024 Per Rongon Mukhopadhyay, J.

Heard Mr. A.S. Dayal, learned counsel for the appellant and Mr. Vishwanath Roy, learned Spl. P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 29.05.1997 passed by Sri D.P. Singh, learned Additional Judicial Commissioner-IV, Ranchi in Sessions Trial No. 190 of 1993, whereby and whereunder, the appellant has been convicted for the offences punishable u/s 307 of the IPC and Section 25(A)/26 of the Arms Act and has been sentenced to undergo R.I. for life for the offence u/s 307 of the IPC and R.I. for 05 years for the offence u/s 25(A)/26 of the Arms Act. Both the sentences were directed to run concurrently.

3. The prosecution case arises out of the self-statement of S.I., M.K. Shrivastava recorded on 11.12.1992, in which, it has been stated that from 5:30 A.M. onwards he and the other Police personnel were on rounds and when at 5:30 A.M. they reached the road near Badi Maszid they detected 2-3 persons with arms. As the Police party went near them they started firing and one of the bullets passed over the head of the informant. The miscreants were chased by the Police and one of them was apprehended with a double barrel gun who disclosed his name as Ali Imam (appellant). On search a double barrel gun from which firing was done moments ago and a fired cartridge were recovered which were seized. The apprehended accused had disclosed the name of the two miscreants who managed to flee away as Md. Ekram and Chingaria.

Based on the aforesaid allegations Kotwali P.S. Case No. 792/1992 was instituted for the offences punishable u/s 188/307/353/414 of the IPC, Section 25(i)(b)/26/27 /35 of the Arms Act and Section 4/5 of the Explosive Substances Act. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 190 of 1993. Charge was framed against the accused for the offence u/s 307, 414 of the IPC and Section 25(A)/26 of the Arms Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as seven witnesses in support of its case.

5. P.W.1 (Anwar Ali) and P.W.2 (Md. Nesar Khan) did not support the case of the prosecution and were declared hostile by the prosecution.

6. P.W.3 (Mrityunjay Kumar Shrivastava) is the informant who was posted as an Officer-Incharge in Hindpiri P.S. and on 11.12.1992 at about 5:30 A.M. he was on his rounds near Badi Maszid when he saw 2-3 persons who had fired upon the Police and had also exploded bombs. However, no Police personnel suffered any injury. He has stated that out of three miscreants one was apprehended while two managed to flee away. The miscreant who was apprehended disclosed his name as Ali Imam and from his possession a double barrel gun was recovered. He has proved the seizure list which has been marked as Exhibit-2. He has proved the fardbeyan which has been marked as Exhibit-3. The formal FIR has been proved and marked as Exhibit-4.

In cross-examination, he has deposed that on 11.12.1992 there was a curfew in the city of Ranchi.

Though his cross-examination was deferred due to paucity of time but he never turned up for further cross-examination.

7. P.W.4 (Madhav Kumar Singh) was posted at Hindpiri P.S. and on 11.12.1992 at 5:30 A.M. he had gone for rounds along with the Officer-Incharge of Hindpiri P.S. When they reached near Badi Maszid they found 2-3 persons standing with arms. When they got down from the vehicle one of the miscreants had thrown a bomb while another fired at him. The bullet passed over the head of the Officer-Incharge. The miscreants were chased and one of them was apprehended with a double barrel gun who disclosed his name as Ali Imam. He had also taken the name of Md. Ekram and Chingaria as his accomplices. The double barrel gun was seized and a seizure list was prepared.

In cross-examination, he has deposed that there was a 24 hour curfew in place. He has deposed that he had seen the persons firing at them.

8. P.W.5 (Harendra Kumar Singh) has been tendered by the prosecution.

9. P.W.6 (Shilbanush Bakhla) was posted as a Sergeant Major, Police Line, Ranchi and on 19.12.1992 he had examined one country made double barrel gun and one twelve Bore cartridge (empty) and had found the following:

1. Double barrel gun - about 118.5 cm long, with a wooden butt of about 42 cm I found "Force 6614 was marked on it. This D/B gun is of twelve Bore it was effective and could be used to fire. Both barrels were found with gun powder particles. This can fire twelve bore live cartridge and can cause damage to life and Property. I marked 1/S for its identification.

2. The empty cartridge of twelve bore was found to have been used. It could be used by any effective twelve bore fire arms to cause damage to life and property. This barrels of gun seized was having particles of gun powder.

It appears that this cartridge was fired by the said D/B gun.

He has proved the report which has been marked as Exhibit-5.

In cross-examination, he has deposed that the items

which were produced by the Investigating Officer of the case were not sealed when produced before him. There was no particular mark put by the Investigating Officer on them. There was no paper in his possession as to in which case the items were sent to him.

10. P.W.7 (Pramod Kumar Shrivastava) was posted as an Assistant Sub-Inspector of Police and on 11.12.1992 he was assigned to investigate the incident. He has proved the endorsement of M.K. Shrivastava, by which, he was handed over the investigation and which has been marked as Exhibit-3/1. He has identified the signature of A.K. Singh, Sub-Inspector below the endorsement which has been marked as Exhibit-3/2. The signature of Laxman Pandey and D.P. Singh in the formal FIR has been proved and marked as Exhibit-4/2. He has proved the signature of Devendra Choudhary and M.K. Shrivastava over the seizure list which has been marked as Exhibit-6. He had recorded the re-statement of the informant and had also inspected the place of occurrence which is the road adjacent to Badi Maszid in Hindpiri. He had also recorded the statement of other witnesses. The report of the Sergeant Major was received by him.

In cross-examination, he has deposed that he had not sealed the seized articles before sending the same for analysis. No mark was also put on them.

11. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the incident.

12. The accused has examined himself as a defence witness.

13. D.W.1 (Ali Imam) has stated that he was in his room sleeping when the Police came and asked him about the whereabouts of Ekram and Chingaria. When he said that Ekram who is his elder brother is not in the house Police instead took him away. Later on Ekram was killed by the Police.

14. It has been submitted by Mr. A.S. Dayal, learned counsel for the appellant that there is no evidence worth consideration which would indicate about the appellant being guilty of the offence. It has been submitted that the prosecution has failed

to ascertain as to whether the double barrel gun sent for analysis was the same gun from which the purported firing was made by the appellant.

15. Mr. Vishwanath Roy, learned Spl. P.P. has submitted that the appellant had fired from a double barrel gun and the informant had a providential escape as the bullet had just passed over his head. The appellant was apprehended at the spot with a double barrel gun and an empty cartridge which signifies the truthfulness of the allegation against the appellant.

16. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records.

17. As per the prosecution case the appellant was apprehended with a double barrel gun by the Police after he had fired from the same at the Police. On the day of the incident there was a curfew in the city of Ranchi on account of the unrest created due to the demolition of Babri Maszid. When the Police personnel headed by the Officer-Incharage of Hindpiri P.S. was on round the incident is said to have taken place. P.W.3 is the informant and the Officer- Incharge of Hindpiri P.S. but he did not turn up for cross- examination as such his evidence has to be discarded. P.W.4 is the only other member of the Police party who has been examined by the prosecution but he in his cross-examination has deposed that after the miscreants had blasted the bomb after one minute the firing had been made. The natural reaction in such circumstances would be to scurry for cover and that to when as per P.W.4 the blast occurred near the vehicle and apart from a loud sound there was a thick cover of smoke. In such scenario it would be difficult to identify the person who is firing. P.W.4 has also deposed that he had seen the person who had fired but he has not named the appellant as the said person.

18. The other vital aspect of the case is the ballistic report and the evidence of P.W.6 and P.W.7. P.W.6 is the Sergeant Major who has stated about the existence of gun powder particles in both the barrels of the gun and the empty cartridge was also found to have been used. However, it has not been proved by the prosecution

that the said gun was used in the firing as P.W.6 has categorically stated that the double barrel gun and the cartridge were not found sealed when the same was produced before him which fact has been corroborated by the Investigating Officer in his evidence as P.W.7.

19. The intrinsic value of the evidence of P.W.6 and P.W.7 which has demolished the case of the prosecution has not been properly appreciated by the learned trial court. We, therefore, on the basis of the discussions made hereinabove set aside the judgment and order of conviction and sentence dated 29.05.1997 passed by Sri D.P. Singh, learned Additional Judicial Commissioner-IV, Ranchi in Sessions Trial No. 190 of 1993.

20. This appeal is allowed.

21. Since the appellant is on bail, he is discharged from the liability of his bail bond.

(Rongon Mukhopadhyay, J.)

(Pradeep Kumar Srivastava, J.)

High Court of Jharkhand at Ranchi Dated, the 9th day of September, 2024.

A. Sanga/NAFR