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2017 Supreme(Pat) 1449
IN THE HIGH COURT OF JUDICATURE AT PATNA
Sanjay Priya, J.
Ranjan Kumar @ Raju, S/o Parmanand Prasad and Ors. – Appellants
Versus
State of Bihar – Respondent
Criminal Appeal (SJ) No.20 of 2007
Decided On : 30-11-2017
For the Appellant :Mr. Vijay Kumar, Mr. Kapil Deo Singh, Advocate
For the Respondent: Mr. Balmukunk Pd. Sinha, APP
The main legal point established is the requirement for independent witnesses in seizure cases and the necessity to prove possession of prohibited firearms beyond reasonable doubt.
Headnote:
Arms Act - Conviction under Section 25(1-A), 26/35 - [25(1-A), 26, 35] - The court discussed the provisions of the Arms Act, including the requirement for independent witnesses in seizure cases and the necessity to prove possession of prohibited firearms. The court also referenced legal precedents to support the appellants' arguments, ultimately leading to their acquittal.
Fact of the Case:
The appellants were convicted under the Arms Act for possession of firearms. The defense argued lack of independent witnesses and failure to prove possession of prohibited firearms. The court found that the prosecution failed to substantiate the charges beyond reasonable doubt.
Finding of the Court:
The court found that the prosecution did not prove the charges beyond reasonable doubt, especially regarding the lack of independent witnesses and failure to establish possession of prohibited firearms.
Issues: The issues revolved around the sufficiency of evidence, the requirement for independent witnesses in seizure cases, and the failure to prove possession of prohibited firearms.
Ratio Decidendi: The court held that the lack of independent witnesses and failure to prove possession of prohibited firearms created doubt over the prosecution's case, leading to the acquittal of the appellants.
Final Decision: The judgment of conviction and sentence was set aside, and all the accused persons (appellants) were acquitted of the charges.
Heard learned counsel for the appellants and the counsel appearing on behalf of the State.
2. This Cr. Appeal has been directed against the judgment of conviction dated 16.12.2006 and order of sentence dated 18.12.2006 passed by the Fast Track Court-III, Jehanabad, in Sessions Trial No. 203 of 2006/68 of 2006, whereby appellants have been convicted for the offence under Section 25(1-A), 26/35 of the Arms Act and sentenced to undergo R.I. for seven years for offence under Section 25(1-A) of Arms Act and to undergo R.I. for five years for the offence under Section 26/35 of Arms Act. Both the sentences shall run concurrently.
3. Counsel for the appellants has submitted that in the instant case no any independent witness has been examined. The seizure list witnesses did not appear to support the seizure list. It has further been submitted that all the witnesses examined, are member of the raiding party. The alleged motorcycle on which the appellants were said to be travelling was never produced during trial.
4. Learned counsel for the appellant has submitted that the Hero Honda motorcycle, which is alleged to be seized, was never produced in the court during trial. It has also been submitted that conviction has been made under Section 25(1-A), 26 and Section 35 of the Arms Act. But no offence under aforesaid Section is made out in this case.
5. Learned APP has submitted that the informant and other members of the raiding party have been examined and they all have supported the case.
6. As per written report of the informant, three person boarding on one motorcycle, were apprehended, and on search one pistol made in China, two magazine and ten round of live cartridges were recovered from possession of appellant no. 2, one country made pistol along with three round of live cartridges were recovered from possession of Gopal Kumar @ Rajesh Kumar (appellant no. 3) and one country made pistol along with four round of live cartridges were recovered from Ranjan Kumar @ Raju (appellant no. 1). The seizure list was prepared and signatures of two independent witnesses were taken. The police after investigation submitted charge-sheet for the offence under Section 25(1-B) A, 26 and 35 of the Arms Act and Section 411 of the IPC.
7. During trial, total eight witnesses have been examined on behalf of the prosecution. The defence of the accused was total denial of the occurrence and false implication in the case. During trial the material exhibits (seized fire arms were produced) have been marked as Ext. A to A/1, Ext. B to B/1, Ext. C to C/6, Ext. D to D/9 and Ext. E.
8. Main argument made on behalf of the appellant is that entire search and seizure as alleged against these appellants, becomes doubtful, since, independent seizure list witnesses never appeared in court to support the seizure, There is no recovery of any prohibited firearms from possession of appellants. Therefore, no offence under Section 25(1-A) of the Arms Act will be made out. Similarly, no offence under Section 26/35 of Arms Act will be made out as none of ingredients of aforesaid Section was found in the case.
9. The counsel for the appellants has relied upon the decision reported in 1996 (1) PLJR, Supreme Court, page 17, (Daulat Ram vs. State of Haryana) in which the Apex Court has held that the accused pleaded that he was already in police custody at the time when “Pistol” was allegedly recovered from accused and no independent witness examined by prosecution for proving seizure and recovery of pistol from possession of accused, the Supreme Court came to a finding that accused had been falsely implicated, directing that accused be released and also directing State Government to pay Rs. 5,000/- as compensation for being kept in custody on foisted charges.”
The counsel for the appellants has also relied upon a decision reported in 1997 (2) PLJR, page 171 (Chandan Sonkar vs. State of Bihar) in which the Hon’ble court has held that “mere possession of firearms is not enough to
