Jharkhand High Court
Bandhan Yadav vs The State Of Jharkhand .... .... Opp. ... on 13 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 784 of 2015
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Bandhan Yadav, Son of Late Madho Yadav, Resident of Village
- Tetariya Bhandaro, P.O. and P.S. - Barhi, District -
Hazaribagh, Jharkhand. .... .... Petitioner
Versus
The State of Jharkhand .... .... Opp. Party
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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. P.C. Sinha, Advocate.
For the State : Mr. Rajesh Kumar, A.P.P.
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JUDGMENT
CAV On Dated- 01.07.2024 Pronounced On- 13.09.2024
Heard learned counsel for the parties.
2. In this criminal revision, the petitioner has challenged
the legality, propriety and correctness of his conviction and
sentence for the offences punishable under Section 25(1-b)a
and 26 of the Arms Act, 1959 passed by the learned Sub
Divisional Judicial Magistrate, Hazaribagh in G.R. No. 2916 of
2005 and T.R. No. 331 of 2009 (arising out of Barhi P.S. Case
No. 254 of 2005), whereby and whereunder vide judgment
dated 02.09.2009, the petitioner has been held guilty and
sentenced to undergo R.I. of two years along with fine of Rs.
2,000/- for the offence under Section 25(1-b)a of the Arms Act,
1959 and same punishment has also been imposed for the
offence under Section 26 of the Arms Act, 1959 with default
stipulation, which has been upheld and confirmed in Criminal
Appeal No. 138 of 2009 vide judgment dated 07.05.2015
passed by learned Additional Sessions Judge-III, Hazaribagh.
Factual Matrix
3. As per F.I.R. (Exhibit-3), the allegation is that S.I.
Naresh Prasad Sharma, Officer-in-Charge, Barhi P.S. has
received a confidential information on 24.10.2005 that
notorious criminals namely, Suresh Sao and Shankar Rawani
along with co-accused are hiding in the house of one Bandhan
Yadav (present petitioner) in Village - Tetariya, Bhandaro. The
informant with the assistance of officers of nearby police
station and armed forced conducted a raid in mid-night at the
house of present petitioner. It is alleged that during raid, some
sound of moving motorcycle was heard and the motorcyclist
was apprehended, who disclosed his name as Bandhan Yadav
(present petitioner). On search, a loaded pistol and cartridges
were recovered from his waist and two empty cartridges of
0.315 bore was also recovered from his pocket. It is alleged
that due to fear of notorious criminal Suresh Sao, no local
witnesses were available for completing the formality of search
and seizure, so the seizure was prepared in presence of police
officers and copy thereof given to accused Bandhan Yadav and
his brother Babu Lal Yadav.
4. After completion of the investigation, police submitted
charge sheet against the petitioner for the aforesaid offences.
The petitioner denied the charges levelled against him and
claimed to be tried.
5. In course of trial, altogether 08 witnesses were examined
by the prosecution, which are as follows:-
P.W.-1 : S.I. Naresh Prasad Sharma, who is the informant and
member of raiding party.
P.W.-2 : Nand Kishore Shah, Constable No. 329, witness of
seizure, declared hostile.
P.W.-3 : Surya Tubid, Constable No. 13, witness of seizure,
declared hostile.
P.W.-4 : Mahendra Singh Munda, Circle Inspector, Ramgarh
Circle.
P.W.-5 : Pran Ranjan Kumar, Officer-in-Charge of Barkatta
Police Station.
P.W.-6 : Pradeep Kumar Singh, S.I. of Ichak Police Station,
Hazaribagh.
P.W.-7 : Nageshwar Rajak, the then S.I. of Koderma Police
Station.
P.W.-8 : A.S.I. Rampati Yadav, Formal witness, who have
produced the seized materials of this case.
Material Exhibit-I is a pistol and Material Exhibit-II is
the cartridges, which were produced without sealed cover,
mentioning of the case number and signature of officers.
The case of accused is denial of occurrence and false
implication by police only on the basis of suspicion and no
firearm and cartridges were recovered from his possession.
6. The learned trial court, after evaluation of evidence, both
oral as well as documentary arrived at conclusion of guilt of
the petitioner and convicted and sentenced him as stated
above, which has been affirmed by the learned appellate court
and assailed in this revision.
7. Learned counsel for the petitioner has submitted that
the impugned judgment passed by the learned trial court as
well as the learned appellate court are absolutely perverse,
illegal and fit to be set aside. It is case pertaining to recovery of
one pistol loaded with one live cartridge and two empty
cartridges in the dead of night at about 2:00 AM. The
Investigating Officer of the case was also member of the raiding
party. The very genesis of occurrence as alleged in the FIR is
that a confidential information was received by the informant
that notorious criminal Suresh Sao and Shankar Sao are
staying at the house of the present petitioner, Bandhan Yadav
for two days at Village - Tetariya Bhandaro. It is very
surprising that none of the notorious criminals were
apprehended from the house of the petitioner. Petitioner is not
a notorious criminal, rather a simple villager and having no
criminal antecedent. He has been roped in this case showing a
pistol and empty cartridges, which were never sealed at the
place of occurrence and produced before the Court as open box
collected from malkhana of the police station. No identity has
been established of the seized material, which is alleged to be
recovered from the petitioner in presence of witnesses. It is
surprising that witnesses of seizure, who happens to be police
officer have also turned hostile and flatly denied the factum of
seizure of any pistol from the possession of the petitioner.
8. The trial court as well as appellate court has ignored the
above vital facts while holding the petitioner guilty for the
offence under Section 25(1-b)a of the Arms Act, 1959. As a
matter of fact, no recovery affected from the possession of the
petitioner, rather when the police failed to apprehend any of
the notorious criminal from the house of the petitioner, then
false case has been instituted against the petitioner, showing
frustration of the police officers. The conviction and sentence of
the petitioner under Section 26 of the Arms Act, 1959 is
absolutely unwarranted inasmuch as, there is no ingredient of
secret concealment / contravention of the provisions of Arms
Act, as such, impugned judgment and sentence is fit to be set
aside.
9. On the other hand, learned APP appearing for the State
controverting the aforesaid contentions raised on behalf of the
petitioner has contended that there are concurrent findings of
the guilt of the petitioner for the offences charged against him.
The learned trial court as well as the appellate court have very
wisely, aptly apprised, scanned and evaluated the oral and
documentary evidence adduced by the prosecution during trial,
which has not been rebutted by the defence in any manner and
conclusively proved the guilt of the present petitioner. There is
no merits in this revision, which is fit to be dismissed.
10. I have given anxious consideration to the overall aspects
of this case and gone through the record in the light of
contention raised on behalf of both sides. It appears that the
definite case of prosecution that upon confidential information
about presence of notorious criminal in the house of present
petitioner, the raid was conducted in the odd night of
24.10.2005 by the informant (P.W.-1 Naresh Prasad Sharma)
and other police personnel. It is also case of prosecution that
due to non-availability of independent witness of search and
seizure, the same was conducted in presence of Constables
(P.W.-2 & 3), who have only admitted their signatures over the
seizure and specifically stated that no search and seizure was
affected in their presence and they have seen no recovery of
any pistol or cartridge from the possession of the present
petitioner. Although, the other witnesses affirmed that after
seizure of the pistol and cartridges, the same was sealed and
signed by the witnesses and also sent for its examination to
test the working condition. The seized material produced by
P.W.-8 Rampati Yadav clearly destructive of the aforesaid
evidence of witnesses inasmuch as the seized material
(Exhibit-1 & 2) were present without seal and signature and
without any mark showing that the same were recovered in
connection with the present case. It is also admitted fact that
the petitioner was never a notorious criminal nor any
relationship with the alleged notorious criminals mentioned in
the FIR has been established by the prosecution with the
present petitioner. Therefore, the entire exercise by the
prosecution is shrouded with doubt. The alleged search,
seizure and recovery could not be believed. I find that the
learned trial court as well as appellate court has completely
ignored the vital evidence of the witnesses as regards search
and seizure of firearm and cartridges from the possession of
the petitioner as well as its connection with the present case
without any seal and signature of the officers and witnesses at
the time of production of the same before the Court, as such,
the impugned judgments and order suffer from perversity and
material illegality, which cannot be sustained in the eyes of
law.
11. In view of the aforesaid discussion and reasons, I find
merits in this revision, which is hereby allowed and the
impugned judgments and order passed by the learned trial
court as well as learned appellate court are hereby set aside
and petitioner is acquitted from the charges, for which he has
been convicted and sentenced.
12. The petitioner is on bail, as such he is discharged from
the liability of bail bonds and sureties shall also be discharged.
13. Let a copy of this judgment along with trial court record
be sent to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated 13/09/2024
Sunil/-NAFR
