Jharkhand High Court
Upendra Bishwarkama Son Of Sri ... vs The State Of Jharkhand on 25 February, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1116 of 2006
-----
(Against the judgment of conviction dated 31.07.2006 and order of sentence
dated 01.08.2006 passed in Session Trial No.231/1997, G.R. Case No. 2919 of
1996 arising out of Topchanchi P.S. Case No.133 of 1996 by the Court of
Learned Additional Sessions Judge, F.T.C.-III, Dhanbad, Jharkhand)
Upendra Bishwarkama son of Sri Yadunandan Bishwakarma resident of Khesmi
Gomoh, P.O. Gomoh, P.S. Topchanchi, District Dhanbad
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
-------
CORAM : HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Ashok Kumar Sinha, Advocate
For the State : Mr. Manoj Kumar Mishra, APP
JUDGMENT
25.02.2025 This appeal is directed against the judgment of conviction dated
31.07.2006 and order of sentence dated 01.08.2006 passed in Session
Trial No.231/1997, G.R. Case No. 2919 of 1996 arising out of
Topchanchi P.S. Case No.133 of 1996 by the Court of Learned
Additional Sessions Judge, F.T.C.-III, Dhanbad, Jharkhand whereby and
where under the appellant has been convicted under section 25(1) and
26/27 of Arms Act and have been sentenced to undergo R.I. for seven
years and fine of Rs. 5000/- and in default one-year S.I. under Section
25(1) of the Arms Act and R.I. for seven years and fine of Rs. 5000/- and
in default one-year S.I. under Section 26 of the Arms Act and R.I. for
seven years and fine of Rs. 5000/- and in default of one-year S.I. under
Section 27 of the Arms Act. All the sentences were directed to be run
concurrently.
2. The prosecution case, in short, is that on 25.9.1996 one Sri Padma
Nath Upadhyay, S.I. of Topchanchi police station lodged information to
the o/C.Topchanchi P.S. that on that day at 9.30 A.M. secret information
was received that Upendra Biswakarma sells country made pistol after
making it to criminals. It was also informed that half made country made
pistol parts and machine may be recovered from his house. The said
information was recorded in Sanha No. 604 dated 25.9.96 at Topchanchi
P.S. and thereafter he alongwith other police force went to the village
Kheshmi and surrounded the house of accused Upendra Biswakarma
which is made of bricks and country made Tali from all sides and in the
presence of two independent villagers searched the house of said
Upendra Biswakarma and found two iron buts of country made pistol
length 12", two iron buts of country made pistol length 14 ½ ", old barrel
of country made pistol length 12", two new barrels of country made
pistol 17 ½ ", two firing pins of country made pistol with hammer two
triggers of country made pistol, three springs of country made pistol,
locking pin of country made pistol and one grinder machine, for which
the accused Upendra Biswakarma did not produce any papers regarding
its possession. It is further alleged that one Jai Kumar Mishra paid him
Rs. 100/- and told to give him a country made pistol who was
demanding the same for last two or three days.
3. On the basis of said information Topchanchi P.S. Case No. 133/96
U/S 25(I) (ΑA)/26/35 Arms Act was registered and a formal F.I.R. was
drawn up against the accused persons and investigation started.
Thereafter police submitted charge sheet under the aforesaid sections
against the accused persons on the basis of which cognizance was taken
and subsequently case was committed to the court of Sessions for trial
and disposal. Learned 1st Assistant Sessions Judge at Dhanbad had
framed charge on 01.05.1998 against this appellant under section 25(1),
26 & 27 of Arms Act. After framing the charge, the statement of
witnesses was recorded and subsequently after closing the prosecution
evidence, statement of the accused persons under section 313 of Cr.P.C.
was recoded in which accused pleaded not guilty.
4. The learned trial court after conducting the full-fledged trial
passed the impugned judgment of conviction and order of sentence,
which is under challenge in this appeal.
5. Heard learned defence Counsel for the appellant and the learned
A.P.P. for the State.
Arguments advanced on behalf of the Appellant:
6. Learned counsel appearing on behalf of the appellant has
submitted that the learned trial Court has committed gross error of law as
well as facts in appreciation of the evidence and passing the impugned
2 Cr. Appeal (SJ) No. 1116 of 2006
judgment of conviction and order of sentence in view of the fact that the
prosecution could not prove as to whether the articles seized during the
course of the search and seizure from the house of the appellant was
used in the manufacture of country made pistols or not.
7. It has been argued on behalf of the appellant that neither the I.O.
in this case has been examined nor the articles alleged to have been
recovered from the house of the appellant was sent to any
technical/ballistic experts to ascertain as to whether these articles said to
have been recovered from the house of the appellant was used in the
manufacture of country made pistols.
8. Further, it has also been argued that the so-called recovered
materials as mentioned in the seizure list exhibit-1 were never produced
before the Court and seized articles were not marked as Exhibit Material
and since there is no substantive evidence for any recovery and
ascertaining as to whether the seized articles were used in manufacture
of country made pistols or not, the production of seized articles as a
material exhibit during the course of the trial becomes necessary in order
to substantiate the charges leveled against the accused appellant.
9. Further it has also been pointed out that none of the seizure list
witnesses has been examined and only the informant in this case has
been examined as P.W.-2, who had proved the seizure list although he
stated in his deposition that he cannot say as to which kind of tools and
machine were used in preparing the country made pistol as evident from
the para 8 of the examination of P.W.-2 and as such learned trial court
has failed to appreciate such kind of admission by the prosecution
witness, P.W.-2 and passed the impugned judgment of conviction and
order of sentence without application of judicial mind.
10. It has also been argued that there were two independent witnesses
of the seizure list but none of them has been examined and no reason has
been assigned for their non-examination which has caused serious
prejudice to the appellant in absence of the examination of the I.O. in
this case. Further it has also been contended that P.W.1 was neither a
seizure list witness nor there was anything on record to show that he was
present at the time of search. It has further been pointed out that in a
sweeping manner, the learned Trial Court has convicted the appellant for
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the offence punishable under Sections 25(1), 26 and 27 of the Arms Act
without discussing and ascertaining the guilt of the accused appellant
either under Section 25(1)(a)(b)(c)(d) or 26(1)(2)(3) or 27(1)(2)(23) of
the Arms Act and as such the judgment of conviction is bad in law
because the specific charge against the appellant is not proved. Further,
the learned trial Court has committed gross error of facts as well as law
and relying upon simply sanction order, the learned Trial Court held that
the charges leveled against the accused have been proved in absence of
any examination of technical or scientific expert with respect to the tools
and machines alleged to have been recovered from the possession of
appellant are used in manufacture of country made pistol and as such the
judgment of conviction and order of sentence is bad in law and fit to be
set aside.
Arguments advanced on behalf of the State.
11. On the other hand, the learned APP appearing on behalf of the
State has opposed the contentions raised on behalf of the Appellant and
stated that the learned Trial Court has rightly appreciated the evidences
adduced on behalf of the prosecution by taking into consideration the
depositions of the oral witnesses P.W.-1 to P.W.5 and the documentary
evidences vide Exhibit-1 (Search-cum-seizure list), exhibit-2 (written
report), exhibit-3(signature of DC on sanction order dated 01.11.1996),
Exhibit-4 (Formal FIR) and therefore there is no legal point to interfere
in the impugned judgment of conviction and order of sentence and the
same is fit to be dismissed being devoid of merit.
Appraisal & Findings
12. Having heard the parties, perused the record of the case including
the impugned judgment, depositions of all the witnesses and other
materials available on record.
13. In order to fasten the guilt of the appellant, prosecution has been
able to examine altogether 5 witnesses who are as under:
1. P.W.1- Abhay Kumar Kujur
2. P.W.2- Padam Nath Upadhyay
3. P.W.3- Lalu Gopal Tiwari
4. P.W.4- Harendra Dube
4 Cr. Appeal (SJ) No. 1116 of 2006
5. P.W.5- Bhuwneshwar Singh
Apart from the oral evidences, the prosecution has proved some
documentary evidences also which are as under: -
Exhibit-1 (Search-cum-seizure list)
Exhibit-2 (written report)
Exhibit-3(signature of Mahabir Prasad, DC, Dhanbad on sanction
order dated 01.11.1996)
Exhibit-4 Formal FIR
Apart from prosecution witnesses, defence has also adduced one
witness Ashok Kumar Soni as DW-1 & one Ext. i.e. Exhibit -A
Forwarding on written report.
14. P.W.-1 Abhay Kumar Kujur is the S.I. and he is said to be one of
the members of the raiding party. He has stated in his examination-in-
chief that a search was conducted in the house of the appellant and during
the course of the search, barrel of the pistol, spring, trigger and other
equipments from the house of the accused appellant were seized and a
seizure list was prepared. This witness was neither the writer of the
seizure list nor he was seizure list witness but at his instance, the seizure
list has been marked as Exhibit-1. It has categorically been stated in para
8 that he did not have any document by which it transpired that he was
one of the members of the raiding party. In para 10, this witness
categorically stated that the accused appellant was a black smith and in
para 11 he categorically stated in unequivocal words that no prepared
country made pistol was ever seized from the house of the appellant rather
he has stated that the alleged seized articles have never been tested by
them as to whether they can be used for manufacture the country made
pistol or not.
15. From the version of this witness, it is found that the appellant was a
black smith and his defence that seized articles were used in the
preparation of the iron domestic tools including grinding machine, kulhari
(axe) etc. in view of the admitted fact by this witness that he had not
tested as to whether a pistol can be manufactured from the seized articles
or not, it is well founded that charges levelled against appellant are not
substantiated at all.
5 Cr. Appeal (SJ) No. 1116 of 2006
16. Another prosecution witness, Padam Nath Upadhyay P.W.-2 is
the informant of the presence case and he has proved the seizure list
which was already marked at the instance of P.W.-1 as exhibit-1. He has
also proved the formal F.I.R. which was in his handwriting and signature
which has been marked as Exhibit-2. This witness is the informant of the
present case and he stated that the seized articles alleged to have been
recovered from the house of the appellant were never recovered nor
sealed and as such the veracity and truthfulness of the seizure list articles
become highly doubtful in absence of the examination of the I.O. and in
absence of the material exhibits ever brought on record by any of the
police officials during the course of the trial.
17. Further, this witness has stated in para 8 that he has no knowledge
as to what kinds of machines and tools are used in manufacture of pistol
and as such the alleged articles which are said to have been recovered
from the house of the appellant who is a black smith and using these
articles for the manufacture of domestic iron articles like Hasua, Chhura
Khurpi, Chheni, grinding machine etc. cannot be ruled out in view of the
fact that these seized articles from the house of the appellant have never
been sent to any technical or scientific experts or ballistic experts nor
produced before this Court as material exhibit before the Learned Trial
Court during the course of the trial and this witness being the informant
had no knowledge about the tools and machines alleged to have been
seized from the house of the appellant were actually used in the
manufacture of country made pistols or not.
18. Thus, from the version of this witness, it appears that prosecution
has miserably failed to establish the fact that the parts of machines and
tools alleged to have been recovered from the house of the appellant are
used in the manufacture of country made pistol or not because neither
informant was having any knowledge about the iron parts used in the
manufacture of country made pistol nor the seized articles have ever been
sent to the ballistic or scientific experts to ascertain as to whether these
parts can be used in the manufacture of country made pistols and as such
the prosecution could not prove at all about the alleged charges leveled
against the accused appellant.
19. Further, it appears to be highly ridiculous that in absence of any
6 Cr. Appeal (SJ) No. 1116 of 2006
official from the office of the DC who is said to have issued the sanction
letter for the sanction of the prosecution, one head clerk has been
examined as P.W.3-Lalu Gopal Tiwary who has proved the sanction
letter as exhibit-3. From the perusal of the exhibit-3 it does not transpire
as to under what circumstances the sanction for the prosecution has been
issued in absence of any scientific/ballistic expert report with respect to
tools and machines alleged to have been recovered from the house of the
appellant for the manufacture of country made pistol and thus the sanction
letter which has been brought on record at the instance of the head clerk
of the D.C. office also is meaningless under the facts and circumstances of
this present case and the learned Trial Court in a very absurd manner has
relied upon this Sanction Letter i.e. Exhibit-3.
20. P.W.-4 Harendra Dube who is examined on behalf of the
prosecution also does not support the prosecution when he stated in cross
examination vide Para 5 that the alleged machine and tools recovered
from the house of the appellant for the manufacture of the country made
pistol were chheni iron (पिस्तौल का औजार बनाने के सामान में ) and as such
the defence of the appellant that he was a black smith and involved in the
manufacture of domestic iron tools like Chheni, Iron, Kulhari etc cannot
be ruled out when admittedly no pistol was recovered nor any ballistic
Expert report has been proved to determine that the tools alleged to have
been recovered from the house of appellant were parts of preparing
country made pistols in an unlawful manner.
21. Further this witness has also stated that no seized articles were
present in the court at the time of the cross examination of these witnesses
and thus the appellant has been debarred from his valuable right to draw
the attention of this witness as to whether these articles were recovered
from the house of the appellant or not. Since the I.O. in this case has not
been examined and material exhibit have not produced before this Court,
prosecution has failed to substantiate the truthfulness of the seized articles
from the house of the appellant.
22. Another absurd witness examined on behalf of the prosecution is
P.W.-5 Bhuwneshwar Singh who is advocate clerk and he has proved
7 Cr. Appeal (SJ) No. 1116 of 2006
formal FIR which has been marked as Exhibit-4. This witness being the
advocate clerk did not know either about the contents of the FIR nor the
charges/allegations leveled against the appellant and as such his
examination is meaningless.
23. On the other hand, the defence has also adduced evidence by
examining D.W.-1 Ashok Kumar Soni who is gold smith and he was
acquainted with the appellant for 15-20 years and he categorically stated
the he is involved in the manufacture of domestic iron materials including
grinding machine etc. The defence has examined this witness in order to
disbelieve the version of the prosecution that the alleged iron materials
recovered from the house of the appellant was not meant for
manufacturing country made pistol rather it was meant for manufacturing
and preparation of the domestic iron articles inasmuch as prosecution has
failed to establish from the deposition of aforesaid witnesses that the
articles recovered from the house of appellant were meant for the
manufacture of country made pistol.
24. Recapitulating the testimonies of the witnesses examined on behalf
of the parties and also the documentary evidences available on record, it is
well founded that the prosecution has miserably failed to establish that the
articles which were said to have been recovered from the house of the
appellant were used in the manufacture of country made pistol. Neither
the seized articles as mentioned in the exhibit-1 have ever been sent to the
scientific or technical or ballistic experts lab to ascertain as to whether
these articles were used in the manufacturing of country made pistol or
not. Further, the I.O. in this case has not been examined nor any
independent witnesses or seizure list witnesses have ever been examined
and therefore the seizure list is also not proved in the eyes of law.
Although, Informant has been examined who has proved the seizure list.
Further it has categorically come into the evidence of P.W. 2 (one of the
members of the raiding party) that he did not know as to whether the
materials/articles of iron which are said to have been seized from the
house of the appellant are used in the manufacture of country made pistol
or not and as such the prosecution could not prove that these articles were
used in the manufacture of country made pistol beyond all reasonable
doubt. From the perusal of the exhibit -3 it is not manifest that before the
8 Cr. Appeal (SJ) No. 1116 of 2006
sanction order for the charges leveled against the appellant it has been
ascertained as to whether the articles which are said to have seized from
the house of the appellant are indeed used for the manufacture of country
made pistol in order to prosecute the appellant for the offence punishable
under Section 25(1), 26 and 27 of the Arms Act.
25. Further it is also admitted case of the prosecution that the appellant
was a black smith. Therefore, the defence of the appellant that being a
black smith he had kept all these things for the use and preparing iron
materials of domestic use for making Hasua, Chheni, Tangi, grinding
machine etc. which cannot be ruled out.
26. In view of the aforesaid categorical findings of this Court as
discussed above, it is found that the learned Trial Court did not apply its
judicial mind properly in appreciation of the evidences adduced on behalf
of the prosecution to fasten the guilt of the accused appellant under
Section 25(1), 26 and 27 of the Arms Act and therefore the judgment of
conviction dated 31.07.2006 and order of sentence dated 01.08.2006
passed in Session Trial No.231/1997, G.R. Case No. 2919 of 1996 by the
Court of Learned Additional Sessions Judge, F.T.C.-III, Dhanbad,
Jharkhand against the appellant are not tenable in the eyes of law and in
consequence thereof, the judgment of conviction dated 31.07.2006 and
order of sentence dated 01.08.2006 passed in Session Trial No.231/1997,
G.R. Case No. 2919 of 1996 by the Court of Learned Additional Sessions
Judge, F.T.C.-III, Dhanbad, Jharkhand against the appellant is set aside.
27. The appellant, namely, Upendra Bishwarkama is acquitted from the
charges leveled against him. Since the appellant is on bail, he is
discharged from the liabilities of bail bond.
28. Resultantly, the instant Appeal is allowed.
29. Let the Lower Court Records along with the copy of the judgment
be transmitted to the learned Court below.
(Navneet Kumar, J.)
Basant B./S. Das
9 Cr. Appeal (SJ) No. 1116 of 2006
