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Judgment
Heard Mr. D.K. Prasad, the learned counsel appearing on behalf of the petitioner.
Heard Mr. Tarun Kumar, the learned A.P.P. appearing on behalf of the Opposite Party-State.
The learned trial court vide Judgment of conviction and the order of sentence dated 17.07.2009 passed by the learned Judicial Magistrate, 1st Class,
Ranchi in G.R. No. 619 of 2005 / T.R. No.922 of 2009 (arising out of Mandar P.S. Case No.11/2005 dated 28.02.2005) had convicted the petitioner
under Sections 25(1-b)a/26(3) of the Arms Act and had sentenced him to undergo Rigorous Imprisonment for 02 years and fine of Rs.2,000/- for the
offence under Section 25(1-b)a of the Arms Act and in default in payment of fine, to undergo additional Rigorous Imprisonment for one month and
had further sentenced him to undergo Rigorous Imprisonment for 02 years and fine of Rs.1,000/- for the offence under Section 26(3) of the Arms Act
and in default in payment of fine, to undergo additional Rigorous Imprisonment for 15 days and directed that both the sentences shall run concurrently
and the period undergone in jail custody during trial shall be set off.
Being aggrieved by and dissatisfied with the Judgment of conviction and the order of sentence passed by the learned trial court, the petitioner
preferred Criminal Appeal No. 139/2009 in which the learned appellate court, vide Judgment of conviction and sentence dated 17.02.2012 passed by
the learned Sessions Judge-IX, Ranchi, affirmed the conviction of the petitioner under Section 25(1-b)a of the Arms Act and altered his conviction
under Section 26(3) of the Arms Act to Section 26(1) of the Arms Act.
The learned appellate court reduced the sentence of the petitioner for the offence under Section 25(1-b)a of the Arms Act to Rigorous
Imprisonment for 01 year and fine of Rs.500/- and in default in payment of fine, to undergo Simple Imprisonment for 15 days and sentenced him to
undergo Rigorous Imprisonment for 01 year and fine of Rs.500/- for the offence under Section 26(1) of the Arms Act and in default in payment of
fine, to undergo Simple Imprisonment for 15 days and directed that both the sentences shall run concurrently and the period undergone in jail custody
during trial shall be set off. The criminal appeal was partly allowed by altering conviction of the petitioner under Section 26(3) of the Arms Act to
Section 26(1) of the Arms Act and also by modifying the sentence.
Submissions on behalf of the petitioner
Learned counsel appearing on behalf of the petitioner submitted that the main point involved in the present case is that the recovery of the articles
exhibited before the learned trial court as material exhibits and their seizure from the possession of the petitioner, have not been proved. He submitted
that apart from the aforesaid point, there are material contradictions in the evidence of the various witnesses particularly in connection with the time of
the incident. He further submitted that the independent seizure list witnesses of the case have not been examined. Learned counsel referring to the
evidence of P.W.-1, who was a member of the raiding party, submitted that P.W.-1 has stated that the arrest had taken place at 10.30, but the arms
were not sealed at the place of occurrence. So far as P.W.-2 is concerned, he was also a member of the raiding party and has stated that incident
was after 01.30 and the seized arms were neither sealed at the time of seizure, nor any identification mark was made on the seized arms. P.W.-3 was
also a member of the raiding party and he has stated that the time of occurrence is after 12 noon. This witness also stated that there was neither and
identification mark on the seized pistol, nor it was sealed. P.W.-4 is the Investigating Officer of the case and has stated that he received the fire arms
in a sealed condition, though he did not mention it in the diary. P.W.-5 is the Informant of the case and was a member of the raiding party and he had
prepared the seizure list and exhibited the seizure list as Exhibit-4. This witness also stated that neither any identification mark was given on the seized
fire-arms, nor the same were sealed at the place of occurrence and the same were kept in the same condition in Malkhana which was sent for
examination. P.W.-6 is Surendra Kumar who deposed that the seized articles i.e. Material Exhibits-I and II were produced by him in the court on the
direction of the Officer-in-charge, Mandar P.S. and on the country-made pistol, the case number and Malkhana Register No.6 of 2005 are mentioned.
He further deposed that in the cartridge, Mandar P.S. Case No.11 of 2005 is mentioned which was marked as Exhibit-II. This witness in his cross-
examination stated that case number on the pistol is not legible and a paper is pasted on the cartridge, but the same is in unsealed condition.
Learned counsel for the petitioner submitted that there are not only contradictions in connection with the time of the incident, but also the seizure of
the articles produced in the court, inasmuch as, the fire arms were neither sealed, nor marked at the place of occurrence and the Investigating Officer
of the case had received the fire arms in sealed conditions.
Learned counsel further submitted that the aforesaid aspects of the matter have not been properly considered by the learned courts below and
accordingly, the petitioner is entitled to benefit of doubt. He submitted that non-examination of the seizure list witnesses before the learned court
below, who are certainly material witnesses, has seriously prejudiced the case of the petitioner. He also submitted that the R.S.M. who examined the
seized fire-arms with regard to their effectiveness has also not been examined.
Learned counsel relied upon the judgments passed by the Hon’ble Supreme Court in the cases of Jasbir Singh Vs. State of Punjab (AIR 1998
SC 1660) and Sahib Singh Vs. State of Punjab (1997 Cr.L.J. 2978) and submitted that as the prosecution has failed to establish the seizure of the fire-
arms from the possession of the petitioner, the petitioner is entitled to benefit of doubt and this revision is fit to be allowed.
Submissions on behalf of the Opposite Party-State
The learned A.P.P. appearing on behalf of the Opposite Party-State, on the other hand, opposed the submissions made on behalf of the petitioner
and submitted that there are concurrent findings of facts recorded by the learned courts below, which do not call for any interference by this Court in
revisional jurisdiction. He submitted that the contradictions in connection with the time of the occurrence has duly been considered by the learned
courts below while deciding the case and cannot be re-appreciated in revisional jurisdiction.
However, during the course of arguments, it was not disputed that all the witnesses are police officials and the seizure list witnesses have not been
examined and the members of the raiding party, who were examined as witnesses, have stated that the fire-arms seized from the possession of the
petitioner had neither any identification mark, nor they were sealed at the place of occurrence and even during the trial, no identification mark as such
was seen in the material exhibits.
Findings of this Court
After hearing the learned counsel for the parties and going through the judgments and the lower court records of the case, this Court finds that the
prosecution case is based on the self-statement of S.I. Rajesh Mandal, O/c, Mandar P.S. recorded on 28.02.2005 near Mandar Bazartanr alleging
inter-alia that on 28.02.2005 at 10.00 A.M., the Informant received a secret information regarding suspicious movement of one person with illegal
arms in the Mandar Bazartanr. The Informant entered a Sanha and he alongwith Police 381 Birsu Bhagat, Police 636 Nagendra Kumar and
Chowkidar Ayub Ansari proceeded from the police station and when they reached Mandar Bazartanr at 10.30 A.M., the petitioner started to flee on
seeing the police. With help of other police personnel, he was apprehended and thereafter, on search of the person of the petitioner in presence of two
independent witnesses namely, Sahdeo Lohra and Bablu Gope, one loaded country-made pistol was recovered from the left side of the waist of the
petitioner and the cartridge was marked as 8 MM-K.F.-91. On demand, the petitioner neither produced any valid paper for the arms, nor gave any
satisfactory reply and accordingly, a seizure list of the country-made pistol and the cartridge was prepared in presence of the aforesaid two witnesses
in which they put their signatures with their own volition.
On the basis of the self-statement, a formal F.I.R was registered as Mandar P.S. Case No.11/2005 dated 28.02.2005 under Sections 25(1-b)a/26
of the Arms Act against the petitioner. After completion of investigation, the charge-sheet was submitted under Sections 25(1-b) a/26 of the Arms
Act against the petitioner. On 28-04-2005, cognizance of the offences under Sections 25(1-b)a/26 of the Arms Act was taken against the petitioner.
On 14-06-2005, the charges under Sections 25(1-b)a and 26 of the Arms Act were framed against the petitioner which were read over and
explained to him in Hindi to which he pleaded not guilty and claimed to be tried.
In course of trial, the prosecution examined altogether 06 witnesses to prove its case. P.W.-1 is Constable Nagendra Kumar who was a member
of the raiding party, P.W.-2 is Chowkidar Md. Ayub Ansari who was also member of the raiding party, P.W.-3 is Constable 533 Masih Prakash Kujur
who was also a member of the raiding party, PW-4 is A.S.I. Janak Oraon who is the Investigating Officer of the case, P.W.-5 is Rajesh Mandal who
is the Informant of the case, P.W.-6 is Surendra Kumar who is a formal witness who produced the seized country-made pistol and the cartridge
during trial.
The prosecution exhibited the Examination Report of the seized arms submitted by the Sergeant Major as Exhibit-1, sanction order accorded by
the District Magistrate, Ranchi as Exhibit-2, self-statement of the Informant as Exhibit-3 and the seizure list as Exhibit-4. The prosecution also
exhibited the seized country-made pistol and the cartridge as Material Exhibits-I and II respectively.
P.W.-1 was a member of the raiding party. He deposed that the occurrence is of 28.02.2005 at about 10.30 A.M. and he had accompanied the
Officer-in-charge namely, Rajesh Mandal (P.W.-5) to Bazartanr, Mandar where on seeing them, the petitioner started to flee away, but he was
apprehended after chase and on search of his person, one country-made pistol was recovered from his waist which was seized and a seizure list was
prepared. He identified the petitioner in court. In his cross-examination, he said that they had proceeded at about 10.10 or 10.15 A.M. and had
reached at the place of occurrence at about 10.30 A.M. He admitted that the seized articles were not sealed at the place of occurrence. The cartridge
was removed from the pistol and was brought to the police station. He also admitted that the seized pistol has not been produced before him.
P.W.-2 was also a member of the raiding party. He deposed that the occurrence is of 3-4 years ago and he had accompanied the Officer-in-
charge to the weekly market where one person started to flee away, but he was apprehended after chase and thereafter, on search of his person, a
country-made pistol was recovered from his waist, but he did not produce any paper and a seizure list was prepared and the signature of the petitioner
was taken on it. On the point of identification, he said that the accused present in court resembles with the apprehended accused and he is not able to
identify him accurately as considerable period has passed. In his cross- examination, he admitted that he cannot say whether the pistol was loaded or
not and he had only seen the pistol. He further admitted that cloth was wrapped over the pistol, but it was not marked. He admitted that the pistol has
not been produced in court and he cannot say with certainty that the accused present in court was apprehended.
P.W.-3 was also a member of the raiding party. He deposed that the occurrence is of the weekly market day in the year 2005 and he had also
gone alongwith Birsu Oraon, Nagendra Kumar, Rajesh Mandal and Chowkidar Ayub Ansari to the market where one person started to flee away on
seeing them, but he was apprehended after chase and the person of the petitioner was searched in presence of the villagers and one loaded country-
made pistol was recovered from his waist which was seized and a seizure list was prepared, but no paper for the pistol was produced. He identified
the petitioner in court. In his cross-examination, he admitted that they had gone to the market after 12-01 O’clock and further admitted that no
identification mark was made on the pistol in his presence and it was not sealed at the place of occurrence.
P.W.-4 is the Investigating Officer of the case. He deposed that on 28.02.2005, he was posted at Mandar P.S. and on the same day, the Officer-
in-charge had given him the charge of investigation of the case. He had recorded the re-statement of the Informant and he had also recorded the
statements of Constable Masih Kujur, Birsu Oraon, Nagendra Kumar Singh and Chowkidar Ayub Ansari during investigation of the case and had also
inspected the place of occurrence alongwith Ayub Ansari and he stated the details regarding the place of occurrence. On 02.03.2005, he had
deposited the seized arms for verification before the Sergeant Major namely, Vijay Kumar Chowdhary who, after verification, submitted his report
stating that the cartridge is live and the pistol is effective. He exhibited the Examination Report of the arms as Exhibit-1. He also exhibited the sanction
order for prosecution granted by the Deputy Commissioner namely, Praveen Kumar as Exhibit-2. Thereafter, he had submitted the charge-sheet
against the petitioner under Sections 25(1-b)a/26(3) of the Arms Act. He proved the self-statement of the Informant as Exhibit-3. In his cross-
examination, he admitted that in course of investigation he had received the fire-arms in sealed condition in one seal, but he had not mentioned the
same in the diary and further admitted that he had seen the fire-arms in course of investigation, but he had not mentioned the same in the diary. He
further admitted that the pistol was not produced before him in the court.
P.W.-5 is the Informant of the case. He deposed that the occurrence is of 28.02.2005 at 10.30 A.M. and on the basis of secret information, he
had proceeded from the police station alongwith Birsu Bhagat, Nagendra Kumar and local Chowkidar Ayub Ansari and when they reached Bazartanr,
one person started fleeing away on seeing them who was apprehended with help of the police force and thereafter, in presence of two independent
witnesses namely, Sahdeo Lohra and Bablu Gope, the person of the petitioner was searched and a loaded country- made pistol was recovered from
his waist and he prepared a seizure list at the place of occurrence and gave a copy of the same to the petitioner. He exhibited the seizure list as
Exhibit-4. He further stated that the seized fire-arms are in effective condition. He identified his self-statement and the endorsement over it which has
already been exhibited. He claimed to identify the petitioner. In his cross-examination, he admitted that no identification mark was made on the fire-
arms, nor the same were sealed at the place of occurrence and the same were kept in the Malkhana in the same condition from where their
examination was made by the investigating officer.
P.W.-6 deposed that as per the direction of the Officer-in-charge, Mandar P.S., he brought the arms seized in Mandar P.S. Case No.11/2005 in
the court which are one country-made pistol on which P.S. case No. and M.R. No. 6/05 are mentioned. He exhibited the country-made pistol as
Material Exhibit-1. He further exhibited one live cartridge as Material Exhibit-II on which Mandar P.S. Case No. 11/05 is mentioned. In his cross-
examination, he admitted that he cannot say as to from whose possession, the arms were seized. He further admitted that he did not read the case
number mentioned on the pistol and paper is pasted on the cartridge. He also admitted that the arms are not sealed and except P.S. Case No., no
other identification mark is present and he also cannot say as to whose signature it is as he was not present at the police station at that time.
On 23.06.2009, the statements of the petitioner under Section 313 of Cr.P.C. were recorded wherein he denied the incriminating evidences put to
him and claimed to be innocent. The petitioner did not adduce any oral or documentary evidence in his defence.
The learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution and also the arguments advanced on
behalf of the parties and recorded its findings in Para-18 that the P.Ws.-1, 4 and 5 have supported the occurrence, date and time stated in the self-
statement (Exhibit-3) and P.Ws.-2 and 3 have not stated about the date of occurrence, but they have supported the period of occurrence from the
date of recording their evidences. P.W.-5 deposed that the occurrence is of 28.02.2005 at about 10.30 A.M. and when at 10.00 A.M., secret
information was received that one person is roaming under suspicious condition in the Mandar Bazartanr, a constituted patrolling party reached at the
place of occurrence and on seeing the police party, the petitioner started fleeing away, but after chase, he was apprehended and on search of his
person in presence of the independent witnesses namely, Sahdeo Lohra and Bablu Gope, one loaded country-made pistol was recovered from his
waist which was seized and a seizure list was prepared and a copy of the same was given to him and from perusal of the Seizure List (Exhibit-4), it is
apparent that on 28.02.2005, one loaded country-made pistol and one cartridge were recovered from the possession of the petitioner at Mandar
Bazartanr. The learned trial court further recorded that P.Ws.-1, 2 and 3 have fully supported the evidence of the Informant. The loaded pistol was
recovered in presence of P.W.-1 also. P.W.-3 has supported the occurrence stated in the self-statement (Exhibit-3) by P.W.-5. P.W.-4 is the
Investigating Officer of the case and he has established the place of occurrence. From perusal of the report dated 02.03.2005 submitted to the learned
C.J.M., Ranchi and the report dated 17.03.2005 submitted by the Sergeant Major (Exhibit-1), it transpires that seized fire-arm was effective and the
cartridge was found in live condition. It is clear from the sanction for prosecution that the seized pistol and the cartridge have been said to be
dangerous to human life. P.W.-5 who is a police officer has also stated the seized fire-arms to be in effective condition. From perusal of the evidence
of P.Ws.-4 and 5 and the Exhibits-1 and 2, it is established that the seized fire- arms were effective and therefore, on the basis of non- examination of
the Sergeant Major only, the prosecution case cannot be said to be doubtful. P.W.-6 produced the seized fire- arms (Material Exhibits-I and II) in
court and he stated that Malkhana Register No. 6/05 and P.S. Case No. are mentioned on Exhibit-I and P.S. Case No. is also mentioned on Exhibit-1
which establish that both the material exhibits were recovered from the possession of the petitioner in this case on the date of occurrence and from
perusal of entire record of the case, it transpires that the petitioner in his defence has not produced any valid licence issued by competent authority
under Section 3 of the Arms Act in court. The learned trial court further recorded that in the prevailing atmosphere of today, the independent
witnesses feel themselves insecure in appearing in the court in the cases of present nature and therefore, in absence of independent witnesses, the
evidence of police witnesses cannot be taken to be doubtful. The petitioner has failed to establish in his defence that the police witnesses had any
previous enmity with him due to which they adduced evidence against him. The learned trial court cited two Judgments passed by the Hon’ble
Supreme Court in the cases of Aher Raja Khima â€"Vs- State of Saurashtra [AIR 1956 SC 217] and State of Gujarat â€"Vs- Raghunath Vamanrao
[1985 SC 1092] wherein the Hon’ble Supreme Court has laid down the ratio that “The presumption that a person acts honestly applies as much
in favour of a police officer as or other persons and it is not a judicial approach to distrust and suspect him without good ground for usâ€. The learned
trial court concluded that the prosecution has been able to fully establish the charges under Sections 25(1-b)a/26(3) of the Arms Act against the
petitioner beyond reasonable doubts.
The learned appellate court also considered the oral and documentary evidences adduced on behalf of the prosecution and the arguments
advanced on behalf of the parties and rejected the contentions advanced on behalf of the petitioner with regard to the effect of non-examination of the
two seizure list witnesses on the prosecution case and recorded its findings in Para-9 which reads as under:
“9. ……………………….. ………………
In course of argument, the learned defence counsel has not produced any law before me to why the decisions on which the learned Magistrate placed
reliance for rejecting the contention of learned counsel of defence on the ground of non-examination of two independent witnesses (seizure list
witnesses) is not applicable in the facts and circumstances of this case.â€
The learned appellate court, after referring and quoting the provisions under Section 51 of Cr.P.C. related to the search of an arrested person and
Section 100 of Cr.P.C. relating to allowing search of closed place by the resident of the closed place, recorded its findings in Para-11 which reads as
under:
“11. Mere plain reading of these two sections shows that if a search is made u/s 51 Cr.P.C., then there is no need to call upon two or more
independent and respectable inhabitants of the locality as provided under Section 100(4) Cr.P.C.. Here in the case in hand, it is admitted fact that the
said search was made by the police officer in the open place and not the closed place as required for the application of Section 100 Cr.P.C. and so, in
my opinion, even if the seizure list witnesses has not come to support the prosecution version that will not affect the prosecution case and the
aforesaid distinction has also been made by the Hon’ble Apex Court in Para-8 of judgment reported in AIR 1956 SC 217.â€
The learned appellate court, with regard to sealing/non- sealing of the seized fire-arms at the place of occurrence, recorded its findings and opinion
in Para-15 which reads as under:
“15. Learned lawyer appearing for the defence also raised this point that the seized articles were not sealed and there is contradictory evidence on
this point regarding the seal of the seized articles, but learned lawyer failed to produce any law to show me that it is essential to seal the seized articles
at the place of occurrence. For the sake of argument, even if it is presumed that the seized articles were not sealed at the place of occurrence where
it was recovered, in my opinion, that will not make the case of prosecution doubtful, if the prosecution has succeeded in establishing the facts that the
seized articles have been recovered from the possession of the appellant. So, I find no force in the contention raised on behalf of the learned counsel
appearing for the appellant on this point. â€
This Court finds that so far as independent witnesses to the seizure are concerned, P.W.-5, the Informant of the case, has stated that the raiding
party apprehended the petitioner and thereafter, in presence of two independent witnesses namely, Sahdeo Lohara and Bablu Gope, the person of the
petitioner was searched and a loaded country-made pistol was recovered from his waist and accordingly, a seizure list was prepared at the place of
occurrence. Admittedly, the seizure list witnesses have not been examined in the present case. The P.W-1 has stated that the seizure witnesses were
called after seizure and he has not named the seizure witnesses. The P.Ws.-2 and 3 have stated that the seizure was made in presence of villagers,
but have not stated anything about the seizure witnesses much less their names. So far as P.W-4, the investigating officer of the case is concerned, he
has stated that he had recorded the re- statement of the Informant (P.W.-5) and had also recorded the statements of Constable Masih Kujur (P.W.-
3), Birsu Oraon (not examined as witness in the court), Nagendra Kumar Singh (P.W.-1) and Chowkidar Ayub Ansari (P.W.-2) during investigation
of the case, but he has not stated anything about examination of the seizure witnesses. Upon perusal of the charge-sheet, this Court finds that the
names of the seizure witnesses are not even cited in the list of charge-sheeted witnesses. Thus, the seizure witnesses were neither cited in the
charge-sheet, nor examined as witnesses before the learned trial court. Further, apart from the informant of the case, no other witness has mentioned
about the seizure witnesses except P.W.- 1 who has stated that the seizure witnesses were called after seizure. This Court finds that so far as the
seizure of the arms in presence of independent witnesses is concerned, the evidence of the informant in this regard has not been corroborated by the
other prosecution witnesses.
On the point of identification of the fire arms and sealing/non-sealing of the seized fire-arms at the place of occurrence, this Court finds that
admittedly, P.Ws.- 1, 2 and 3 were also members of the raiding party alongwith the Informant (P.W.-5). P.W.-1, in his cross-examination, admitted
that the seized articles were not sealed at the place of occurrence; P.W.-2, in his cross-examination, admitted that cloth was wrapped over the pistol,
but it was not marked; P.W.-3, in his cross-examination, also admitted that no identification mark was made on the pistol in his presence and it was not
sealed at the place of occurrence; P.W-5 (informant of the case ) has admitted in his cross-examination that neither any identification mark was made
on the fire-arms, nor the same were sealed at the place of occurrence and the same were kept in the Malkhana in the same condition from where
their examination was made by the investigating officer. P.W.-4 (Investigating Officer), in his cross- examination, stated that in course of investigation,
he had received the fire-arms in sealed condition in one seal, and admitted that he had not mentioned the same in the diary and further admitted that he
had seen the fire-arms in course of investigation, but he had not mentioned the same in the diary.
P.Ws.-1, 2 and 4 specifically admitted that the seized pistol has not been produced before them in the court during trial. In fact, the seized arms
were produced before the court at the end by the last witness, P.W.-6 who is a formal witness. P.W.-6 has exhibited the country-made pistol as
Material Exhibit-1 and one live cartridge as Material Exhibit-II and in his cross-examination, he admitted that he did not read the case number
mentioned on the pistol and paper was pasted on the cartridge and also admitted that the arms are not sealed and except P.S. Case No., no other
identification mark is present.
This Court finds that the learned trial court has not recorded any finding with regard to the effect of non-sealing of the seized fire-arms at the
place of occurrence and the appellate court has held that it is not essential to seal the seized articles at the place of occurrence and that even if it is
presumed that the seized articles were not sealed at the place of occurrence where it was recovered, that will not make the case of prosecution
doubtful, if the prosecution has succeeded in establishing the facts that the seized articles have been recovered from the possession of the petitioner.
In this regard, it would be appropriate to refer the Judgment passed by the Hon’ble Supreme Court in the case of Sahib Singh â€"Vs- State of
Punjab (1997 Cr.L.J. 2978) wherein the Hon’ble Supreme Court in Para-7 observed as under:
“7. …………………………………………. ………..
We next find from the record that the arms and ammunitions allegedly recovered from the appellant and seized were not packeted and sealed. In
Amarjit Singh Vs. State of Punjab 1995 Supp. (3) SCC 217 this Court has observed that non- sealing of the revolver at the spot is a serious infirmity
because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with
whom the revolver was after its seizure by P.W.3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also
weakens the prosecution case. For all these infirmities, we are of the view that the appellant is entitled to the benefit of reasonable doubt.â€
A similar view has been taken by the Hon’ble Supreme Court in the Judgment decided on 19.02.1998 in Criminal Appeal No. 1086 of 1997 in
case of Jasbir Singh Vs. State of Punjab (1998) 8 SCC 525.
This Court is of the considered view that non-sealing of the fire-arms i.e. country-made pistol and cartridge at the place of occurrence is a serious
infirmity on the part of the prosecution when seen with the circumstance that the seized articles did not even have any identification mark. Moreover,
in the present case the so-called seized arms were not even produced before the trial court at the time of examination of P.Ws.-1 to 5 so as to
establish the identity of the seized articles. Admittedly, the so-called seized articles were exhibited subsequently by a formal witness, P.W-6. This is
coupled with the fact that names of the seizure witnesses were neither cited as witnesses in the charge-sheet, nor they were examined as witness
during the trial. There is an apparent missing link between the seized articles and the articles which were sent for examination by the Investigating
Officer to the Sergeant Major on account of non-sealing and non-marking of the seized articles with any identification mark at the place of
occurrence. The identity of the weapon and cartridge produced before the court could not be established by the prosecution as they did not even have
any identification mark on them and after seizing the same, the police had not thought it fit to wrap them and apply a seal over them. In the aforesaid
background, the identity of the incriminating articles was not established by the prosecution beyond reasonable doubt and the prosecution cannot be
said to have proved the charges against the petitioner beyond all reasonable doubts. This aspect of the matter has been overlooked by both the learned
courts below and accordingly, the impugned judgements call for interference in revisional jurisdiction to prevent miscarriage of justice to the petitioner.
Accordingly, the impugned Judgment of conviction and sentence dated 17.02.2012 passed by the learned Sessions Judge-IX, Ranchi in Criminal
Appeal No. 139/2009 as well as the impugned Judgment of conviction and the order of sentence dated 17.07.2009 passed by the learned Judicial
Magistrate, 1st Class, Ranchi in G.R. No. 619 of 2005 / T.R. No.922 of 2009 (arising out of Mandar P.S. Case No.11/2005 dated 28.02.2005) are
hereby set aside.
Consequently, the petitioner is acquitted from the charges giving the benefit of reasonable doubt to him and the petitioner is discharged from the
liability of his bail bond. Accordingly, this criminal revision petition is hereby allowed.
The office is directed to send back the Lower Court Records to the court concerned.
Let this judgment be communicated to the court concerned through FAX / mail.