Allowed¶90

Brajesh Kumar Singh v. The State Of Jharkhand

Jharkhand HC18 Sept 2024Cr.Rev./1502/2016

Case brief

AI extract

What is this about?

Jharkhand HC (Ranchi) criminal revision allowed 18.09.2024; convictions under Arms Act S.25(1-B)a and IPC S.120(B)(2) set aside; recovery of 9 MM pistol, cartridges and Rs.10,000/- from unlocked police-barrack box not proved to belong to petitioner; non-seizure of box and absence of petitioner at seizure held serious prosecutorial infirmity; Garhwa P.S. Case No.296 of 2011; trial CJM Garhwa 13.03.2014; appellate Sessions Judge Garhwa 16.08.2016 (Cr. Appeal No. 13 of 2014); bail bond liability discharged.

What did the court decide?

Impugned judgments of the learned appellate court and the learned trial court set aside, overturning the petitioner's convictions; bailors of the petitioner discharged from the liability of their bail bonds; trial court records directed to be sent back to the court concerned. ¶90

Brajesh Kumar Singh Vs The State Of Jharkhand — Jharkhand HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the prosecution proved beyond reasonable doubt that the firearms, ammunition and cash seized on 22.08.2011 were recovered from a box belonging to the petitioner, given that the box was neither seized nor identified as his. +1 more

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Court's answer

Even if the defence version of the petitioner is not taken into consideration, the prosecution has not been able to prove the seizure of arms from the box belonging to the petitioner.

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Ratio / Principle

The prosecution neither seized the box from which the arms and ammunitions were alleged to have been recovered, nor did the seizure list mention lock, key or clothes in that box.

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Key takeaways

Non-seizure of the box from which the incriminating articles were recovered is a serious infirmity; the prosecution failed to connect the seized firearms and the box with the petitioner and therefore failed to prove the charges beyond reasonable doubt.ratio¶88
The aforesaid aspects were not properly considered by the lower courts; the impugned judgements suffer from serious illegality and cannot be sustained in the eyes of law.ratio¶90
This Court exercised its powers under revisional jurisdiction to rectify the error committed by the learned courts and set aside the impugned judgments of both the appellate court and the trial court.

Detailed headnote1 paragraphs

Criminal revision (Cr. Revision No. 1502 of 2016, High Court of Jharkhand at Ranchi, decided 18.09.2024, Anubha Rawat Choudhary, J.) — ALLOWED; concurrent convictions set aside. The trial court (CJM Garhwa, judgment dated 13.03.2014, G.R. Case No. 1139 of 2011 / Trial No.30 of 2014, arising out of Garhwa P.S. Case No.296 of 2011) had convicted the petitioner under Section 25(1-B)a of Arms Act and, together with co-accused Rajesh Kumar and Shakil Ahmad @ Sonu Ansari, under Section 120(B)(2) of IPC, on recovery of a 9 MM pistol, one live cartridge, two misfired cartridges and Rs.10,000/- from an unlocked box in a shared police barrack on 22.08.2011, following the co-accused's confessional statement; the Sessions Judge, Garhwa (16.08.2016, Criminal Appeal No. 13 of 2014) upheld the conviction and reduced the sentence to the period undergone. Held: the box was never seized, bore no name of the petitioner, was unlocked, and the petitioner was absent and on duty at the seizure; the prosecution failed to connect the seized firearms and the box with the petitioner — charges not proved beyond reasonable doubt; both impugned judgments suffer serious illegality and were set aside; bailors discharged from liability of bail bonds.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 1502 of 2016

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Brajesh Kumar Singh son of Jagarnath Singh, resident of VillageChhatarpur, P.O. & P.S.- Chhatarpur, District- Palamau (Jharkhand)

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… … Petitioner

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-Versus-

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The State of Jharkhand … Opposite Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate Mr. Anurag Kashyap, Advocate For the State : Mr. Mohua Palit , A.P.P. ---

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Lastly heard on 12.09.2024.

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10/18.09.2024 Heard learned counsel for the parties.

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2. This criminal revision is directed against the judgment dated 16.08.2016 passed by the learned Sessions Judge, Garhwa in Criminal Appeal No. 13 of 2014 whereby and whereunder the learned appellate court upheld the conviction of the petitioner for the offences under Section 25(1-B)a of Arms Act and Section 120(B)(2) of the Indian Penal Code (hereinafter referred to as IPC) and modified the sentences to the period undergone by him.

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3. The learned Chief Judicial Magistrate, Garhwa vide judgment dated 13.03.2014 passed in G.R. Case No. 1139 of 2011 (Trial No.30 of 2014) arising out of Garhwa P.S. Case No.296 of 2011 had convicted the petitioner for the offence under Section 25(1-B)a of the Arms Act and had further convicted the petitioner and co-accused persons namely, Rajesh Kumar and Shakil Ahmad @ Sonu Ansari under Section 120(B)(2) of IPC. The learned trial court had acquitted the coaccused persons namely, Rajesh Kumar and Shakil Ahmad @ Sonu Ansari from the charge under Section 25(1-B)a of Arms Act and had also acquitted all the three accused persons including the petitioner from the charges under Sections 26 and 35 of Arms Act.

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4. The learned trial court had sentenced the petitioner to undergo Simple Imprisonment for 2 ½ years and fine of Rs.10,000/- and in

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payment of default of fine, to further undergo Simple Imprisonment for 02 months for the offence under Section 25(1-B)a of Arms Act and had further sentenced the petitioner and co-accused persons to undergo Simple Imprisonment for 06 months for the offence under Section 120(B)(2) of IPC.

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Arguments on behalf of the petitioner

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5. The learned senior counsel appearing on behalf of the petitioner submitted that although both the courts have given concurrent findings with regard to conviction of the petitioner, but the evidence of PW-1, PW-5 and DW-1 have not been properly examined. The learned counsel also submitted that the appellate court has confined the sentence to the period already undergone, but since the petitioner was a government servant, the petitioner is fighting for his acquittal.

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6. While giving the background of the case, the learned counsel for the petitioner submitted that the petitioner was implicated in the present case on the basis of confessional statement of the co-accused Sonu Khan @ Shakil Ahmad @ Sonu Ansari recorded in connection with one case of dacoity who had disclosed that the petitioner had recovered one pistol from the possession of Sonu Khan @ Shakil Ahmad @ Sonu Ansari, but when the father of the Sonu Khan @ Shakil Ahmad @ Sonu Ansari came there, then he negotiated for release of his son at Rs. 50,000/- with the petitioner and in order to let go Sonu Khan @ Shakil Ahmad @ Sonu Ansari, the petitioner took away the pistol and out of Rs.50,000/-, an amount of Rs.10,000/- was paid and the rest amount of Rs.40,000/- was still to be paid. The confessional statement of Sonu Khan @ Shakil Ahmad @ Sonu Ansari was recorded on 21.08.2011 and on the very next date i.e. on 22.08.2011, a raid was conducted in the barrack where many constables were there and it was alleged that by the side of the bed of the petitioner, one pistol, 1 live cartridge, 2 misfired cartridges and Rs.10,000/- were recovered from the box of the petitioner.

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7. The learned counsel while assailing the impugned judgments submitted that the box was not seized and the raid was conducted in

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absence of the petitioner though he was on duty. He has further submitted that there was no lock in the box.

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8. The learned counsel further submitted that the box could not be attributable to the petitioner as there were many persons living in the barrack and PW-5 in his cross examination in Paragraph-8 has stated that in the seizure list, it was not mentioned that the box was belonging to the petitioner.

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9. The learned counsel for the petitioner also submitted that the box of the petitioner was under lock and key and at the request of the petitioner and upon an order passed by the learned trial court, the defence witness had brought the box in the court which was found locked and it was opened in the court in front of the petitioner. The learned counsel submitted that the aforesaid aspects of the matter clearly show that there was no recovery from the box of the petitioner and therefore, the prosecution has completely failed to prove the case against the petitioner beyond all reasonable doubt.

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Arguments on behalf of the Opposite Party-State

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10. The learned A.P.P. appearing on behalf of the Opposite PartyState, on the other hand, referred to Paragraph-11 of the learned trial court’s judgment and submitted that the witnesses have fully supported the prosecution case and the impugned judgment convicting the petitioner does not call for any interference in revisional jurisdiction.

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Findings of this Court

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11. The prosecution case is based on the self-statement of S.I. Lakhan Ram, Officer-in-charge, Garhwa P.S. (PW-3) recorded on 22.08.2011 at 02:30 hours at the Police Barrack of Garhwa P.S. stating that on 21.08.2011 at 05:30 P.M, he received secret information that Sonu, Chintu Pandey and Mubarak Ansari, who are involved in Ranka Dacoity, are moving on a black coloured Discover Motorcycle without number plate on the Ranka Road for committing offence. On the basis of the information, the Informant alongwith S.I. Ashok Kumar Sinha and A.S.I. B.N. Ojha proceeded on the motorcycle of Police Vijay Kumar Singh and instructed A.S.I. Sanmukh Ram to follow the armed

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police party. When the Informant reached near a puncture repairing shop on the pitch road near Annraj Nawadih Village, he saw one Discover Motorcycle without number plate standing there and two persons were pushing one white Maruti 800 Car and one person was sitting on the driver seat. On suspicion, when the Informant enquired about the Discover Motorcycle, the person sitting on the driving seat got down and told the Informant that the motorcycle and Maruti Car belongs to him and disclosed his name as Shakil Ahmad. When the Informant tried to apprehend Shakil Ahmad, he started to flee away. In the meantime, A.S.I. Sanmukh Ram alongwith the armed police party arrived there and after chase, Shakil Ahmad was apprehended. On further enquiry, he disclosed his name as Sonu Khan @ Shakil Ahmad @ Sonu Ansari. Thereafter, on 21.08.2011 at about 08:00 P.M., the Informant recorded the confessional statement of Shakil Ahmad in presence of two independent witnesses in which he disclosed in detail about five occurrences under Garhwa P.S. and one occurrence under Ranka P.S. in which he was involved. He further disclosed that one month ago, he had purchased one 9 MM pistol with three cartridges from Imtiyaz Khan of Nagar Untari, who sells arms, for a sum of Rs.22,000/- and 20- 25 days ago; when he was making a plan with his friend Mubarak Ansari for committing an offence in the noon, Police Brajesh Kumar and Police Rajesh Kumar of Garhwa police station had entered into his house all of a sudden and had caught him, Mubarak Ansari escaped and police had recovered one 9 MM pistol and twothree fifteen pistols from his possession and both the constables had started threatening him. In the meantime, his father namely, Fujail Ahmad and uncle Ilahi had come there and had requested them to leave him. Both the constables had told them that the pistol appears to be good and they like it and they wanted to keep the same. Thereafter, both constables had demanded Rs.50,000/- for not lodging any case against him. After bargaining, both constables had agreed at Rs.40,000/- and his father had given Rs.10,000/- and had promised to pay Rs.30,000/-

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till the evening. Thereafter, both the constables went away with the 9 MM pistol and Rs.10,000/-.

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Thereafter, on the basis of the confessional statement of Sonu Khan @ Shakil Ahmad @ Sonu Ansari, the Informant discussed the matter with his superior officers and on 22.08.2011 at 01:00 P.M., the Informant searched the box of Police No.796 Brajesh Kumar Singh (Petitioner) placed in the Police Barrack at the south-western side of Garhwa police station in presence of A.S.I. Kameshwar Singh, S.I. Ashok Kumar Sinha and A.S.I. Awadhesh Prasad Singh. On search, the Informant recovered one 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination). S.I. Awadhesh Prasad Singh prepared a seizure list as per law and two witnesses namely, S.I. Ashok Kumar Sinha and A.S.I. Kameshwar Singh made their signatures on the seizure list. On enquiry, the guard and havildar informed that Police 796 Brajesh Kumar Singh has gone out. After search, Police No.811 Rajesh Kumar was also not found there.

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12. On the basis of the self-statement, a formal F.I.R. was registered as Garhwa P.S. Case No.296 of 2011 dated 22.08.2011 under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act against the petitioner and Police No.811 Rajesh Kumar and Shakil Ahmad @ Sonu Ansari.

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13. Thereafter, the Investigating Officer submitted Charge-sheet No. 02/2012 dated 13.01.2012 against Sonu Khan @ Shakil Ahmad @ Sonu Ansari under the same sections and on 03.03.2012, cognizance of the offence was taken in the case under the same sections. Thereafter, the Investigating Officer submitted Supplementary Charge-sheet No.92/2012 dated 29.02.2012 under the same sections against Police No.811 Rajesh Kumar and on 19.03.2012, cognizance of the offence was taken him also under the same sections. On 07.06.2012, charges under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act were framed against Sonu Khan @ Shakil Ahmad @ Sonu Ansari

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and Rajesh Kumar which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

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14. Thereafter, the Investigating Officer submitted Supplementary Charge-sheet No.370/2012 dated 21.09.2012 under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act against the petitioner and on 21.09.2012, cognizance of the offence was taken him also under the same sections.

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15. On 10.01.2013, charges under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act were framed against the petitioner (Format of Charge was again prepared and signed on 12.03.2014) which were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

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16. In course of trial, the prosecution examined altogether 10 witnesses in order to substantiate the charges. PW-1 is A.S.I. Kameshwar Singh, PW-2 is Havaldar Bishnu Sharma, PW-3 is S.I. Lakhan Ram who is the Informant of the case and was posted as the Officer-in-charge, Garhwa P.S., PW-4 is A.S.I. Umesh Prasad of Garhwa Police Station and the Investigating Officer of the case, PW-5 is S.I. Ashok Kumar Sinha of Garhwa Police Station, PW-6 is Pandey Ajay Kumar, Sergeant Major, PW-7 is S.I. Ronkul Islam Khan of Garhwa Police Station, PW-8 is A.S.I. Anil Mahto of Garhwa Police Station, PW-9 is S.I. Awadhesh Prasad Singh and PW-10 is Home Guard Dilip Kumar Dubey posted at P.P. Office, Garhwa.

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17. The prosecution exhibited the seizure list as Exhibit-1, selfstatement of S.I. Lakhan Ram (Informant) as Exhibit-2, Report of Sergeant Major as Exhibit-3, sanction order as Exhibit-4, confessional statement of Shakil Ahmad @ Sonu Khan available on the records of S.T. No.289/2012 as Exhibit-5 and the endorsement on the selfstatement of the Informant as Exhibit-6. The prosecution produced and exhibited the pistol as Material Exhibit-I and 03 cartridges as Material Exhibits- I/1, I/2 and I/3.

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18. PW-1 (A.S.I. Kameshwar Singh) was a member of the raiding team. He is a seizure list witness of the recovery of 9 MM pistol loaded

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with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- from the box the box of the petitioner kept at the Police Barrack of Garhwa Police Station. He has supported the facts of apprehending Shakil Ahmad @ Sonu Ansari and recording his confessional statement by the Informant. He exhibited the seizure list as Exhibit-1. During cross-examination on behalf of the petitioner, PW1 admitted that he is only a seizure list witness and except that he does not know anything about the case. The box mentioned in the seizure list was found near the bed of the petitioner. It was not written in the seizure list that the box was found near the bed of the petitioner. 30-35 constables were living in the said barrack and all have their separate beds and boxes. The seized articles have not been produced in court before him. Seizure list was prepared in his presence, but he had not prepared the seizure list and he had only signed on the seizure list. There is no mention of the lock in the seizure list. He does not remember as to whether the box was locked or open. He denied the suggestion that after making the seizure list, the petitioner was implicated in the case and neither the said box belonged to the petitioner, nor the petitioner had kept article in it. He denied the suggestion that the seizure list is false. 19. PW-2 (Havaldar Bishnu Sharma) deposed that on 22.08.2011 at about 01:30 P.M., one 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination) were recovered from the box of the petitioner by S.I. Awadhesh Prasad Singh and S.I. Ashok Kumar Sinha and a seizure list was prepared. During cross-examination on behalf of the petitioner, PW-2 admitted that he had not prepared the seizure list and his signature is not present in the seizure list and his statement was also not taken by the police. He further admitted that the investigation was also not conducted in his presence and the confessional statements of the accused persons were not recorded in his presence. He also admitted that he cannot say the name and size of the box from which the pistol was recovered and no name was written on the box. The petitioner was not enquired in his presence as to whether the box belonged to him or

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not and no enquiry was made from Sonu or the petitioner in his presence. He also admitted that he cannot say the identification as to whether box belonged to the petitioner. It has also come in cross examination of P.W-2 that there were three barracks in which 40 to 45 constables and hawaldars were staying. P.W-2 has also stated during cross examination that the petitioner was not called upon to say as to whether the box belonged to him or not.

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20. PW-3 (S.I. Lakhan Ram) is the Informant of the case. In his examination-in-chief, he deposed that on 22.08.2011 at about 01:30 P.M., one illegal 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination) were recovered from the box of the petitioner and a seizure list was prepared by S.I. Awadhesh Prasad Singh. He exhibited the self-statement written by him as Exhibit-2. During crossexamination on behalf of the petitioner, PW-3 admitted that he had written the self-statement for instituting FIR on the basis of the confessional statement of Sonu Khan. He further admitted that he has not written in the self-statement that at the instance of Sonu Khan, the fire-arms were recovered from the barrack. He also admitted that he has not written in the self-statement that the recovered pistol, cartridges and money was shown to Sonu Khan and the same article were given to the petitioner and Rajesh by him. Name and number of the petitioner was not written in the box. He further admitted that the box from which the illegal pistol and the cartridges were seized was not locked at that time and the petitioner was not present at the time of seizure. He denied the suggestion that the said box from which the articles were seized did not belong to the petitioner.

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21. PW-4 (A.S.I. Umesh Prasad) is the Investigating Officer of the case. He deposed that he took the charge of investigation of the case on 01.06.2012 and submitted charge-sheet against the petitioner on the basis of the Case Diary written by the previous Investigating Officer namely, Enaul Haque. During cross-examination on behalf of the

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petitioner, PW-4 admitted that he has submitted charge-sheet only against the petitioner and he has no other connection with the case. 22. PW-5 (S.I. Ashok Kumar Sinha) deposed that the seizure list was prepared by S.I. Awadhesh Prasad Singh and he is a witness in the seizure list prepared on 22.08.2011 at 01:30 PM. One 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination) were recovered from the box of the petitioner. the articles were recovered on the basis of the confessional statement of Sonu Ansari @ Shakil. During crossexamination on behalf of the petitioner, PW-5 admitted that the said box was not locked at the time of seizure. He also admitted that in the seizure list, box, lock, key or clothes are not mentioned. He further admitted that the seized articles are not present in court before him. He denied the suggestion that the seized articles do not belong to the petitioner and nothing was recovered from his possession.

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23. PW-6 (Pandey Ajay Kumar) is the Sergeant Major who has verified the seized articles of the case. He deposed that he cannot say whether the seized pistol was country-made or company made. One live cartridge was found by him in effective condition. He exhibited the Examination Report as Exhibit-3.

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24. PW-7 (S.I. Ronkul Islam Khan) is the other Investigating Officer. He deposed that he took the charge of investigation of the case on 23.12.2012 and has submitted charge-sheet against Constable Rajesh Kumar on the basis of the investigation made by the previous Investigating Officer and later on, he handed over the investigation to A.S.I. Umesh Prasad. The petitioner declined to cross-examine this witness.

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25. PW-8 (A.S.I. Anil Mahto) is a formal witness who produced one pistol bearing MR No.48/11 and 03 cartridges in court on the direction of the Officer-in-charge, Garhwa Police Station. He exhibited the pistol as Material Exhibit-I and 03 cartridges as Material Exhibits- I/1, I/2 and I/3. During cross-examination on behalf of the defence, he admitted that the date 29.10.11 is written on the cartridges.

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26. PW-9 (S.I. Awadhesh Prasad Singh) is also an Investigating Officer of the case. He deposed that he had prepared the seizure list and had taken the signatures of the witnesses namely, S.I. Ashok Kumar Sinha and A.S.I. Kameshwar Singh on the seizure list and he had taken the re-statement of the Informant. He further deposed that one 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- were recovered from the box of the petitioner. He had got the pistol and the cartridges verified by the Sergeant Major and had obtained order for prosecution of the accused persons. He exhibited the sanction order as Exhibit-4. He had also recorded the confessional statement of the accused Sonu Khan. During cross-examination on behalf of the defence, PW-9 admitted that the case was registered on 22.08.2011 and the seizure list does not contain the signature of the petitioner. He further admitted that the seized box was not locked and the name of the petitioner was not written on the box.

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27. PW-10 (Home Guard Dilip Kumar Dubey) is a formal witness. He exhibited the confessional statement of Shakil Ahmad @ Sonu Khan as Exhibit-5. During cross-examination on behalf of the defence, PW10 admitted that the confessional statement was not recorded in his presence.

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28. On 18.02.2014, statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the incriminating evidences put to him. The petitioner in his defence stated that the police had not recovered the firearms from his box, his box was locked and key of his box is still in his possession. The petitioner further stated in his defence that he was on target since the time of S.P. Garhwa namely, Saket Singh and he was working as his informer. Therefore, Lakhan Ram, Officerin-charge and D.S.P. Ajay Kumar were angry with him and therefore, he has been implicated by them in the instant case. He stated that he would give defence witness and produce document.

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29. On 18.02.2014, the petitioner filed a petition alongwith an envelope containing the keys of his box before the learned trial court praying for production of his box. The learned trial court issued a

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direction to produce the box in court and accordingly, A.S.I. Rama Shankar Singh produced the box of the petitioner in court on 21.02.2014. The petitioner examined A.S.I. Rama Shankar Singh as DW-1 in his defence. DW-1 in his examination-in-chief, deposed that in the light of Letter No.321 dated 20.02.2014 of the Officer-in-charge, Garhwa, he has produced the box of the petitioner in court in connection with Garhwa P.S. Case No.296 of 2011. He exhibited Letter No.321/14 dated 20.02.2014 as Exhibit-A. He further stated that he has produced the box of the petitioner from Police Barrack, Garwa. The name ‘Brajesh Kumar Singh, Chhatarpur’ written on the box has been erased, but it is readable and, beneath it, ‘Jharkhand Police, Garhwa’ is written. The two locks in the box are locked and the box contains articles. He exhibited the box as Material Exhibit-I. During his cross-examination, DW-1 admitted that only Jharkhand Police, Garhwa written on the box is clearly readable. The learned trial court noted that the words of two lines on the box have been erased and only ‘Jharkhand Police, Garhwa’ is readable. He admitted that he is posted at Garhwa since February, 2013. He further admitted that he does not know as to what is kept in the box and why the box has been brought to the court and he has brought the box as per the direction of the Officer-in-charge only.

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30. The learned trial court after considering the materials on record recorded it findings at Para-30, 31 and 32 in connection with the charge under Sections 25(1-B)a of the Arms Act and at Para-35 in connection with the charge under Section 120(B) of IPC, which are as under:

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“ 30. After hearing the argument of both the parties, I have carefully gone through the entire records, evidence and the materials available on it and I find that confessional statement Ext.-5 proves that co-accused Shakil Ahmad @ Sonu Ansari confessed before S.I. Lakhan Ram of Garhwa police Station on 21.8.2011 and just on the second day i.e. on 22.8.2011 at 1.30 P.M., the box of police Constable Brajesh Kumar Singh kept in police barrack situated in Garhwa Police Station premises was searched and one 09 M.M. illegal pistol, one live cartridge and two misfired cartridges along with rupees ten thousand have been recovered from the aforesaid box of Brajesh Kumar Singh. Seizure list for the aforesaid seizure has been prepared which has been marked as Ext.-1. S.I. Lakhan

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Ram who was the officer-in-charge of Garhwa Police Station gave his self-statement on the basis of which F.I.R. has been instituted against the aforesaid accused persons and after investigation Charge sheet has been submitted. Sanction for the prosecution under the Arms Act against all the three accused persons named above has been taken by Deputy Commissioner, Garhwa (Ext. 4). The seized articles were sent to Sergeant Major who verified and reported that aforesaid seized 09 M.M. pistol was found effective and one cartridge was found alive and two were found misfired by the Sergeant Major.

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31. I have discussed the oral and documentary evidences in detail. P.W.-1 Kameshwar Singh and P.W.-5 Ashok Kumar Sinha are the seizure list witnesses and police officers of Garhwa Police Station who were cited as witnesses in this case has fully supported the fact that aforesaid seized articles (Arms and ammunitions) were recovered from the box of Brajesh Kumar Singh before them and they put their signatures on the seizure list (Ext. 1). P.W.-9 Awadhesh Prasad Singh, the then S.I.. Garhwa Police Station has also stated that the aforesaid seizure list was prepared by him.

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32. On the prayer of the defence, box of Constable Brajesh Kumar Singh has been brought in court and the same was opened on his prayer, but it is the clear case of the prosecution that aforesaid arms and ammunitions were seized from the box of constable Brajesh Kumar Singh, but his box was not seized. In such circumstances, in my opinion, the box of Brajesh Kumar Singh may be locked by any person, either by Brajesh Kumar Singh himself or by any other person as from the perusal of case record, it is clear that the said accused Brajesh Kumar Singh was not arrested at the spot or soon after the seizure of the alleged arms and ammunitions, rather he has surrendered in court on 16.07.12, whereas seizure has been made on 22.8.2011. During this period, the accused Brajesh Kumar Singh was quite free to handle his box in his own way at his choice. As such, in my opinion, showing his box in court under lock is not helpful for him in any manner. Under the aforesaid facts and circumstances, I find and hold that the prosecution has been able to prove its case against accused Brajesh Kumar Singh under Section 25(1-B) a of the Arms Act.

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35. Further, I have to find out as to whether the prosecution has been able to prove the charge under Section 120(B) of the I.P.C. against accused persons. As per Section 120(A) of the I.P.C., when two or more persons agree to do or cause to be done an illegal act, they commit criminal conspiracy.

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Here in this case, prosecution has brought evidence on record that accused Rajesh Kumar and co-accused Sonu Khan has given an illegal pistol and three cartridges to accused Brajesh Kumar Singh and having illegal arms in conscious possession by Brajesh Kumar

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Singh is an illegal act. Hente, I find and hold that prosecution has been able to prove its case under Section 120(B)(2) of the I.P.C. against all the aforesaid three accused persons namely, (1) Brajesh Kumar Singh, (2) Rajesh Kumar and (3) Shakil Ahmad @ Sonu Ansari as main offence under Section 25(1-B)a of the Arms Act which is punishable with imprisonment not punishable with death or life imprisonment or rigorous imprisonment as required by Clause 1 of Section 120(B) of the I.P.C. Offence of this criminal conspiracy would come under Section 120(B)(2) of the I.P.C..

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31. Accordingly, the learned trial court convicted the petitioner only for the offence under Section 25(1-B)a of the Arms Act and further convicted the petitioner and co-accused persons namely, Rajesh Kumar and Shakil Ahmad @ Sonu Ansari under Section 120(B)(2) of IPC and sentenced them as stated above.

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32. The learned appellate court also considered the materials on record and recorded its findings at Para-9, 10 and 11 which read as under:

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“ 9. After statement of the accused persons U/s. 313 Cr.P.C., one witness has been produced in defence. D.W,-1 Rama Shankar Singh was examined on 21.02.2014. before that an envelope was filed before the court on 18.02.2014 alongwith a petition on behalf of accused Brajesh Kumar Singh. It was submitted before the learned court that the envelop contains keys of the box of the accused Brajesh Kumar Singh and box be summoned from Police Station. The learned court below issued direction to produce the box and a copy of the petition was also forwarded to the P.S.. In pursuance to this order dated 18.02.14, box was produced on 21.02.2014 by Rama Shankar Singh, A.S.I. and Rama Shankar Singh was examined and crossexamined before court. The appellant Brajesh Kumar Singh was in custody at that time and he was also produced before court.

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10. The learned counsel for appellant Brajesh Kumar Singh has emphasised a lot on this sequence and on the statement of D.W.. On 21.02.2014, the box produced was locked and the two keys were produced before the court and the two locks of the box could be unlocked before the court with these keys. The learned counsel for the appellant has drawn my attention to Para-18 of crossexamination of P.W.-5 who has stated that the box of Brajesh Kumar Singh, which was searched, was not locked. I consider that this submission has got not much force. If the appellant was so sure of the box, then the attention should have been drawn before the informant, 1.O. and seizure list witnesses and box should have been brought before them to draw their attention. But such procedure has

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been adopted at the stage of defence when the prosecution witnesses were already discharged. It is further to be noted that the search was made on 22.08.11 and the appellant Brajesh Kumar Singh had surrendered on 16.07.2012. The box was searched by the Officer-Incharge alongwith other officers in the rank of S.I., A.S.I., who constituted a team to take out operation. No defence witness has been examined except D.W.-1 who is official of Town P.S. and has appeared to produce box before court. The appellants have alleged false implication, but they have not examined any witness or produced any document to corroborate the same. The defence set up by the appellant is not supported with any documentary or oral evidence. In view of the same, the defence of the appellant of false implication cannot be accepted. Another point argued on behalf of appellant is that the appellant Sonu Khan has been acquitted in S.T. No.289/2012. I consider that when an acquittal of accused is made, then chain of events is not complete. Sonu Khan is an accused in that case and was wanted by police. The acquittal in itself is not sufficient to dislodge the prosecution case that the two constables had apprehended the 3rd appellant.

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11. I consider that the material on record has been meticulously considered by the learned lower court and has rightly convicted the appellants. Accordingly, the judgment of conviction is upheld. …………………………….”

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33. After hearing the parties and perusal of the records of the case, this Court finds on the basis of the confessional statement of Sonu Khan @ Shakil Ahmad @ Sonu Ansari made in connection with another occurrence, on 22.08.2011 at 01:00 P.M., the Informant (PW-3) alongwith A.S.I. Kameshwar Singh (PW-1), S.I. Ashok Kumar Sinha (PW-5) and A.S.I. Awadhesh Prasad Singh (PW-9) searched the box of the petitioner placed in the Police Barrack at Garhwa Police Station and recovered one 9 MM pistol loaded with one live cartridge, two misfired cartridges of 9 MM and Rs.10,000/- (20 notes of 500 denomination). S.I. Awadhesh Prasad Singh from the box and accordingly, a seizure list was prepared in which S.I. Ashok Kumar Sinha and A.S.I. Kameshwar Singh are the seizure list witnesses. Admittedly, the box from which the fire arms were recovered was not seized by the raiding party. This Court also finds that upon an application filed by the petitioner and an order passed by the learned trial court, the box of he petitioner was produced before the learned trial court on 21.02.2014 by

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A.S.I. Rama Shankar Singh who was examined as DW-1. DW-1 in his examination-in-chief deposed that in the light of Letter No.321 dated 20.02.2014 of the Officer-in-charge, Garhwa, he has produced the box of the petitioner in court in connection with Garhwa P.S. Case No.296 of 2011 and he exhibited Letter No.321/14 dated 20.02.2014 as ExhibitA. He further stated that the two locks in the box are locked and the box contains articles. He exhibited the box as Material Exhibit-I. During his cross-examination, DW-1 admitted that only Jharkhand Police, Garhwa written on the box is clearly readable. The learned trial court noted that the words of two lines on the box have been erased and only ‘Jharkhand Police, Garhwa’ is readable. The box was also opened by the keys provided by the petitioner. This Court is of the considered view that even if the defence version of the petitioner is not taken into consideration, the prosecution has not been able to prove the seizure of arms from the box belonging to the petitioner which is apparent from the following discussions.

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34. This Court finds that as per the seizure list (Exhibit-1), only the fire-arms were seized and the box from which the said fire-arms were recovered was not seized by the Informant and the petitioner was also not apprehended on the spot, rather he was on duty at the time of seizure of the fire arms. PW-1 the seizure list witness in his cross-examination on behalf of the petitioner at Para-20 and 21 has admitted that there is no mention of the lock in the seizure list and he does not remember as to whether the box was locked or open. PW-2 in his cross-examination on behalf of the petitioner at Para-14 has admitted that no name was written on the box and the petitioner was not enquired in his presence as to whether the box belonged to him or not. He also admitted at Para20 that he cannot say the identification as to whether box belonged to the petitioner. PW-3 the Informant in his cross-examination on behalf of the petitioner at Para-10 and 11 has admitted that name and number of the petitioner was not written in the box and the box from which the illegal pistol and the cartridges were seized was not locked at that time and the petitioner was not present at the time of seizure. PW-5 the other

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seizure list witness in his cross-examination on behalf of the petitioner at Para-2 has admitted that the said box was not locked and at Para-6, he also admitted that in the seizure list, box, lock, key or clothes are not mentioned.

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35. This Court further finds that PW-4 Investigating Officer in his cross-examination on behalf of the petitioner admitted at that he has submitted charge-sheet only against the petitioner and he has no other connection with the case. PW-9 had prepared the seizure list and he is also an Investigating Officer of the case and in his cross-examination on behalf of the petitioner at Para-9, he stated that the seizure list does not bear the signature of the petitioner and at Para-18, he has admitted that the seized box was open and the name of the petitioner was not written on the box. PW-8 and 10 are formal witnesses. It has also come in cross examination of P.W-2 at Para-12 that there were three barracks in which 40 to 45 constables and hawaldars were staying. P.W-2 has also stated during cross examination that the petitioner was not called upon to say as to whether the box belonged to him or not.

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36. This Court finds that the prosecution neither seized the box from where they alleged that the arms and ammunitions were recovered, nor in the seizure list, it is mentioned about lock, key or clothes in the box from which the fire arms and ammunitions were seized.

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37. Considering the totality of the facts and circumstances of this case, the facts that the fire arms were seized from the side of the bed of the petitioner from an unlocked box in absence of the petitioner and neither the box was seized to prove that it belonged to the petitioner, nor other articles available in the box were seized to connect the petitioner with the box from which the firearms were seized and the cross examination of the witnesses clearly revealed that the box from which the firearms were seized did not mention the name of the petitioner, this Court finds that non-seizure of the box from which the incriminating articles were recovered is a serious infirmity on the part of the prosecution and the prosecution has also failed to connect the seized firearms and the box from which the fire-arms were seized with

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the petitioner and therefore, the prosecution has failed to prove the charges against the petitioner beyond reasonable doubt.

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38. This Court finds that the aforesaid aspects of the matter has not been properly considered by the courts and accordingly, the impugned judgements call for interference to prevent the miscarriage of justice.

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39. As a cumulative effect of the aforesaid findings, this Court is of the considered view that the learned trial court and the learned appellate court have failed to consider the aforesaid aspects of the case and the impugned judgements suffer from serious illegality and cannot be sustained in the eyes of law. Therefore, this Court is inclined to exercise its powers under revisional jurisdiction to rectify the error committed by the learned courts. Accordingly, the impugned judgments passed by the learned appellate court and the learned trial court are set aside.

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40. The bailors of the petitioner are discharged from the liability of their bail bonds.

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41. Accordingly, this Criminal Revision is allowed .

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42. The office is directed to send back the Trial Court Records of the case to the court concerned.

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43. Let a copy of this judgment be communicated to the court concerned through “FAX / mail”.

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(Anubha Rawat Choudhary, J.)

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Rakesh/Binit

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Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment dated 16.08.2016 by the learned Sessions Judge, Garhwa in Criminal Appeal No. 13 of 2014 upholding the petitioner's conviction under Section 25(1-B)a of Arms Act and Section 120(B)(2) of IPC and modifying the sentences to the period already undergone.¶12
Sessions Judge, Garhwa (learned appellate court) · 16.08.2016
Prior proceeding
Formal F.I.R. registered as Garhwa P.S. Case No.296 of 2011 dated 22.08.2011 under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act against the petitioner, Police No.811 Rajesh Kumar and Shakil Ahmad @ Sonu Ansari, on the self-statement of S.I. Lakhan Ram.¶34
Prior proceeding
Petitioner, not arrested at the spot or soon after the seizure made on 22.08.2011, surrendered in court on 16.07.2012 (as noted in the trial court's findings).¶66
Prior proceeding
Supplementary Charge-sheet No.370/2012 dated 21.09.2012 submitted against the petitioner under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act; cognizance taken on 21.09.2012.¶38
Prior proceeding
On 10.01.2013, charges under Section 120(B) of IPC and Sections 25(1-B)a, 26, 35 of the Arms Act were framed against the petitioner, who pleaded not guilty and claimed to be tried.¶39
Prior proceeding
Learned Chief Judicial Magistrate, Garhwa, by judgment dated 13.03.2014 in G.R. Case No. 1139 of 2011 (Trial No.30 of 2014) arising out of Garhwa P.S. Case No.296 of 2011, convicted the petitioner for the offence under Section 25(1-B)a of the Arms Act.¶13
Prior proceeding
The same trial judgment convicted the petitioner and co-accused Rajesh Kumar and Shakil Ahmad @ Sonu Ansari under Section 120(B)(2) of IPC.¶13
Prior proceeding
Trial court acquitted co-accused Rajesh Kumar and Shakil Ahmad @ Sonu Ansari from the charge under Section 25(1-B)a of Arms Act.¶13
Prior proceeding
Trial court acquitted all three accused persons including the petitioner from the charges under Sections 26 and 35 of Arms Act.¶13

Brajesh Kumar Singh v. The State Of Jharkhand

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Brajesh Kumar Singh v. The State Of Jharkhand

Case brief

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