Dismissed

Manoj Kumar v. State of Jharkhand

Jharkhand HC6 Sept 2021Cr.Rev./50/2012

Case brief

AI extract

What is this about?

In this criminal revision, the High Court of Jharkhand examined the conviction and sentence under the Arms Act. Upholding the concurrent findings of the lower courts regarding the prosecution evidence and dismissing challenges to the discrepancy in the seizure list serial number, the Court found no illegality or perversity. It rejected the plea for sentence modification and dismissed the revision.

What did the court decide?

The criminal revision application was dismissed, the conviction and sentence were upheld, and the bail bond was cancelled.

Manoj Kumar Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 50 of 2012

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Manoj Kumar, Son of Sri Vijay Lal, Resident of Village Khudia Kalimati, P.O. & P.S. Nirsa, District-Dhanbad.

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… … Petitioner

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Versus The State of Jharkhand ` … … Opp. Party ---

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Petitioner : Mr. M. B. Lal, Advocate For the Opp. Party : Mr. Manoj Kumar Mishra, A.P.P.

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Through: Video Conferencing

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15 /06.09.2021

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1. Heard Mr. M. B. Lal, learned counsel appearing on behalf of the petitioner.

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2. Heard Mr. Manoj Kumar Mishra, learned A.P.P. appearing on behalf of the opposite party-State.

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3. This criminal revision application is directed against the judgment dated 07.01.2012 passed by the learned District & Sessions Judge-I, Dhanbad in Cr. Appeal No. 99/2011, whereby the learned appellate court has dismissed the appeal preferred by the petitioner by upholding the judgment of conviction and order or sentence dated 09.05.2011 passed by the learned Judicial Magistrate, 1^st Class, Dhanbad in G.R. No. 3803/2008, T.R. No. 563/2011.

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4. The learned trial court has convicted the petitioner for offence under Sections 25(1-B)a and 26 of the Arms Act and sentenced him to undergo rigorous imprisonment for two years with a fine of Rs. 5,000/- for offence under Section 25(1-B)a of the Arms Act and in case of default of payment of fine, he has been further directed to undergo simple imprisonment for six months. The petitioner has been further convicted for offence under Section 26 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 3,000/- and in

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case of default of payment of fine to undergo simple imprisonment for three months. Both the sentences were directed to run concurrently except the sentence of imprisonment in default of payment of fine.

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Arguments of the petitioner

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5. Learned counsel for the petitioner submits that the petitioner has remained in judicial custody for a period of about 11 months in connection with the present case. He also submits that so far as the merit of the case is concerned, the seizure list witnesses i.e., P.Ws. 2 and 4 have not supported the prosecution case and they have turned hostile and there is no independent witness in the present case to support the prosecution case. Learned counsel submits that so far as co-accused, namely, Afzal Alam is concerned, he has got no knowledge as to what ultimately happened in his case and from perusal of the impugned judgment, it appears that at the appellate stage in Criminal Appeal No. 99 of 2011, the present petitioner was the sole appellant.

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Arguments of the opposite party-State

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6. Learned counsel for the opposite party-State, while opposing the prayer, has submitted that a supplementaryaffidavit has been filed giving the details of the criminal cases against the petitioner, as mentioned in para-4 of the affidavit. He submits that considering the facts and circumstances of this case and also the concurrent findings given by the learned courts below, the petitioner is not entitled to any interference in revisional jurisdiction on the point of conviction as well as on the point of sentence.

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Findings of this Court

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7. As per the prosecution story, which is based on fardbeyan of the informant, S.I. Radhika Raman Minj, Officer-in-charge of Nirsa Police Station, which was recorded on 27.12.2008 near

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Mugma Railway Station Cabin at 23:45 hours, the informant was posted as officer-in-charge of police station and on the aforesaid date and time, he recorded his fardbeyan that while making investigation of Nirsa P.S. Case No. 233/2008 dated 24.12.2008, he came to know that some criminals have assembled near Mugma Railway Station and planning to commit some offence. The informant, in association with police raiding party of different police officials and constables, proceeded to Mugma Railway Station at 23:00 hours and he found near the Mugma Railway Station Cabin that two boys were talking to each other and they tried to flee away by seeing the patrolling party. The police raiding team chased them and some nearby villagers were also associated. The two persons were apprehended and were searched by the police in presence of two independent witnesses, namely, Guddu Ansari and Alam Ansari and their possession was searched, before which the police officers also gave their voluntary search, in which. Upon search of the two boys, one 9 mm country made pistol was recovered from the waist of Afzal Alam beneath his full pant along with three live cartridges loaded in it. The total description of the seized materials were mentioned in the fardbeyan. Further on search of other boy, namely, Manoj Kumar two live cartridges of 9 mm was recovered from the right back of his full-pant and two mobiles were also recovered from their possession. Both the apprehended persons disclosed their name and on demand of the papers of those articles by the police, they failed to submit any authority or paper for having fire arms and live cartridges. Consequently, treating it as illegal articles, the police seized all the articles at the place of occurrence and arrested both the accused persons.

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8. On returning to the police station, the case was registered as Nirsa P.S. Case No. 24/2008 dated 28.02.2008, G.R. Case No. 3802/2008. Both the accused persons were remanded in judicial

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custody and one Chandan Kumar Singh, A.S.I. of the said police station was given the charge of investigation. Upon investigation, charge-sheet No. 241/09 was submitted on 28.12.2009 against the accused persons including the petitioner for offence under Sections 25(1-B)a/35 and 26/35 of the Arms Act and vide order dated 20.02.2009 cognizance was taken under the same sections.

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9. During the course of trial, altogether 13 witnesses were examined on behalf of the prosecution; out of them, P.Ws. 2 and 4 are the seizure witnesses, P.W.-11 is the informant himself and P.W.-5 is the investigating officer of the case and the other witnesses were members of the raiding party. The following documentary evidences were also produced before the learned court below from the side of the prosecution: -

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Exhibit 1 and 1/1 are the signatures of P.W.2 on the seizure list; Exhibit 2 is the signature of B.N. Thakur on the seizure list; Exhibit 3 is the signature of P.W.-4 on the seizure list;

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Exhibit 4 is the sanction report of the D.C., Dhanbad;

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Exhibit 5 is the writing and signature on the report of FSL by P.W.-5;

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Exhibit 6 is the signature of Sri A. K. Sahi and A. K. Balmiki on the FSL report;

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Exhibit 7 is the sealed box of FSL No. 1;

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Exhibit 8 is the signature of the learned C.J.M. on P.S. 241/08;

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Exhibit 9 is the signature of Radhika Raman Minj on the written report;

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Exhibit 10 is the writing and signature and self-statement of O.C. Chandan Kumar Singh; and

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Exhibit 9/1 is the writing and signature of O.C. of forwarding and registering the case.

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10. Apart from the aforesaid documentary evidences, material exhibits were also produced before the learned court below. Exhibit M/I is the pistol bearing No. 711. Exhibit M/II and M/III

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are two cartridges. Exhibit M/IV and M/V is Nokia Mobiles. Exhibit M/VI and M/V (I to IV) are cartridges.

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11. After conclusion of the trial, the statements of the accusedpersons were recorded under Section 313 of Cr.P.C. and the same was read over and explained to them, to which they claimed to be not guilty. However, no defence witness was adduced on behalf of the accused persons.

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12. P.W. 2 is the seizure list witnesses. He has identified the signature as Exhibit 1. This witness has stated that the accused persons were arrest at the place of occurrence and he made signature on arrest memo, which was marked as Exhibit 1/1. P.W.-4 is also seizure list witness. He was the driver of patrolling party, who had supported his signature on the seizure list, which was marked as Ext.-3. P.W.-10 is the Sergeant Major, who had stated that the seized articles were produced by the investigating officer before him, which were examined and found as fire arms. He identified the seized country made pistol as well as five live cartridges. This witness was fully cross-examined and in his cross-examination, he has stated that there is difference of number on making of the pistol as USA 711 and USA 7111. P.W.13 was the formal witness, who had brought the two mobiles before the court, which was not subject-matter of charges, but the evidence proves that along with mobile phones fire arms were also recovered. P.W.-11 was the informant of the case and has fully supported the prosecution case. He exhibited the necessary documents and fully supported the recovery of the incriminating articles from the accused and preparation of seizure list, which reflected seizure of arms and two mobile phones (one from each of the accused persons). He has stated that the seizure list was prepared in the writing of Shri B. N. Thakur. This witness was also cross-examined, but it remain consistent. P.W.-5 is the investigating officer of the case, who has fully supported the prosecution case as narrated by the informant. This witness has

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stated that recovered arms were sent to the Forensic Science Laboratory for examination. He has named all other police officials who were present at the time of occurrence. He has also named the witnesses of the seizure list. He has also exhibited the prosecution sanction. He has also exhibited various material exhibits. In his cross-examination, he has categorically stated that the pistol was recovered from the co-accused, namely, Afzal Alam and he has also mentioned about the criminal antecedents of the accused persons in the case diary as mentioned at para-29 of the evidence. He identified the material exhibit M/I i.e. the country made pistol recovered from the possession of accused Afzal Alam. So far as P.Ws.-1, 3, 6, 7, 8, 9 and 12 are concerned, they were all part of the raiding party and they have fully supported the prosecution case.

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13. The learned trial court considered the materials on record and also the arguments advanced on behalf of the defence regarding discrepancy in the pistol recovered from the Afsal Alam with regard to the serial no. and recorded its findings at Para-27 of the judgment as under: -

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“27. After careful consideration of the evidence, oral and documentary available on record, hearing of rival submission of both the parties, having regard to the facts of antecedent of the accused persons and fact of raid, seizure and recovery of the fire arms and live cartridges, without proper and valid license or authority to the accused persons and after meticulous examination of the seizure list and the report of the Forensic Science Laboratory, it appears that there may be a bonafide mistake in writing of serial number as USA 711 and USA 7111. Therefore, when all other witnesses in evidence on record are consistent in support of the alleged offence, only omission of digit ‘1’ in the last of the serial no. In the seizure list cannot throw out the whole prosecution case. Especially when, there is no prejudice against the accused in preparation of seizure list and recovery of fire arms. It is cardinal principal of criminal trial that there must not be any prejudice in the case of the prosecution. In opinion of this court only omission of digit ‘1’ at the place of 711 when it may be either 711 or 7111 the fire arms is the same. This is not major discrepancies rather this may be the mistake of pen or mistake due to lack of proper light in the night at the time of recording of seizure list. This discrepancy alone is not able to extend the benefit of

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doubts in favour of the accused persons from other fact of the case.”

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14. The learned trial court was of the view that the prosecution has been able to prove the case against the accused persons beyond shadow of all reasonable doubts for offence under Section 25(1-B)a and 26 of the Arms Act and accordingly sentenced them to undergo R.I. for two years for offence under Section 25(1-B)a of the Arms and Act with a fine of Rs. 5,000/each and further sentenced to undergo R.I. for one year for offence under Section 26 of the Arms Act with a fine of Rs. 3,000/-. Both the sentenced were with default clauses. So far as Section 35 of the Arms Act is concerned, the same was not proved as the raid was near Mugma Railway Station Cabin, which was not a premise. Thus, the learned trial court convicted the accused persons including the petitioner for offence under Section 25(1B)a and 26 of the Arms Act and acquitted the accused persons including the petitioner for offence under Section 35 of the Arms Act

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15. So far as learned appellate court is concerned, it also scrutinized all the materials on record and gave concurrent findings by upholding the judgment of conviction and did not interfere with the sentence.

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16. From perusal of the records, it is apparent that it has come in evidence that the seizure list was prepared at the place of occurrence and the case as registered after returning to the police station. The signature of the seizure witness-Alam Ansari (P.W.2) has been marked as Ext.-1 and signature of other seizure witness, namely, Guddu Ansari (P.W.-4) has been marked as Ext.-1/1. Accordingly, the argument of the learned counsel for the petitioner that P.Ws.-2 and 4 have not supported the prosecution case, is devoid of any merit. This Court further finds that the other witnesses, who were the members of the raiding party, have supported the prosecution case and the learned

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courts below after scrutinizing the materials on record have come to concurrent findings and have convicted the petitioners for offence under Sections 25(1-B)a and 26 of the Arms Act.

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17. This Court finds that there are concurrent findings recorded by the learned courts below with regard to the conviction of the petitioner for offence under Sections 25(1-B)a and 26 of the Arms Act after scrutinizing the materials on record. This Court does not find any illegality or perversity or material irregularity in the impugned judgments and no illegality or perversity, as such, has been pointed out by the learned counsel for the petitioner. This Court is of the considered view that there is no scope for re-appreciation of materials on record and coming to a different finding in revisional jurisdiction. Accordingly, the conviction of the petitioner for offence under Sections 25(1-B)a and 26 of the Arms Act is hereby upheld.

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18. This Court finds that an affidavit has been filed by the State in the present case on 02.08.2021, wherein it has been mentioned that there are altogether three cases against the petitioner which are as follows: -

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(i) Nirsa P.S. Case No. 241/2008 dated 28.12.2008 under Sections 25(1-B)a/26/35 of the Arms Act (i.e., the present case);

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(ii) Nirsa P.S. Case No. 232/2008 dated 20.12.2008 under Section 394 of IPC; and

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(iii) Nirsa P.S. Case No. 233/2008 dated 24.12.2008, S.T. No. 259/2009 under Sections 394/302/34 of IPC and 27 of the Arms Act.

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19. Considering the aforesaid facts and circumstances of this case, including the fact that a number of cases were registered against the petitioner, this Court is of the considered view that the petitioner does not deserve any sympathetic view with regard to sentence. This Court is also of the considered view that the learned courts below have appropriately passed the sentence

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against the petitioner by well-reasoned orders and there is neither any illegality nor perversity nor irregularity in the orders passed by the learned courts below on the point of sentence. Considering the totality of the facts and circumstances of this case, this Court is not inclined to modify the sentence of the petitioners in any manner and accordingly, the present revision petition is hereby dismissed.

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20. Bail bond furnished by the petitioner is hereby cancelled.

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21. Interim order, if any, stands vacated.

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22. Pending interlocutory applications, if any, are closed.

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23. Let the lower courts record be sent back to the leaned court concerned.

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24. Let a copy of this order be communicated to the learned court below through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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Mukul

Manoj Kumar v. State of Jharkhand

Case brief

What is this about?

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Manoj Kumar v. State of Jharkhand

Case brief

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