Patna High Court
Sunil Yadav @ Bhopu Yadav vs The State Of Bihar on 30 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.392 of 2019
Arising Out of PS. Case No.-366 Year-2017 Thana- SHIVSAGAR District- Rohtas
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Sunil Yadav @ Bhopu Yadav, S/o Shankar Yadav @ Shankar Singh Yadav
Resident of Village- Alampur, P.S.- Baddi, District- Rohtas
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Bhaskar Shankar, Advocate
For the Respondent/s : Md. Matloob Rab, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 30-01-2024
1. An Order of conviction and Sentence, passed by the
learned Additional Chief Judicial Magistrate-VII, Sasaram, in G.R.
No. 4473 of 2017, convicting the accused/petitioner for
committing offence under Section 25 (1-B)A and 26 of the Arms
Act and sentencing him for rigorous imprisonment of three years
and also to pay fine of Rs. 10,000 in default, simple imprisonment
for three months, was challenged in Criminal Appeal No. 78 of
2018 before the learned Additional Sessions Judge, 3rd Court,
Rohtas, at Sasaram. The Appellate Court affirmed the judgement
and order of conviction and sentence passed by the learned
Additional Chief Judicial Magistrate-VII, Sasaram.
2. Challenging the judgement and order of sentence, the
accused/convict has filed the Instant Revision.
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
3. Prosecution case in brief is that, on 3 rd of December
2017, at about 5.30 pm, one Umakant Dwivedi (informant) along
with Police Force, comprising of Hawaldar Nathu Mahto,
Constables Santosh Kumar and Dewan Resad Khan were on
special patrolling duty and search operation. When the Police party
was returning through Mahua Pokhar village and reached near an
orchard, they noticed that seeing the Police vehicle, one person
started fleeing away. They stopped the Police vehicle and chased
and apprehended the said person. On search, the Police party
recovered a country made pistol and five numbers of live
cartridges from the right pocket of the said apprehended person.
They also recovered five live cartridges of 12 bore from the left
side pocket of the said person. The apprehended person stated his
name as Sunil Yadav. The Police Officer, namely, Umakant
Dwivedi seized the said firearm and live cartridges in presence of
Nathu Mahato and Santosh Kumar, both Police Personnel. After
completion of search and seizure, the Police Officer arrested the
accused and came to the Police Station. Sub-Inspector Umakant
Dwivedi submitted a complaint against the accused. On the basis
of the said complaint, Police registered a case against him and on
completion of investigation submitted charge-sheet against the
accused.
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
4. The learned Additional Chief Judicial Magistrate took
cognizance of offence under Sections 25 (1-B)A, 26 and 35 of the
Arms Act.
5. During trial, the prosecution examined six witnesses.
All the witnesses are Police Personnel. The prosecution also
proved certain documents which were marked as exhibits.
6. It is ascertained on perusal of the record that the
seized firearm was examined by the arms expert and he submitted
a report that the seized arm is a country made pistol but the live
cartridges could not be loaded in the said pistol.
7. The search and seizure witnesses stated on oath that
accused was apprehended in the orchard of one Shankar Singh. It
was an orchard consisting of mango and Berry trees. The witnesses
also stated that after seizure, the firearm and ammunition were
sealed and labeled properly at the spot and it was brought to the
Police Station and kept in Police godown. During trial, the
sanction order for prosecution against the accused was marked as
exhibit 2.
8. It is submitted by the learned Advocate for the
petitioner that all the witnesses are Police Personnel and they are
obviously interested in the outcome of the prosecution case.
Examination of seized pistol by P.W. 1 was also doubtful because
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
P.W. 1 is not a trained firearm expert. It is also pointed out by the
learned Advocate for the petitioner that the prosecution has failed
to establish the place of occurrence because one witness stated that
the accused was apprehended in the orchard of Mango and Berry
trees and another witness stated that he was apprehended inside the
orchard of Mango and Guava trees. This discrepancy ought not to
have been treated lightly by the Trial Court. Learned Advocate for
the petitioner also submits that the prosecution failed to examine
any independent witness in support of the prosecution case.
9. Learned counsel for the prosecution, on the other
hand, submitted that the accused was apprehended at about 09.30
P.M. inside an orchard away from the village. The learned Judge in
the Appellate Court rightly held that the place where the accused
was apprehended was an isolated place and it was not possible to
have independent witness at the time and place of occurrence.
10. Having heard the learned Advocate for the petitioner
and the State of Bihar, this Court records that at the outset the
High Court can admit revision against conviction limited to the
point of sentence only as the revisional jurisdiction is discretionary
as that of the Supreme Court's power under Article 136 of the
Constitution of India. The decision of the Division Bench of this
Court in Rabindra Nath Chaubey and Ors vs. Charai Chamar
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
and Anr. reported in 1984 Cri Lj 1590 may be relied on in this
regard. It is no longer res integra that a Court exercising revisional
jurisdiction cannot examine and scan the evidence on record as
that of a Court of Appeal . A Revisional Court may have the power
to correct any error in the order passed by the learned Magistrate
or the Court inferior to it, but it will be beyond its power and
jurisdiction to reassess the evidence and on such reassessment to
arrive at a finding which is at variance with the finding recorded
by the learned Magistrate as well as the 1st Court of Appeal. An
appraisal of evidence is not permissible in revision. The High
Court while hearing revision does not work as an Appellate Court
and will not re-appreciate the evidence, unless some glaring
feature is pointed out which may show that injustice has been done
by improper appreciation of evidence. The decision of the Hon'ble
Supreme Court in the case of State of Kerala vs. Puttumana Illath
Jathavedan Namboodiri reported in AIR 1999 SC 981, has laid
down the scope of jurisdiction of Revisional Court against an order
of conviction and sentence.
11. The learned Advocate for the petitioner submits that
all the witnesses are Police Personnel and they are interested in the
outcome of the case. Indeed all the five prosecution witnesses who
have been examined in support of search and seizures of a firearm
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
and live cartridges were members of the raiding party. They are all
Police officials.
12. It is held in Anil @ Andya Sadashiv Nandoskar vs.
State of Maharashtra reported in (1996) 2 SCC 589 that there is,
however, no rule of law that the evidence of Police officials has to
be discarded or that it suffers from some inherent infirmity.
Prudence, however, requires that the evidence of Police officials,
who are interested in the outcome of the case needs to be carefully
scrutinized and independently appreciated. The Police officials do
not suffer from any disability to give evidence and the mere fact
that they are Police officials does not by itself give rise to any
doubt about their creditworthiness.
13. In the instant case, on perusal of the impugned
judgements, it is found that there is nothing on record to show that
Police personnel were hostile to the appellant and despite lengthy
cross-examination, their evidence remained unshaken throughout.
These witnesses have deposed in clear terms the details as to how
the accused was apprehended. Their evidence regarding search and
seizure of the weapon and ammunition from the petitioner is
straightforward, consistent and specific. Therefore, there is no
reason to disbelieve the evidence of witnesses on behalf of the
prosecution. The Investigating Officer obtained sanction required
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
under Section 35 of the Arms Act and the Witness No. 1 proved
the said sanction order. Therefore, I do not find any ground for
interference over the impugned order.
14. On the question of sentence, it is submitted by the
learned Advocate for the petitioner that he has in custody for 2
years.
15. Considering the nature of offence, long pendency of
the case as well as incarceration for 2 years, the period of sentence
passed by the Courts below requires to be revisited.
16. I have considered the submission made by the
learned Advocate for the petitioner, It has not been proved that the
petitioner is a seasoned offender. As per record, this is his first
offence. Therefore, I am inclined to take lenient approach with
regard to sentence.
17. The order of sentence for the offence committed
under Section 25(1)(B) A and 26 of the Arms Act against the
petitioner be reduced from 3 years to the period which has already
been undergone by him.
18. The fine amount directed to be paid by the petitioner
and period of simple imprisonment for non-payment of fine shall
remain unchanged.
Patna High Court CR. REV. No.392 of 2019 dt.30-01-2024
19. With the above order, the instant Revision is
disposed of.
(Bibek Chaudhuri, J)
uttam/-
AFR/NAFR
CAV DATE
Uploading Date
Transmission Date
