Non-examination of independent seizure list witnesses is not fatal to the prosecution case if the raiding party members' evidence is consistent and reliable.

ORDER :

1. Heard Mr. Anish Kumar Mishra, the learned counsel appearing for the petitioners.

2. Heard Mr. Shekhar Sinha, the leaned counsel appearing for the Opposite Party-State.

3. It has been pointed out by the learned counsel for the state that one of the petitioners namely, Gulam Ansari, has expired on 12.10.2015 and for that purpose an affidavit dated 07.08.2020 has been filed annexing his death certificate and accordingly a prayer has been made to delete the name of the petitioner no. 3 from the cause title as the present petition so far as he is concerned has abated. This fact is admitted by the learned counsel for the petitioners.

4. Accordingly, the present proceedings, so far as petitioner no. 3 is concerned is abated. Office is directed to delete the name of the petitioner no. 3 from the cause title in red ink as and when the records of this case is received in the office.

5. This criminal revision petition is directed against the judgment dated 28.02.2014 passed by the learned District and Addl. Sessions Judge-II, Godda in Criminal Appeal Nos. 07 of 2013/31 of 2013 whereby and whereunder the Judgment of conviction and the order of sentence passed by the learned trial court was upheld and both the criminal appeals were dismissed, so far as the petitioners are concerned.

6. The criminal appeal was preferred by the petitioners and one Kudrat Ansari against the judgment of conviction and the order of sentence dated 20.12.2012 passed by the learned Civil Judge-II-cum-Judicial Magistrate, 1st Class, Godda in G.R. No. 787 of 2007/T.R. No. 672 of 2012 (arising out of Boarijore P.S. Case No. 92/2007) whereby and whereunder the petitioners and one Kudrat Ansari were held guilty and convicted under Sections 25(1-B)a/26/35 of the Arms Act and were sentenced to undergo Rigorous Imprisonment for two years and a fine of Rs. 1,000/- each for committing the offence under Section 25(1-B)a of the Arms Act and they were further sentenced to undergo Rigorous Imprisonment for three years and a fine of Rs. 1,000/- for committing the offence under Section 26 of the Arms Act and both the sentences were directed to run concurrently and the period undergone by the petitioners during trial of the case was directed to be set off. In default of payment of fine, each petitioner was directed to undergo an additional Simple Imprisonment for one month.

7. Said Kudrat Ansari was acquitted by the learned appellate court as he was not apprehended on the spot and was given the benefits of doubt and appeal of the remaining three persons, who were apprehended on the spot with arms, was dismissed and they filed this revision petition. The petitioner no-3 expired during the pendency of this petition as stated above.

Arguments on behalf of the petitioners

8. Learned counsel appearing for the petitioners submitted that although as per the prosecution case, there were two independent witnesses to the seizure, but they were not examined by the prosecution. He submitted that in absence of examination of the two seizure list witnesses, the seizure itself was not proved and as such, the conviction and sentence of the petitioners cannot be sustained and the petitioners are entitled to benefit of doubt.

9. Learned counsel relied upon two judgments passed by this Court, one is order dated 26.04.2010 passed in the case of Manzar Hussain vs. State of Jharkhand, (2010) 3 JLJR 114 (HC) and the other is judgment decided on 20.11.2019 in the case of Ravi Nepali and Another vs. State of Jharkhand, 2019 SCC Online Jhar 1808 passed in Cr. Revision No. 523 of 2013 and submitted that under similar circumstances, the revision petitions have been allowed by this Court.

10. The learned counsel for the petitioners advanced his arguments further and also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Megha Singh vs. State of Haryana, (1996) 11 SCC 709 and also another judgment passed by the Hon’ble Patna High Court in Criminal Appeal (S.J.) No. 20 of 2007 (Ranjan