Jharkhand High Court
Brajesh Kumar Singh Son Of Jagarnath ... vs The State Of Jharkhand ... Opposite ... on 18 September, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1502 of 2016
Brajesh Kumar Singh son of Jagarnath Singh, resident of Village-
Chhatarpur, P.O. & P.S.- Chhatarpur, District- Palamau (Jharkhand)
... ... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
For the State : Mr. Mohua Palit , A.P.P.
---
Lastly heard on 12.09.2024.
10/18.09.2024 Heard learned counsel for the parties.
2. This criminal revision is directed against the judgment dated
16.08.2016 passed by the learned Sessions Judge, Garhwa in Criminal
Appeal No. 13 of 2014 whereby and whereunder the learned appellate
court upheld the conviction of the petitioner for the offences under
Section 25(1-B)a of Arms Act and Section 120(B)(2) of the Indian
Penal Code (hereinafter referred to as IPC) and modified the sentences
to the period undergone by him.
3. The learned Chief Judicial Magistrate, Garhwa vide judgment
dated 13.03.2014 passed in G.R. Case No. 1139 of 2011 (Trial No.30
of 2014) arising out of Garhwa P.S. Case No.296 of 2011 had convicted
the petitioner for the offence under Section 25(1-B)a of the Arms Act
and had further convicted the petitioner and co-accused persons
namely, Rajesh Kumar and Shakil Ahmad @ Sonu Ansari under
Section 120(B)(2) of IPC. The learned trial court had acquitted the co-
accused persons namely, Rajesh Kumar and Shakil Ahmad @ Sonu
Ansari from the charge under Section 25(1-B)a of Arms Act and had
also acquitted all the three accused persons including the petitioner
from the charges under Sections 26 and 35 of Arms Act.
4. The learned trial court had sentenced the petitioner to undergo
Simple Imprisonment for 2 ½ years and fine of Rs.10,000/- and in
payment of default of fine, to further undergo Simple Imprisonment for
02 months for the offence under Section 25(1-B)a of Arms Act and had
further sentenced the petitioner and co-accused persons to undergo
Simple Imprisonment for 06 months for the offence under Section
120(B)(2) of IPC.
Arguments on behalf of the petitioner
5. The learned senior counsel appearing on behalf of the petitioner
submitted that although both the courts have given concurrent findings
with regard to conviction of the petitioner, but the evidence of PW-1,
PW-5 and DW-1 have not been properly examined. The learned counsel
also submitted that the appellate court has confined the sentence to the
period already undergone, but since the petitioner was a government
servant, the petitioner is fighting for his acquittal.
6. While giving the background of the case, the learned counsel for
the petitioner submitted that the petitioner was implicated in the present
case on the basis of confessional statement of the co-accused Sonu
Khan @ Shakil Ahmad @ Sonu Ansari recorded in connection with one
case of dacoity who had disclosed that the petitioner had recovered one
pistol from the possession of Sonu Khan @ Shakil Ahmad @ Sonu
Ansari, but when the father of the Sonu Khan @ Shakil Ahmad @ Sonu
Ansari came there, then he negotiated for release of his son at Rs.
50,000/- with the petitioner and in order to let go Sonu Khan @ Shakil
Ahmad @ Sonu Ansari, the petitioner took away the pistol and out of
Rs.50,000/-, an amount of Rs.10,000/- was paid and the rest amount of
Rs.40,000/- was still to be paid. The confessional statement of Sonu
Khan @ Shakil Ahmad @ Sonu Ansari was recorded on 21.08.2011
and on the very next date i.e. on 22.08.2011, a raid was conducted in
the barrack where many constables were there and it was alleged that
by the side of the bed of the petitioner, one pistol, 1 live cartridge, 2
misfired cartridges and Rs.10,000/- were recovered from the box of the
petitioner.
7. The learned counsel while assailing the impugned judgments
submitted that the box was not seized and the raid was conducted in
absence of the petitioner though he was on duty. He has further
submitted that there was no lock in the box.
8. The learned counsel further submitted that the box could not be
attributable to the petitioner as there were many persons living in the
barrack and PW-5 in his cross examination in Paragraph-8 has stated
that in the seizure list, it was not mentioned that the box was belonging
to the petitioner.
9. The learned counsel for the petitioner also submitted that the box
of the petitioner was under lock and key and at the request of the
petitioner and upon an order passed by the learned trial court, the
defence witness had brought the box in the court which was found
locked and it was opened in the court in front of the petitioner. The
learned counsel submitted that the aforesaid aspects of the matter
clearly show that there was no recovery from the box of the petitioner
and therefore, the prosecution has completely failed to prove the case
against the petitioner beyond all reasonable doubt.
Arguments on behalf of the Opposite Party-State
10. The learned A.P.P. appearing on behalf of the Opposite Party-
State, on the other hand, referred to Paragraph-11 of the learned trial
court's judgment and submitted that the witnesses have fully supported
the prosecution case and the impugned judgment convicting the
petitioner does not call for any interference in revisional jurisdiction.
Findings of this Court
11. The prosecution case is based on the self-statement of S.I.
Lakhan Ram, Officer-in-charge, Garhwa P.S. (PW-3) recorded on
22.08.2011 at 02:30 hours at the Police Barrack of Garhwa P.S. stating
that on 21.08.2011 at 05:30 P.M, he received secret information that
Sonu, Chintu Pandey and Mubarak Ansari, who are involved in Ranka
Dacoity, are moving on a black coloured Discover Motorcycle without
number plate on the Ranka Road for committing offence. On the basis
of the information, the Informant alongwith S.I. Ashok Kumar Sinha
and A.S.I. B.N. Ojha proceeded on the motorcycle of Police Vijay
Kumar Singh and instructed A.S.I. Sanmukh Ram to follow the armed
police party. When the Informant reached near a puncture repairing
shop on the pitch road near Annraj Nawadih Village, he saw one
Discover Motorcycle without number plate standing there and two
persons were pushing one white Maruti 800 Car and one person was
sitting on the driver seat. On suspicion, when the Informant enquired
about the Discover Motorcycle, the person sitting on the driving seat
got down and told the Informant that the motorcycle and Maruti Car
belongs to him and disclosed his name as Shakil Ahmad. When the
Informant tried to apprehend Shakil Ahmad, he started to flee away. In
the meantime, A.S.I. Sanmukh Ram alongwith the armed police party
arrived there and after chase, Shakil Ahmad was apprehended. On
further enquiry, he disclosed his name as Sonu Khan @ Shakil Ahmad
@ Sonu Ansari. Thereafter, on 21.08.2011 at about 08:00 P.M., the
Informant recorded the confessional statement of Shakil Ahmad in
presence of two independent witnesses in which he disclosed in detail
about five occurrences under Garhwa P.S. and one occurrence under
Ranka P.S. in which he was involved. He further disclosed that one
month ago, he had purchased one 9 MM pistol with three cartridges
from Imtiyaz Khan of Nagar Untari, who sells arms, for a sum of
Rs.22,000/- and 20- 25 days ago; when he was making a plan with his
friend Mubarak Ansari for committing an offence in the noon, Police
Brajesh Kumar and Police Rajesh Kumar of Garhwa police station had
entered into his house all of a sudden and had caught him, Mubarak
Ansari escaped and police had recovered one 9 MM pistol and two-
three fifteen pistols from his possession and both the constables had
started threatening him. In the meantime, his father namely, Fujail
Ahmad and uncle Ilahi had come there and had requested them to leave
him. Both the constables had told them that the pistol appears to be good
and they like it and they wanted to keep the same. Thereafter, both
constables had demanded Rs.50,000/- for not lodging any case against
him. After bargaining, both constables had agreed at Rs.40,000/- and
his father had given Rs.10,000/- and had promised to pay Rs.30,000/-
till the evening. Thereafter, both the constables went away with the 9
MM pistol and Rs.10,000/-.
Thereafter, on the basis of the confessional statement of Sonu
Khan @ Shakil Ahmad @ Sonu Ansari, the Informant discussed the
matter with his superior officers and on 22.08.2011 at 01:00 P.M., the
Informant searched the box of Police No.796 Brajesh Kumar Singh
(Petitioner) placed in the Police Barrack at the south-western side of
Garhwa police station in presence of A.S.I. Kameshwar Singh, S.I.
Ashok Kumar Sinha and A.S.I. Awadhesh Prasad Singh. On search, the
Informant recovered one 9 MM pistol loaded with one live cartridge,
two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500
denomination). S.I. Awadhesh Prasad Singh prepared a seizure list as
per law and two witnesses namely, S.I. Ashok Kumar Sinha and A.S.I.
Kameshwar Singh made their signatures on the seizure list. On enquiry,
the guard and havildar informed that Police 796 Brajesh Kumar Singh
has gone out. After search, Police No.811 Rajesh Kumar was also not
found there.
12. On the basis of the self-statement, a formal F.I.R. was registered
as Garhwa P.S. Case No.296 of 2011 dated 22.08.2011 under Section
120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act against
the petitioner and Police No.811 Rajesh Kumar and Shakil Ahmad @
Sonu Ansari.
13. Thereafter, the Investigating Officer submitted Charge-sheet No.
02/2012 dated 13.01.2012 against Sonu Khan @ Shakil Ahmad @ Sonu
Ansari under the same sections and on 03.03.2012, cognizance of the
offence was taken in the case under the same sections. Thereafter, the
Investigating Officer submitted Supplementary Charge-sheet
No.92/2012 dated 29.02.2012 under the same sections against Police
No.811 Rajesh Kumar and on 19.03.2012, cognizance of the offence
was taken him also under the same sections. On 07.06.2012, charges
under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms
Act were framed against Sonu Khan @ Shakil Ahmad @ Sonu Ansari
and Rajesh Kumar which were read over and explained to them in Hindi
to which they pleaded not guilty and claimed to be tried.
14. Thereafter, the Investigating Officer submitted Supplementary
Charge-sheet No.370/2012 dated 21.09.2012 under Section 120(B) of
IPC and Sections 25(1-B)a, 26, 35 of the Arms Act against the petitioner
and on 21.09.2012, cognizance of the offence was taken him also under
the same sections.
15. On 10.01.2013, charges under Section 120(B) of IPC and
Sections 25(1-B)a, 26, 35 of the Arms Act were framed against the
petitioner (Format of Charge was again prepared and signed on
12.03.2014) which were read over and explained to him in Hindi to
which he pleaded not guilty and claimed to be tried.
16. In course of trial, the prosecution examined altogether 10
witnesses in order to substantiate the charges. PW-1 is A.S.I.
Kameshwar Singh, PW-2 is Havaldar Bishnu Sharma, PW-3 is S.I.
Lakhan Ram who is the Informant of the case and was posted as the
Officer-in-charge, Garhwa P.S., PW-4 is A.S.I. Umesh Prasad of
Garhwa Police Station and the Investigating Officer of the case, PW-5
is S.I. Ashok Kumar Sinha of Garhwa Police Station, PW-6 is Pandey
Ajay Kumar, Sergeant Major, PW-7 is S.I. Ronkul Islam Khan of
Garhwa Police Station, PW-8 is A.S.I. Anil Mahto of Garhwa Police
Station, PW-9 is S.I. Awadhesh Prasad Singh and PW-10 is Home
Guard Dilip Kumar Dubey posted at P.P. Office, Garhwa.
17. The prosecution exhibited the seizure list as Exhibit-1, self-
statement of S.I. Lakhan Ram (Informant) as Exhibit-2, Report of
Sergeant Major as Exhibit-3, sanction order as Exhibit-4, confessional
statement of Shakil Ahmad @ Sonu Khan available on the records of
S.T. No.289/2012 as Exhibit-5 and the endorsement on the self-
statement of the Informant as Exhibit-6. The prosecution produced and
exhibited the pistol as Material Exhibit-I and 03 cartridges as Material
Exhibits- I/1, I/2 and I/3.
18. PW-1 (A.S.I. Kameshwar Singh) was a member of the raiding
team. He is a seizure list witness of the recovery of 9 MM pistol loaded
with one live cartridge, two misfired cartridges of 9 MM and
Rs.10,000/- from the box the box of the petitioner kept at the Police
Barrack of Garhwa Police Station. He has supported the facts of
apprehending Shakil Ahmad @ Sonu Ansari and recording his
confessional statement by the Informant. He exhibited the seizure list
as Exhibit-1. During cross-examination on behalf of the petitioner, PW-
1 admitted that he is only a seizure list witness and except that he does
not know anything about the case. The box mentioned in the seizure list
was found near the bed of the petitioner. It was not written in the seizure
list that the box was found near the bed of the petitioner. 30-35
constables were living in the said barrack and all have their separate
beds and boxes. The seized articles have not been produced in court
before him. Seizure list was prepared in his presence, but he had not
prepared the seizure list and he had only signed on the seizure list. There
is no mention of the lock in the seizure list. He does not remember as to
whether the box was locked or open. He denied the suggestion that after
making the seizure list, the petitioner was implicated in the case and
neither the said box belonged to the petitioner, nor the petitioner had
kept article in it. He denied the suggestion that the seizure list is false.
19. PW-2 (Havaldar Bishnu Sharma) deposed that on 22.08.2011 at
about 01:30 P.M., one 9 MM pistol loaded with one live cartridge, two
misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500
denomination) were recovered from the box of the petitioner by S.I.
Awadhesh Prasad Singh and S.I. Ashok Kumar Sinha and a seizure list
was prepared. During cross-examination on behalf of the petitioner,
PW-2 admitted that he had not prepared the seizure list and his signature
is not present in the seizure list and his statement was also not taken by
the police. He further admitted that the investigation was also not
conducted in his presence and the confessional statements of the
accused persons were not recorded in his presence. He also admitted
that he cannot say the name and size of the box from which the pistol
was recovered and no name was written on the box. The petitioner was
not enquired in his presence as to whether the box belonged to him or
not and no enquiry was made from Sonu or the petitioner in his
presence. He also admitted that he cannot say the identification as to
whether box belonged to the petitioner. It has also come in cross
examination of P.W-2 that there were three barracks in which 40 to 45
constables and hawaldars were staying. P.W-2 has also stated during
cross examination that the petitioner was not called upon to say as to
whether the box belonged to him or not.
20. PW-3 (S.I. Lakhan Ram) is the Informant of the case. In his
examination-in-chief, he deposed that on 22.08.2011 at about 01:30
P.M., one illegal 9 MM pistol loaded with one live cartridge, two
misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500
denomination) were recovered from the box of the petitioner and a
seizure list was prepared by S.I. Awadhesh Prasad Singh. He exhibited
the self-statement written by him as Exhibit-2. During cross-
examination on behalf of the petitioner, PW-3 admitted that he had
written the self-statement for instituting FIR on the basis of the
confessional statement of Sonu Khan. He further admitted that he has
not written in the self-statement that at the instance of Sonu Khan, the
fire-arms were recovered from the barrack. He also admitted that he has
not written in the self-statement that the recovered pistol, cartridges and
money was shown to Sonu Khan and the same article were given to the
petitioner and Rajesh by him. Name and number of the petitioner was
not written in the box. He further admitted that the box from which the
illegal pistol and the cartridges were seized was not locked at that time
and the petitioner was not present at the time of seizure. He denied the
suggestion that the said box from which the articles were seized did not
belong to the petitioner.
21. PW-4 (A.S.I. Umesh Prasad) is the Investigating Officer of the
case. He deposed that he took the charge of investigation of the case on
01.06.2012 and submitted charge-sheet against the petitioner on the
basis of the Case Diary written by the previous Investigating Officer
namely, Enaul Haque. During cross-examination on behalf of the
petitioner, PW-4 admitted that he has submitted charge-sheet only
against the petitioner and he has no other connection with the case.
22. PW-5 (S.I. Ashok Kumar Sinha) deposed that the seizure list was
prepared by S.I. Awadhesh Prasad Singh and he is a witness in the
seizure list prepared on 22.08.2011 at 01:30 PM. One 9 MM pistol
loaded with one live cartridge, two misfired cartridges of 9 MM and
Rs.10,000/- (20 notes of 500 denomination) were recovered from the
box of the petitioner. the articles were recovered on the basis of the
confessional statement of Sonu Ansari @ Shakil. During cross-
examination on behalf of the petitioner, PW-5 admitted that the said
box was not locked at the time of seizure. He also admitted that in the
seizure list, box, lock, key or clothes are not mentioned. He further
admitted that the seized articles are not present in court before him. He
denied the suggestion that the seized articles do not belong to the
petitioner and nothing was recovered from his possession.
23. PW-6 (Pandey Ajay Kumar) is the Sergeant Major who has
verified the seized articles of the case. He deposed that he cannot say
whether the seized pistol was country-made or company made. One live
cartridge was found by him in effective condition. He exhibited the
Examination Report as Exhibit-3.
24. PW-7 (S.I. Ronkul Islam Khan) is the other Investigating Officer.
He deposed that he took the charge of investigation of the case on
23.12.2012 and has submitted charge-sheet against Constable Rajesh
Kumar on the basis of the investigation made by the previous
Investigating Officer and later on, he handed over the investigation to
A.S.I. Umesh Prasad. The petitioner declined to cross-examine this
witness.
25. PW-8 (A.S.I. Anil Mahto) is a formal witness who produced one
pistol bearing MR No.48/11 and 03 cartridges in court on the direction
of the Officer-in-charge, Garhwa Police Station. He exhibited the pistol
as Material Exhibit-I and 03 cartridges as Material Exhibits- I/1, I/2 and
I/3. During cross-examination on behalf of the defence, he admitted that
the date 29.10.11 is written on the cartridges.
26. PW-9 (S.I. Awadhesh Prasad Singh) is also an Investigating
Officer of the case. He deposed that he had prepared the seizure list and
had taken the signatures of the witnesses namely, S.I. Ashok Kumar
Sinha and A.S.I. Kameshwar Singh on the seizure list and he had taken
the re-statement of the Informant. He further deposed that one 9 MM
pistol loaded with one live cartridge, two misfired cartridges of 9 MM
and Rs.10,000/- were recovered from the box of the petitioner. He had
got the pistol and the cartridges verified by the Sergeant Major and had
obtained order for prosecution of the accused persons. He exhibited the
sanction order as Exhibit-4. He had also recorded the confessional
statement of the accused Sonu Khan. During cross-examination on
behalf of the defence, PW-9 admitted that the case was registered on
22.08.2011 and the seizure list does not contain the signature of the
petitioner. He further admitted that the seized box was not locked and
the name of the petitioner was not written on the box.
27. PW-10 (Home Guard Dilip Kumar Dubey) is a formal witness.
He exhibited the confessional statement of Shakil Ahmad @ Sonu Khan
as Exhibit-5. During cross-examination on behalf of the defence, PW-
10 admitted that the confessional statement was not recorded in his
presence.
28. On 18.02.2014, statements of the petitioner were recorded under
Section 313 of Cr.P.C. wherein he denied the incriminating evidences
put to him. The petitioner in his defence stated that the police had not
recovered the firearms from his box, his box was locked and key of his
box is still in his possession. The petitioner further stated in his defence
that he was on target since the time of S.P. Garhwa namely, Saket Singh
and he was working as his informer. Therefore, Lakhan Ram, Officer-
in-charge and D.S.P. Ajay Kumar were angry with him and therefore,
he has been implicated by them in the instant case. He stated that he
would give defence witness and produce document.
29. On 18.02.2014, the petitioner filed a petition alongwith an
envelope containing the keys of his box before the learned trial court
praying for production of his box. The learned trial court issued a
direction to produce the box in court and accordingly, A.S.I. Rama
Shankar Singh produced the box of the petitioner in court on
21.02.2014. The petitioner examined A.S.I. Rama Shankar Singh as
DW-1 in his defence. DW-1 in his examination-in-chief, deposed that
in the light of Letter No.321 dated 20.02.2014 of the Officer-in-charge,
Garhwa, he has produced the box of the petitioner in court in connection
with Garhwa P.S. Case No.296 of 2011. He exhibited Letter No.321/14
dated 20.02.2014 as Exhibit-A. He further stated that he has produced
the box of the petitioner from Police Barrack, Garwa. The name
'Brajesh Kumar Singh, Chhatarpur' written on the box has been erased,
but it is readable and, beneath it, 'Jharkhand Police, Garhwa' is written.
The two locks in the box are locked and the box contains articles. He
exhibited the box as Material Exhibit-I. During his cross-examination,
DW-1 admitted that only Jharkhand Police, Garhwa written on the box
is clearly readable. The learned trial court noted that the words of two
lines on the box have been erased and only 'Jharkhand Police, Garhwa'
is readable. He admitted that he is posted at Garhwa since February,
2013. He further admitted that he does not know as to what is kept in
the box and why the box has been brought to the court and he has
brought the box as per the direction of the Officer-in-charge only.
30. The learned trial court after considering the materials on record
recorded it findings at Para-30, 31 and 32 in connection with the charge
under Sections 25(1-B)a of the Arms Act and at Para-35 in connection
with the charge under Section 120(B) of IPC, which are as under:
"30. After hearing the argument of both the parties, I have carefully
gone through the entire records, evidence and the materials
available on it and I find that confessional statement Ext.-5 proves
that co-accused Shakil Ahmad @ Sonu Ansari confessed before S.I.
Lakhan Ram of Garhwa police Station on 21.8.2011 and just on the
second day i.e. on 22.8.2011 at 1.30 P.M., the box of police
Constable Brajesh Kumar Singh kept in police barrack situated in
Garhwa Police Station premises was searched and one 09 M.M.
illegal pistol, one live cartridge and two misfired cartridges along
with rupees ten thousand have been recovered from the aforesaid
box of Brajesh Kumar Singh. Seizure list for the aforesaid seizure
has been prepared which has been marked as Ext.-1. S.I. Lakhan
Ram who was the officer-in-charge of Garhwa Police Station gave
his self-statement on the basis of which F.I.R. has been instituted
against the aforesaid accused persons and after investigation
Charge sheet has been submitted. Sanction for the prosecution under
the Arms Act against all the three accused persons named above has
been taken by Deputy Commissioner, Garhwa (Ext. 4). The seized
articles were sent to Sergeant Major who verified and reported that
aforesaid seized 09 M.M. pistol was found effective and one
cartridge was found alive and two were found misfired by the
Sergeant Major.
31. I have discussed the oral and documentary evidences in detail.
P.W.-1 Kameshwar Singh and P.W.-5 Ashok Kumar Sinha are the
seizure list witnesses and police officers of Garhwa Police Station
who were cited as witnesses in this case has fully supported the fact
that aforesaid seized articles (Arms and ammunitions) were
recovered from the box of Brajesh Kumar Singh before them and they
put their signatures on the seizure list (Ext. 1). P.W.-9 Awadhesh
Prasad Singh, the then S.I.. Garhwa Police Station has also stated
that the aforesaid seizure list was prepared by him.
32. On the prayer of the defence, box of Constable Brajesh Kumar
Singh has been brought in court and the same was opened on his
prayer, but it is the clear case of the prosecution that aforesaid arms
and ammunitions were seized from the box of constable Brajesh
Kumar Singh, but his box was not seized. In such circumstances, in
my opinion, the box of Brajesh Kumar Singh may be locked by any
person, either by Brajesh Kumar Singh himself or by any other
person as from the perusal of case record, it is clear that the said
accused Brajesh Kumar Singh was not arrested at the spot or soon
after the seizure of the alleged arms and ammunitions, rather he has
surrendered in court on 16.07.12, whereas seizure has been made on
22.8.2011. During this period, the accused Brajesh Kumar Singh
was quite free to handle his box in his own way at his choice. As such,
in my opinion, showing his box in court under lock is not helpful for
him in any manner. Under the aforesaid facts and circumstances, I
find and hold that the prosecution has been able to prove its case
against accused Brajesh Kumar Singh under Section 25(1-B) a of the
Arms Act.
35. Further, I have to find out as to whether the prosecution has
been able to prove the charge under Section 120(B) of the I.P.C.
against accused persons. As per Section 120(A) of the I.P.C., when
two or more persons agree to do or cause to be done an illegal act,
they commit criminal conspiracy.
Here in this case, prosecution has brought evidence on record
that accused Rajesh Kumar and co-accused Sonu Khan has given an
illegal pistol and three cartridges to accused Brajesh Kumar Singh
and having illegal arms in conscious possession by Brajesh Kumar
Singh is an illegal act. Hente, I find and hold that prosecution has
been able to prove its case under Section 120(B)(2) of the I.P.C.
against all the aforesaid three accused persons namely, (1) Brajesh
Kumar Singh, (2) Rajesh Kumar and (3) Shakil Ahmad @ Sonu
Ansari as main offence under Section 25(1-B)a of the Arms Act which
is punishable with imprisonment not punishable with death or life
imprisonment or rigorous imprisonment as required by Clause 1 of
Section 120(B) of the I.P.C. Offence of this criminal conspiracy
would come under Section 120(B)(2) of the I.P.C..
31. Accordingly, the learned trial court convicted the petitioner only
for the offence under Section 25(1-B)a of the Arms Act and further
convicted the petitioner and co-accused persons namely, Rajesh Kumar
and Shakil Ahmad @ Sonu Ansari under Section 120(B)(2) of IPC and
sentenced them as stated above.
32. The learned appellate court also considered the materials on
record and recorded its findings at Para-9, 10 and 11 which read as
under:
"9. After statement of the accused persons U/s. 313 Cr.P.C., one
witness has been produced in defence. D.W,-1 Rama Shankar Singh
was examined on 21.02.2014. before that an envelope was filed
before the court on 18.02.2014 alongwith a petition on behalf of
accused Brajesh Kumar Singh. It was submitted before the learned
court that the envelop contains keys of the box of the accused Brajesh
Kumar Singh and box be summoned from Police Station. The learned
court below issued direction to produce the box and a copy of the
petition was also forwarded to the P.S.. In pursuance to this order
dated 18.02.14, box was produced on 21.02.2014 by Rama Shankar
Singh, A.S.I. and Rama Shankar Singh was examined and cross-
examined before court. The appellant Brajesh Kumar Singh was in
custody at that time and he was also produced before court.
10. The learned counsel for appellant Brajesh Kumar Singh has
emphasised a lot on this sequence and on the statement of D.W.. On
21.02.2014, the box produced was locked and the two keys were
produced before the court and the two locks of the box could be
unlocked before the court with these keys. The learned counsel for
the appellant has drawn my attention to Para-18 of cross-
examination of P.W.-5 who has stated that the box of Brajesh Kumar
Singh, which was searched, was not locked. I consider that this
submission has got not much force. If the appellant was so sure of
the box, then the attention should have been drawn before the
informant, 1.O. and seizure list witnesses and box should have been
brought before them to draw their attention. But such procedure has
been adopted at the stage of defence when the prosecution witnesses
were already discharged. It is further to be noted that the search was
made on 22.08.11 and the appellant Brajesh Kumar Singh had
surrendered on 16.07.2012. The box was searched by the Officer-In-
charge alongwith other officers in the rank of S.I., A.S.I., who
constituted a team to take out operation. No defence witness has been
examined except D.W.-1 who is official of Town P.S. and has
appeared to produce box before court. The appellants have alleged
false implication, but they have not examined any witness or
produced any document to corroborate the same. The defence set up
by the appellant is not supported with any documentary or oral
evidence. In view of the same, the defence of the appellant of false
implication cannot be accepted. Another point argued on behalf of
appellant is that the appellant Sonu Khan has been acquitted in S.T.
No.289/2012. I consider that when an acquittal of accused is made,
then chain of events is not complete. Sonu Khan is an accused in that
case and was wanted by police. The acquittal in itself is not sufficient
to dislodge the prosecution case that the two constables had
apprehended the 3rd appellant.
11. I consider that the material on record has been meticulously
considered by the learned lower court and has rightly convicted the
appellants. Accordingly, the judgment of conviction is
upheld. .................................."
33. After hearing the parties and perusal of the records of the case,
this Court finds on the basis of the confessional statement of Sonu Khan
@ Shakil Ahmad @ Sonu Ansari made in connection with another
occurrence, on 22.08.2011 at 01:00 P.M., the Informant (PW-3)
alongwith A.S.I. Kameshwar Singh (PW-1), S.I. Ashok Kumar Sinha
(PW-5) and A.S.I. Awadhesh Prasad Singh (PW-9) searched the box of
the petitioner placed in the Police Barrack at Garhwa Police Station and
recovered one 9 MM pistol loaded with one live cartridge, two misfired
cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination).
S.I. Awadhesh Prasad Singh from the box and accordingly, a seizure
list was prepared in which S.I. Ashok Kumar Sinha and A.S.I.
Kameshwar Singh are the seizure list witnesses. Admittedly, the box
from which the fire arms were recovered was not seized by the raiding
party. This Court also finds that upon an application filed by the
petitioner and an order passed by the learned trial court, the box of he
petitioner was produced before the learned trial court on 21.02.2014 by
A.S.I. Rama Shankar Singh who was examined as DW-1. DW-1 in his
examination-in-chief deposed that in the light of Letter No.321 dated
20.02.2014 of the Officer-in-charge, Garhwa, he has produced the box
of the petitioner in court in connection with Garhwa P.S. Case No.296
of 2011 and he exhibited Letter No.321/14 dated 20.02.2014 as Exhibit-
A. He further stated that the two locks in the box are locked and the box
contains articles. He exhibited the box as Material Exhibit-I. During his
cross-examination, DW-1 admitted that only Jharkhand Police, Garhwa
written on the box is clearly readable. The learned trial court noted that
the words of two lines on the box have been erased and only 'Jharkhand
Police, Garhwa' is readable. The box was also opened by the keys
provided by the petitioner. This Court is of the considered view that
even if the defence version of the petitioner is not taken into
consideration, the prosecution has not been able to prove the seizure of
arms from the box belonging to the petitioner which is apparent from
the following discussions.
34. This Court finds that as per the seizure list (Exhibit-1), only the
fire-arms were seized and the box from which the said fire-arms were
recovered was not seized by the Informant and the petitioner was also
not apprehended on the spot, rather he was on duty at the time of seizure
of the fire arms. PW-1 the seizure list witness in his cross-examination
on behalf of the petitioner at Para-20 and 21 has admitted that there is
no mention of the lock in the seizure list and he does not remember as
to whether the box was locked or open. PW-2 in his cross-examination
on behalf of the petitioner at Para-14 has admitted that no name was
written on the box and the petitioner was not enquired in his presence
as to whether the box belonged to him or not. He also admitted at Para-
20 that he cannot say the identification as to whether box belonged to
the petitioner. PW-3 the Informant in his cross-examination on behalf
of the petitioner at Para-10 and 11 has admitted that name and number
of the petitioner was not written in the box and the box from which the
illegal pistol and the cartridges were seized was not locked at that time
and the petitioner was not present at the time of seizure. PW-5 the other
seizure list witness in his cross-examination on behalf of the petitioner
at Para-2 has admitted that the said box was not locked and at Para-6,
he also admitted that in the seizure list, box, lock, key or clothes are not
mentioned.
35. This Court further finds that PW-4 Investigating Officer in his
cross-examination on behalf of the petitioner admitted at that he has
submitted charge-sheet only against the petitioner and he has no other
connection with the case. PW-9 had prepared the seizure list and he is
also an Investigating Officer of the case and in his cross-examination
on behalf of the petitioner at Para-9, he stated that the seizure list does
not bear the signature of the petitioner and at Para-18, he has admitted
that the seized box was open and the name of the petitioner was not
written on the box. PW-8 and 10 are formal witnesses. It has also come
in cross examination of P.W-2 at Para-12 that there were three barracks
in which 40 to 45 constables and hawaldars were staying. P.W-2 has
also stated during cross examination that the petitioner was not called
upon to say as to whether the box belonged to him or not.
36. This Court finds that the prosecution neither seized the box from
where they alleged that the arms and ammunitions were recovered, nor
in the seizure list, it is mentioned about lock, key or clothes in the box
from which the fire arms and ammunitions were seized.
37. Considering the totality of the facts and circumstances of this
case, the facts that the fire arms were seized from the side of the bed of
the petitioner from an unlocked box in absence of the petitioner and
neither the box was seized to prove that it belonged to the petitioner,
nor other articles available in the box were seized to connect the
petitioner with the box from which the firearms were seized and the
cross examination of the witnesses clearly revealed that the box from
which the firearms were seized did not mention the name of the
petitioner, this Court finds that non-seizure of the box from which the
incriminating articles were recovered is a serious infirmity on the part
of the prosecution and the prosecution has also failed to connect the
seized firearms and the box from which the fire-arms were seized with
the petitioner and therefore, the prosecution has failed to prove the
charges against the petitioner beyond reasonable doubt.
38. This Court finds that the aforesaid aspects of the matter has not
been properly considered by the courts and accordingly, the impugned
judgements call for interference to prevent the miscarriage of justice.
39. As a cumulative effect of the aforesaid findings, this Court is of
the considered view that the learned trial court and the learned appellate
court have failed to consider the aforesaid aspects of the case and the
impugned judgements suffer from serious illegality and cannot be
sustained in the eyes of law. Therefore, this Court is inclined to exercise
its powers under revisional jurisdiction to rectify the error committed
by the learned courts. Accordingly, the impugned judgments passed by
the learned appellate court and the learned trial court are set aside.
40. The bailors of the petitioner are discharged from the liability of
their bail bonds.
41. Accordingly, this Criminal Revision is allowed.
42. The office is directed to send back the Trial Court Records of the
case to the court concerned.
43. Let a copy of this judgment be communicated to the court
concerned through "FAX / mail".
(Anubha Rawat Choudhary, J.)
Rakesh/Binit
