Allowed

Kamaldeo Singh And Anr. v. State of Jharkhand

Jharkhand HC6 Jul 2020Cr.A(SJ)/288/2010

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed an appeal against conviction for possession of arms and explosives, setting aside the lower court's judgment due to reasonable doubts arising from the non-examination of material seizure witnesses and contradictions in the prosecution evidence.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants are discharged from liability of bail bonds.

Kamaldeo Singh And Anr. Vs State of Jharkhand — Narcotics (NDPS) | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 288 of 2010

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(Against the judgment of conviction dated 08^th March, 2010 and order of sentence dated 11^th March 2010 passed by the learned Additional Sessions Judge, FTC-III, Chatra in Sessions Trial No. 84 of 2003)

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1. Kamaldeo Singh, son of Late Parmeshwar Singh

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2. Chander Singh, son of Late Sarhuli Singh

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Both appellant Nos. 1 & 2 residents of Village-Sahour (Kendua), P.O. & P.S.-Rajpur, District- Chatra.

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…… …..... Appellants

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-Versus-

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The State of Jharkhand ...... ..... Respondent Heard through Video Conferencing

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. Shailesh Kumar Singh, Advocate For the State : Mr. Sanjay Kumar Srivastava, A.P.P. ------

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By Court:

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Heard learned counsel for the appellants and learned counsel for the state.

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2. This appeal is preferred against the judgment of conviction and order of sentence dated 08.03.2010 and 11.03.2010 respectively, passed by the learned Additional Sessions Judge, Fast Track CourtIII, Chatra in Sessions Trial No. 84 of 2003 arising out of Chatra, Sadar Police Station Case No.10/03 dated 28.01.2003 whereby the appellants were convicted under sections 25 (1-b)a of the Arms Act and sentenced to undergo rigorous imprisonment for a period of three years. The period already undergone during trial was ordered to be set off.

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3. The case of the prosecution, in short, as per the written report dated 28.01.2003 of A.S.I. Shambhu Yadav (P.W.1) of Sadar Police Station, Chatra, is that on 28.01.2003 at about 11:30 am, a police team headed by Sub-Divisional Police Officer (SDPO), Chatra along with

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ASI Yugal Kishore Singh of Sadar Police Station,Chatra, officer-incharge of Itakohri Police Station Md. Gulam Sahid Ansari, Inspector Y.P. Thapa of C.R.P.F and two platoon C.R.P.F force of A/22 Battalion had gone for patrolling against the extremist. At about 15:30 hrs patrolling party reached at village Kendua-Sahor then they got secret information that illegal fire arms and explosive substance were kept in the houses of accused Kamaldeo Singh and Chander Singh, both residents of village Kendua- Sahore. The police party combed the house of accused Kamaldeo Singh and Chander Singh in presence of two local witnesses Gajadhar singh and Rajendra Singh. In the meantime accused Kamaldeo tried to flee away, however, he was apprehended and in presence of the two local witnesses, one single barrel country made gun and a yellow colored rexin bag containing three phials and one blue coloured plastic polithyne containing of explosive substance of about 250 gm and four iron plates of different sizes were recovered and seized from his possession. Thereafter, on information given by Kamaldeo Singh, the police party searched the house of accused Chander Singh and recovered two single barrel country made guns, of which one gun was found broken in two parts.

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4. On the basis of written report, FIR being Chatra Sadar P.S. Case No. 10/03 was registered under section 25(1-b)a/26 of the Arms Act and under Section 4/5 of the Explosive Substance Act. After completion of investigation charge sheet was submitted and cognizance of the offences were and the case was committed to the court of Sessions. Both the accused persons were charged under Sections 25(1-b)a/26 of the Arms Act and accused Kamaldeo Singh was further charged for the offence under Sections 4 and 5 of the Explosive Substance Act. Trial was held and at the conclusion of the trial, appellants were convicted and sentenced as aforesaid. Hence, this appeal.

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5. In order to prove its case, prosecution had examined five

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witnesses out of whom P.W.1 is SI Shambhu Yadav, who is the informant of the case; P.W.2 is A.S.I Yugal Kishore Singh; P.W.3 is ASI Sherjan Khan, who is the Investigating Officer of the case; P.W.4 is A.S.I Abdul Kalam and P.W.5 is SI Md. Gulam Sahid Ansari.

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6. PW.-1 is S.I. Shambhu Yadav, who is the informant of this case. P.W.1 has stated in his evidence that on 28.01.2003 at 11.30 a.m. they had gone for patrolling, against the extremist. They got secret information that Kamaldeo Singh and Chander Singh, both resident of Kendua-Sahor village have arms and explosive substance in their possession. They surrounded the house of Kamaldeo Singh then one person having gun and rexin bag tried to flee away but he was apprehended by police and he disclosed his name as Kamaldeo Singh. On his search, a gun and a yellow coloured rexin bag containing three phials and a blue colored plastic bag containing 250 gm of explosive substance and four small pieces of iron were recovered. P.W.1 further stated that seizure list of the recovered articles from the house of Kamaldeo Singh was prepared which was marked as Ext.-P1, on which he had signed. P.W.1 has proved his signature, which was marked as G to H. P.W.1 has proved the gun recovered from the house of Kamaldeo Singh, which was marked as material Ext.-1. Kamaldeo Singh further disclosed that some guns were kept in the house of Chander Singh and when the house of Chander Singh was searched then three guns were recovered out of which one gun was broken in two pieces. The seizure list of articles recovered from the house of Chandar Singh was prepared which was marked as exhibit-P2. P.W.2 has proved the material Exhibit of the recovered gun from the house of Chander Singh which was marked as Ext.-2. He has proved his written report which was marked as Ext.-P3.

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7. P.W.-5 is S.I. Gulam Sahid Ansari. He has stated in his evidence that on 28.01.2003, he was officer-in-charge of Itakohri Police Station and he was a member of team formed for patrolling

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against the extremist. P.W.5 further stated that when the house of Kamaldeo Singh was searched, one person having a gun and a rexin bag was trying to flee away but, he was apprehended, who disclosed his name as Kamaldeo Singh. He further deposed that one gun and some powder like substance was recovered from his possession. Further on disclosure of Kamaldeo Singh, three guns were recovered from the house of Chander Singh, out of which one gun was broken.

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8. P.W.-2 is A.S.I Yugal Kishore Singh and he was also a member of raiding party on 28.01.2003. P.W.2 has reiterated almost the same as the informant P.W.1 of the case.

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9. P.W.-4 is A.S.I Abdul Kalam. P.W.4 has produced the seized guns in the court relating to Chatra P.S. Case No.10/03.

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10. P.W.-3 is S.I. Sherjahan Khan, who is the Investigating Officer of the case. Investigating Officer has stated in his evidence that recovered guns were examined and all the guns were found in working condition. Investigating Officer has proved the report of Sergeant Major which was marked as Ext.-P8. He obtained the sanction order for prosecution in the Arms Act and Explosive Substance Act from the District Magistrate, Chatra which was marked as Ext.-P9.

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11. Learned counsel for the appellants Mr. Shailesh Kumar Singh, submitted that the case has been lodged as Sadar P.S. Case No.10/03 and that should have been indicated in the guns. The lack of any such indication on the guns creates doubt in the case. Learned counsel for the appellants further submitted that as per the evidence of PW1, PW2 and PW5 the seized material exhibits i.e. the four country made guns (Ext.1 to 1/3) were not produced in the court for identification. Learned counsel for the appellants also submitted that according to the prosecution case, one Gajendra Singh and another, Rajendra Singh local witnesses had witnessed the alleged search and seizure of the houses of each of the two appellants and were seizure list witnesses. Their signatures in seizure list Ext.-P1 and Ext.-P2

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were only formally proved by the informant or P.W.1. There is absolutely no explanation on record for non-examination of any of the two local witnesses namely, Gajendra Singh and Rajendra Singh. Learned counsel further submitted that non-examination of any independent local witness on the point of alleged search and seizure of fire arm from the houses of each of the two appellants creates reasonable and grave doubts about the truth of the prosecution case and creates a reasonable doubt on its veracity.

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12. Learned counsel for the appellants further submitted that as per the evidence of PW-1 S.I. Shambhu Yadav, appellant No.2 Chander Singh was not in the house, however, in his crossexamination, he said that Chander Singh was in the house. Therefore, counsel for the appellants says that PW-1 is a most unreliable witness.

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13. Learned counsel further submitted that the evidence of P.W.-1 S.I. Shambhu Yadav, was recorded on 17.11.2003, wherein he stated that “gun Ext.-1 yahi hai jo Kamaldeo Singh ke khandhe se baramad hua tha” stands falsified as contrary to the case record because the list of documents itself shows that all the materials exhibits were produced in court and identified for the first time on 05.09.2009, the date when ASI Abdul Kalam was examined as PW4 in the court.

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14. Learned counsel for the appellants submitted that, as per the evidence of P.W.1 S.I. Shambhu Yadav, he had seized the guns but it is P.W.4, who has produced the same in the court, therefore, the learned counsel says that this is not correct and it should have been produced in the court by P.W.1 himself.

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15. Learned counsel for the appellants further pointed out that the seizure list of articles, which were seized from the house of Chander Singh and was marked as Ext.-P2 is defective, because it was first of all been pointed out by Kamaldeo Singh, who is himself an accused and he himself is recipient of the copy of the seizure list but neither

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Chander Singh nor any member of his family has received the seizure list.

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16. Learned counsel for the appellants lastly submitted that the custody of the appellants is sufficient and both of them have spent reasonable time in custody for about 8 to 9 months.

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17. On the other hand, learned A.P.P. Mr. Sanjay Kumar Srivastava appearing on behalf of the State has submitted that the appellants have not produced the license of guns. Three guns were recovered from the house of appellant no.2 and one gun was recovered from the house of appellant no.1. Learned counsel has further submitted that the evidence of the informant P.W.1 is truly credible and there is no ambiguity and contradiction in his statements. Learned counsel further submitted that they have spent short time in custody.

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FINDINGS:

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18. Having heard both the counsels and having gone through the records of the case and the evidences and in the facts and circumstances, I find that various points have been raised by the learned counsel for the appellants that creates certain doubts and taken together enough questions are raised which may make the case of the prosecution rather week. First and foremost it is seen that this is a case in which all the prosecution witnesses are members of the police force. It is not necessary that if all witnesses are members of police force then, by this itself the evidence becomes vitiated. However, in the written report of the informant PW-1, it has been stated that search and seizure of the house of both the appellants were made in presence of two local witnesses namely Gajadhar Singh and Rajendra Singh, who were also seizure list witnesses and they had signed on both the seizure list i.e. Ext.-P1 and Ext.-P2. However, these two witnesses Gajadhar Singh and Rajendra Singh were not examined by the prosecution. Thus, issue raised is that these two are material witnesses as they are seizure witnesses to the

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recovery of alleged arms from both the appellants and more so they would have been the independent witness also then, why these two witnesses were not examined by the prosecution and hence, creates doubts in the prosecution case and investigation.

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19. Secondly, both in the written report and in the evidence of the informant or PW-1 it has come that recovery of the alleged guns from the house of the appellant no.2 Chander Singh was made on the disclosure by the appellant no.1 Kamaldeo Singh. But, at the time of the seizure from the house of Chander Singh neither Chander Singh nor any member of his family was apparently present in his house and neither they received the copy of this particular seizure list and this fact finds support from the Ext.-P2, which is seizure list of recovered guns from the house of appellant no.2 Chander Singh and it bears the signature of appellant no.1 Kamaldeo Singh, wherein appellant no.1 Kamaldeo Singh has written that he has received the copy of seizure list on behalf of appellant no.2 Chander Singh. Therefore, the seizure made from the house of the appellant no.2 Chander Singh also creates doubt. Another interesting aspect that has been pointed out from the evidence of the informant S.I. P.W.-1 Shambhu Yadav, is that informant in his examination-in-chief has stated that Chander Singh was not in his house at the time of the recovery of the alleged arms however, in his cross-examination informant has deposed that Chander Singh was present in his house. Therefore, informant has made contradictory statement regarding the presence of the appellant no.2 during the search and seizure of his house, which creates confusion as to whether appellant no.2 was in his house or whether he was not in his house during the alleged search and seizure and this raises doubt in the prosecution case.

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20. Hence, due to non-examination of both the seizure list witnesses by the prosecution i.e. Gajadhar Singh and Rajendra Singh, the seizure of alleged guns from the appellants becomes

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doubtful. So, prosecution has failed to prove the charge against both the appellants Kamaldeo Singh and Chander Singh under section 25(1-b)a of the Arms Act.

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21. Accordingly, the impugned judgment of conviction and order of sentence dated 08.03.2010 and 11.03.2010 respectively, passed by the learned Additional Sessions Judge, Fast Track Court-III, Chatra in Sessions Trial No. 84 of 2003 arising out of Chatra Sadar P.S. Case No.10/2003 cannot sustain and are hereby set-aside. Both the appellants are discharged from the liability of bail bonds.

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22. Accordingly, the present criminal appeal is allowed.

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(Ratnaker Bhengra,J.)

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Jharkhand High Court, Ranchi, Dated 06^th July, 2020, Madhav- NAFR

Kamaldeo Singh And Anr. v. State of Jharkhand

Case brief

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Kamaldeo Singh And Anr. v. State of Jharkhand

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