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PATNA HIGH COURT
Aditya Kumar Trivedi, J.
Mohd. Azib Alam and Anr. —Appellants
versus
State of Bihar —Respondent
Criminal Appeal (SJ) No.393 of 2015
Decided on 22.6.2017
Counsel for the Parties:
For the Appellant: Mr. Ranbir Singh, Amicus Curiae
For the Respondent: Mr. Abhay Kumar, APP
IMPORTANT POINT
Number of witnesses are not at all relevant to substantiate facts in issue.
Headnote:(i) Indian Penal Code, 1860—Sections 353, 307 and 414—Arms Act, 1959—Sections 25(1b) 26(i)/35 and 27—Attempt to murder—Recovery of fire arms—Conviction and sentence—On account of failure having at end of prosecution, no seizure list has been brought up on record—Consequent thereupon, seizure list is not an exhibit of record—In likewise manner, seized article also not been produced in court—That has got relevance on account of seizure list witnesses becoming hostile—Oral evidence of informant has got no additional support by way of oral as well as documentary evidence—That being so, there happens to be severe dent in prosecution case on that very score—Prosecution case suffers from severe infirmity whereupon could not be accepted and appreciated—Judgment of conviction and sentence recorded by trial court set aside. (Paras 12 and 13)
(ii) Indian Evidence Act, 1872—Section 134—Number of witnesses—Number of witnesses are not at all relevant to substantiate facts in issue—It is quality not the quantity that matters—If evidence of a single witness inspires confidence, then in that event, conviction could be recorded against accused. (Para 10)
Result: Appeal allowed.
JUDGMENT (ORAL)
Aditya Kumar Trivedi, J.—Because of the fact learned counsel for the appellants failed to turn up on call, on account thereof, Sri Ranbir Singh, has been requested to assist the Court as an Amicus Curiae.
2. Heard learned Amicus Curiae as well as learned APP.
3. Appellants, Md. Azib Alam and Pramod Chhatri have been found guilty for an offence punishable under Sections 353, 307, 414 IPC, 25(1-b) 26(i)/35 and 27 of the Arms Act and each one has been directed to undergo RI for 2 years as well as to pay fine of Rs.2000/- in default thereof, to undergo imprisonment of 2 months for an offence punishable under Sections 353 IPC and 414 IPC, RI for 7 years as well as fine of Rs. 5,000/- and in default thereof, to undergo imprisonment of 1 year under Section 307 IPC, RI for 3 years as well as to pay fine of Rs. 2,000/- and in default thereof, to undergo imprisonment of 6 months under Section 25(1-b), 26(i)/35 and 27 of the Arms Act, respectively vide judgment of conviction dated 15.05.2016 and order of sentence dated 16.05.2016 passed by Adhoc Additional Sessions Judge-IVth, Araria in Sessions Trial No. 271/2012, /Tr. No. 36/2012(CIS No. 2106/2013.
4. The prosecution case as is evident from self statement (Ext-2/1) of O/C, Forbesganj, namely, Subodh Kumar Thakur (PW 8) having recorded on 30.08.2011 at about 1630 hours at Bishanpur Nahar disclosing therein that on the same day at about 3:25 PM, while he along with Dy. S.P. Forbesganj were discussing over the law and order situation on the eve of Eid, one of the constable of Tiger Mobile (DAP-162), Manoj Kumar Singh received call on his mobile to the effect that two miscreants, after looting Nahid Fuel Centre, Line Chowk, NH-57 are fleeing over a motorcycle having no registration number towards Forbesganj over which, Sanha was entered and then, under the leadership of Dy. S.P., Vikash Kumar, Tiger Mobile, Manoj Kumar Singh, Pankaj Kumar Singh, Bodyguard of Dy. S.P., Driver, Sachit Kumar, Braj Bihari Narayan Singh, Shankar Prasad Yadav proceeded from P.S. After parking the vehicle near Dholbajja, they began to wait. During course thereof, they found one motorcycle having been occupied by two persons coming from Simraha side. Just after seeing the police, the miscreants diverted their direction and went over Kasba Bandh who were chased and to facilitate apprehension raised siren. Thereafter, the aforesaid two miscreants left the motorcycle and ran towards Bhurkatta Jungle. Anyhow, the miscreants were cordoned. Dy. S.P. disclosed regarding their status and further, warned that they should surrender who instead of obeying the order of the Dy. S.P. started firing having miraculous escape of constable Manoj Kumar Singh. The miscreants repeatedly fired over Pankaj Kumar also. As the situation became alarming on account of illegal activity being taken up by the miscreants, the Dy. S.P. ordered to fire five rounds in order defend/protect their life as well as arms and accordingly, firing was made. On account thereof, miscreants tried to escape therefrom who were apprehended with the active assistance of the local inhabitants. In presence of two independent witnesses, namely, PW-2, Bishundeo Mandal and PW-1, Arbind Mandal, both the accused were searched. From the possession of one accused who disclosed his name as Md. Azib Alam, one country made loaded pistol, cash appertaining to Rs. 25,105/-, two mobile sets, one belonging to G-5 make and another Nokia, I-Card, ATM cards, belonging to one Badrul Haque while from the possession of Pramod Chhatri, cash appertaining to Rs. 15,112/-, Debit Card of Axis Bank, knife were recovered. The informant also seized motor-cycle bearing Engine No. OF1BB 1050645.
5. On the basis of aforesaid self statement, Forbesganj PS Case No. 412/2011 was registered under Section 353, 307, 414 IPC as well as under section 25(1-b) 26(i)/35 and 27 of the Arms Act, whereupon investigation commenced and concluded by way of submission of charge-sheet whereupon tri
