Jharkhand High Court

Abhay Kumar Singh Chauhan @ Futo Singh vs The State Of Jharkhand on 24 April, 2025

                                                          [2025:JHHC:12247]


                   Cr. Appeal (S.J.) No.854 of 2006
                             ------
 [Against the judgment of conviction and order of sentence dated
 06.06.2006 and 07.06.2006 passed by learned Additional Sessions Judge,
 F.T.C-IV, Deoghar in S.T. No.12(B) of 2001/23 of 2006 arising out of
 Deoghar (Kunda) P.S. Case No.288 of 2000, G.R. Case No.738 of 2000]
                                ------
 Abhay Kumar Singh Chauhan @ Futo Singh, Son of Late Hari
 Prasad Singh resident of village-Karnibad, P.O. & P.S.-Kunda,
 Dist.-Deoghar                           ....   ....    ....       Appellant


                                Versus
 The State of Jharkhand                  ....   ....    ....   Respondent
                                ------

 For the Appellant        : Mr. A.K. Kashyap, Sr. Advocate
                           Mr. Anurag Kashyap, Advocate
 For the State            : Mr. Shiv Shankar Kumar, A.P.P.
                                ------
                              PRESENT
      HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                            JUDGEMENT

------

CAV On 05/02/2025 Pronounced On: 24 / 04 /2025

1. The present appeal is directed against the judgment and order

of conviction and sentence dated 06.06.2006 and 07.06.2006

passed by learned Additional Sessions Judge, F.T.C-IV,

Deoghar in S.T. No.12(B) of 2001/23 of 2006 whereby and

whereunder, the sole appellant has been held guilty for the

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offence under section 25(1-B)(a) and 26 of Arms Act and

sentenced to undergo R.I. of 2 years with fine of Rs.2,000/- for

each of the offences with the default stipulation. Both the

sentences have been directed to run concurrently. The

appellant has been acquitted from the charges under sections

399 and 402 of Indian Penal Code.

FACTUAL MATRIX

2. Factual matrix giving rise to this appeal is that on 09.10.2000 at

about 11:55 PM, while S.I. J.K. Singh, the then Officer-in-

Charge of Kunda Police Station along with S.I. Sawna Kharia,

Hawaldar, Sri Chand Yadav, constable 274 Nagendra Singh,

Constable 269 Sanjeev Ranjan Jha, Constable 104, Bhagrasan

Yadav, constable 46 Bengali Rai, Chaukidar 7/9 Ratan Mohali,

Chaukidar 7/12 Gopal Turi, Chaukidar 5/4 Fochan Mirdha,

Chaukidar 4/6, Ganesh Mirdha were on patrolling duty, a

secret information was received by S.I. J.K. Singh that some

miscreants had assembled near Naulakha Mandir situated just

adjacent to Manijore Pulia for committing dacoity. The

informant along with other police constables and chaukidars

went near the place of occurrence then the miscreants started

fleeing away after seeing the police party. It is alleged that

upon chase, out of six miscreants, three miscreants were

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apprehended on the spot and all the apprehended witnesses

were searched in presence of two independent witnesses,

namely, Raj Kumar Gupta(P.W.6) and Prabhu Nath Giri

(P.W.7). It is alleged that from the possession of the appellant

Abhay Kumar Singh Chauhan, one country made pistol was

found concealed inside his pant loaded with live cartridges of

.315 bore. It is further alleged that from the right side of his full

pant two live cartridges of .315 bore were also recovered.

Similarly, the country made pistol was recovered from

Narayan Yadav @ Kakla and Prashant Sarkar @ Raja Sarkar,

and live cartridges were also recovered, the seizure list was

prepared at spot in the presence of independent witnesses. It is

alleged that one motorcycle was recovered and prove bearing

Chasis No. DFFBFM39759, Engine No.DFMBFM31090. No

registration paper of the alleged motorcycle was recovered. It

is also alleged that one bagpiper wine and two old glasses and

half burnt pieces of cigarettes were also recovered from the

place of occurrence. The apprehended accused persons

disclosed their name and their associates, who were present at

the time of raid and the apprehended accused persons

confessed that they were making plan to commit dacoity.

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On the basis of above information, the FIR being

Deoghar (Kunda) P.S. Case No.288 of 2000 was registered for

the offence under sections 399 and 402 of IPC and sections

25(1-B)(a) and 26 and 35 of Arms Act. After completion of

investigation, charge-sheet was submitted against the accused.

The case was committed to the court of Sessions where S.T.

Nos.12(B) of 2001/23 of 2006 was registered. Three accused

persons were charge-sheeted in this case under sections 399

and 402 of IPC ad 25(1-B)(a), 26 and 35 of Arms Act, showing

investigation pending against three accused persons i.e. co-

accused, namely, Sanjay Kumar Singh and two unknown

persons. Before pronouncement of judgment, the present

appellant and other co-accused Prashant Kumar were declared

absconder, therefore, the judgment against co-accused,

namely, Narayan Yadav @ Kapla has been passed prior to this

impugned judgment. Later on, the present appellant was

apprehended and faced trial. The appellant has denied the

charge levelled against him and claimed to be tried. After

conclusion of trial, the impugned judgment of conviction and

order of sentence has been passed, which has been assailed in

this appeal.

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3. Learned senior counsel for the appellant assailing the

impugned judgment and order has vehemently argued that

the recovery of country made pistol along with live cartridges

is absolutely false and fabricated story. Learned trial court

after appreciating the prosecution evidence has disbelieved the

prosecution story in part as regards offence under section 399

and 402 of IPC is concerned, the appellant was acquitted

thereunder, in absence of any cogent and reliable evidence. It

is further submitted that learned trial court has failed to

consider that none of independent seizure list witnesses have

proved any recovery of any firearms from the possession of

present appellant, there is no materials on record to show that

the said country made pistol and cartridges were sent for

ballistic examination in order to ascertain that it was functional

or not and unless and until it is proved that firearm was in

working condition, no conviction can be held for the offence

under section 25(1-B)(a) Arms Act. It is further submitted that

the learned trial court has recorded no findings about the

applicability of section 26 of Arms Act in the present case. The

ingredients of which is absolutely absent. The alleged search

and seizure from the person of the appellant cannot be

categorized as concealment of firearm.

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Therefore, conviction and sentence of the appellant in

absence of any evidence regarding the working condition of

the alleged pistol is absolutely illegal and the appellant

deserve to be acquitted from the charge under sections 25(1-

B)(a) and 26 of Arms Act, therefore, the impugned judgment

and order of conviction and sentence is fit to be set aside and

this appeal may be allowed.

4. On the other hand, learned Additional Public Prosecutor

appearing for the State defending the impugned judgment of

conviction and order of sentence of the appellant has

submitted that there is no illegality or infirmity in the

impugned judgment of conviction and order of sentence of the

appellant. There is no substance in the points of argument

raised on behalf of the appellant and no merits in this appeal,

which is fit to be dismissed.

5. I have gone through the impugned judgment and order in the

light of rival submissions of the parties and perused the record

of the case.

6. It appears that altogether 11 witnesses have been examined

and the prosecution has relied upon the following

documentary evidences:-

Material Ext.1- Country made pistol

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Material Ext.2 to Ext.2/VI- Goli (Cartridges)

Material Ext.3- Empty(vacant) bottles of wine

Material Ext.4- 2 Cell Torches (Everyday)

Material Ext.5 to Ext.5/IV- Glasses (शीशा)

Material Ext. 6 to 6/II- half burnt pieces of cigarettes

Ext. 7- Signature of Rajkumar Gupta on seizure list.

Ext.7/1- Signature of Rajkumar Gupta on seizure list

Ext.7/2- Signature of Prabhunath Giri on seizure list

Ext.7/3- Signature of Prabhunath Giri on seizure list

Ext.7/4- Signature of J.K. Singh on seizure list

Ext.7/5- Signature of J.K. Singh on seizure list

Ext.7/6- Signature of J.K. Singh on fardbayan.

Ext.8- Fardbayan

Ext.9- Sanction report.

Ext.10-Forwarding of FIR to O/C Deoghar.

Ext.11- Institution O/C Kunda P.S.

Ext.12-Petition by Kunda P.S. for examination of

country made pistol and live cartridges.

Ext.13-Report of sergeant major

Ext.14- Seizure list.

Ext.14/1- Seizure list.

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7. Out of total 11 witnesses, P.W. 6, Raj Kumar Gupta and

P.W.7, Prabhunath Giri, who happens to be seizure list

witnesses, have been declared hostile by the prosecution and

they have simply admitted their signature on the seizure lists.

P.W.9-Paltan Rawani and P.W.-10 Dilip Prasad Singh

are formal witnesses, who have proved the sanction order for

prosecution marked as Ext.9 and the fardbayan, which is

marked as Ext.10, the endorsement of fardbayan marked as

Ext.11, the forwarding letter for examination of seizure pistol

marked as Ext.12 sergeant major with regard to the

examination of the arms recoveredand the report of which is

marked as Ext.13.

P.W.11-Ramesh Kumar Yadav is a formal witness and

he has proved the seizure list in the hand writing of S.I. Sawan

Khariya marked as Ext.14 and 14/I.

The important witnesses of the facts are P.W.1-

Hawaldar, Sri Chan Yadav, P.W.2, Constable Bhagrasan

Yadav, P.W.3 Constable Sanjeev Ranjan Jha, P.W.-4,

Constable Bengali Rai and P.W.5 Constable Nagendra Singh

and they were member of raiding party and police personnels,

who have corroborated the contents of the FIR and specifically

stated that the country made pistol and live cartridges were

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recovered from the possession of the present appellant, Abhay

Kumar Singh Chauhan and the same has been seized in

presence of independent witnesses, P.W.6 and P.W.7 and the

seizure list was prepared.

P.W.8, Janardan Kumar Singh is the informant of this

case, who has proved the contents of the FIR and stated that he

received confidential information about assemblance of some

miscreants near Dangal for committing dacoity, then he along

with other police personnels, namely, S.I. Sawna Kharia,

Hawaldar, Sri Chand Yadav (P.W.1), constable 274 Nagendra

Singh(P.W.5), Constable 269 Sanjeev Ranjan Jha(P.W.3),

Constable 104, Bhagrasan Yadav(P.W.2), constable 46 Bengali

Rai(P.W.4), Chaukidar 7/9 Ratan Mohali, Chaukidar 7/12

Gopal Turi, Chaukidar 5/4 Fochan Mirdha, Chaukidar 4/6,

Ganesh Mirdha including two other independent witnesses

reached at the place of occurrence but seeing the raiding party,

the miscreants started fleeing away. Upon chase, three

miscreants had been apprehended including the present

appellant, however, three miscreants succeeded in fleeing

away. On enquiry, the apprehended accused persons disclosed

their name as Abhay Kumar Singh Chauhan (appellant),

Narayan Yadav @ Kakla and Prashant Sarkar @ Raja Sarkar.

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Upon search in presence of independent witnesses, one

country made pistol has been recovered from the waist of the

accused, Abhay Kumar Singh Chauhan along with live

cartridges and also two live cartridges from the right side of

pant from this accused. The appellant did not produce any

license for possession of arms and ammunition. From the place

of occurrence, 5 empty glasses, 2 empty bottles of bagpiper

wine and other incriminating articles were also recovered. The

seizure list was prepared and this witness has proved his

signature on the seizure list, which were marked as Ext.7/4,

7/5 and 7/6. He has identified the accused Abhay Kumar

Singh Chauhan in the court. The articles, which have been

recovered from the possession of the accused/appellant was

not sealed due to the lack of sealed material and the same was

wrapped in different clothes.

8. It further transpires that the Investigating Officer of this case

has not been examined and the Sergeant Major, who is alleged

to have conducted the examination of working condition of the

firearms has also not been examined by the prosecution.

9. From the aforesaid discussions of oral as well as documentary

evidences led by the prosecution, it is crystal clear that the

appellant has been alleged to be apprehended on the spot with

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country made pistol and live cartridges but the independent

seizure list witnesses have not corroborated the factum of any

recovery of firearm from the possession of present appellant.

The more surprising fact is that the working condition of

firearm and the cartridges has not been proved by the

prosecution through any cogent evidence in this regard. No

report from ballistic expert or forensic science laboratory has

been received in this case and there is no other reliable

evidence to prove that the said gun and cartridges were in

working condition. Although, it is alleged by the witnesses

that the said cartridges and pistol were sent to Sergeant Major

for examination but the Sergeant Major has not been examined

to prove his report. The Investigating Officer of this case has

also not been examined which caused prejudice to the defence

because this is the only I.O., who can explain on the point as to

why the pistol and cartridges have not been sent for

examination by expert.

10. The Hon'ble Apex Court in the case of Buta Singh Vs. State of

Punjab reported in (1997) SCC (Cri) 1217 has observed in para

4 as under:-

"4. We need not detain ourselves to consider the statements of PW 1 and PW 2, the recovery witnesses, as we find that the

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prosecution case suffers from a serious infirmity in this case. The objects allegedly seized from the appellant were not sent for any expert opinion either to the ballistic expert or to any armourer. There is no evidence on the record to show that the objects recovered from the appellant satisfied the definition of "arm" and "ammunition" or "firearm" as contained in the Arms Act. In the absence of any such evidence, the conviction of the appellant cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside and he is hereby acquitted."

11. In view of the above discussions and reason, the conviction

and sentence of the appellant for the offence under section

25(1-B)(a) of Arms Act is not sustainable at all. So far, the

conviction under section 26 of Arms Act is concerned, the

provision is extracted herein under:-

26. Secret contraventions.

(1) Whoever does any act in contravention of any of the provisions of section 3, 4, 10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.

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(2) Whoever does any act in contravention of any of the provisions of section 5, 6, 7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and also with fine.

(3) Whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine.] The learned trial court has randomly convicted the

appellant under section 26 of Arms Act without mentioning

his guilt either under section 26(1), 26(2) or 26(3) specifically.

As section 26(1) prescribe punishment for contravention of

provisions of section 3, 4, 10 and 12 and section 26(2)

prescribed punishment for contravention of provisions of

sections 5, 6, 7 and 11 and section 26(3) prescribe punishment

for contravention section 22. Thus the conviction of the

appellant under section 26 of Arms Act is not valid.

In the instant case, there is alleged recovery of firearm

from the pocket of wearing clothes of the appellant, no any

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