Ganesh Singh vs State of Jharkhand

Pradeep Kumar, J.—The jail appeal was argued by Sri Rakesh Kumar Sinha was appointed as amicus curie by the Court earlier.

The appeal is directed against the judgment of conviction dated 17th July, 2001 and order of sentence dated 19th July, 2001 passed by Sri Kedar Nath Sah, 8th Additional District & Sessions Judge, Palamau, Daltonganj in Sessions Trial No. 332 of 1988, by which judgment he found the appellant, Ganesh Singh guilty under Sections 399/402 of the Indian Penal Code and sentenced him to undergo R.I. for 5 years u/s 399 of the Indian Penal Code. However, no separate sentence was passed u/s 402 of the Indian Penal Code, but the same judgment he acquitted the other accused persons, namely, Anil Ram, Gulten Bhuian and Rajeshwar Mistri.

It is submitted by the learned Counsel for the appellant that the police on search of the Bus had arrested five accused persons and two of the accused had run away from the bus and from the possession of one Prithwi Raj Singh one Time Star wrist watch was recovered and from the possession of this accused-appellant, Ganesh Singh a country made pistol loaded with 12 bore cartridges was recovered. All the other accused persons were acquitted only because no recovery was made from them and there was no evidence of independent witnesses to prove that they had made any preparation to commit dacoity in the running bus. Since the prosecution has failed to prove the seizure of revolver from the possession of this accused-appellant, Ganesh Singh and as such his conviction by the trial court only because revolver was recovered from him is erroneous bad in law and fit to be set aside.

On the other hand, learned Counsel for the State has submitted that it will appear from the discussion of evidences in paras 20 and 22 of the judgment that since the recovery of loaded pistol was proved by the evidence of P.W.8, Arbind Kumar Poddar, who identified his signature, which is marked as Ext. 4 and 4/1 and as such the trial court rightly convicted this accused-appellant, Ganesh Singh and acquitted the other, accused persons since there was no recovery from them.

After hearing the parties and going through the record, I find that the prosecution case was started on the basis of a first information report recorded by the Officer-in-Charge, Saddar Police Station-P.W.2, Tarini Pd. Yadav stating therein that on 17.2.1987 at about 13:15 hrs. when he along with his police officers all were busy in doing some Govt. work in the said police station. Suddenly, a passengers bus namely, Jai Bajrang bearing No. BHC 115, which ply between Sasaram to Ranchi came and stopped within thana premises. The driver and conductor of the Bus shouted that a number of dacoits have boarded the Bus near Redma and they are making preparation to commit dacoity. Then as per the instruction of officer-in-charge the police officers and constables started searching the bus. But unfortunately, two of the miscreants got down from the back gate of the Bus and ran towards, the west. But they were chased by the S.I. Kameshwar Singh and by other police officers and constable. Thereafter, they entered into the Bus and started searching the miscreants and with the help of driver and the conductor of the Bus they caught hold this accused-appellant, Ganesh Singh, who was sitting in the cabine and from his possession a country made pistol loaded with 12 bore cartridges was recovered and other accused persons, namely, Anil Ram, Gulten Bhuian and Rajeshwar Mistri were also arrested.

On the basis of a written report given by the Officer-in-charge a case under Sections 399/402 of the Indian Penal Code was registered against all the accused persons as also a separate case u/s 25(a)/35 of the Arms Act and after investigation the police submitted charge-sheet u/s 399/402 of the Indian Penal Code. Since, the case was exclusively triable by a court of sessions, the learned Chief Judicial Magistrate after taking cognizance of the case committed the case to the court of Sessions. Subsequently the case was transferred to the court of 8th Additional Sessions Judge, Palamau at Daltonganj, who tried the case and found the appellant guilty as aforesaid.

From perusal of the judgment, it appears that after discussing the evidence of all the witnesses i.e. P.W. 1, S.I., Chandrika Prasad Singh, P.W.2, Tarini Pratad Yadav-informant, the Officer-in-charge Sadar P.S. Daltonganj, P.W.3, S.I. Kameshwar Singh, P.W.4, S.I. Satyadeo Singh; P.W.5, A.S.I. Tapeshwar Prasad Yadav, P.W.6, Inspector Aman Kongari, P.W.7, Brahama Kuar, I.O. Of the case and P.W.8, Arbind Kumar Podar, the seizure witness. The Court found in para 22 of the judgment, prima, facie it appears that tins is a case for making preparation to commit dacoity, has not been proved and the recovery of Time Star wrist watch from the possession of Prithwi Raj Singh was not looted from the Bus. Apart from this he found that the accused Prithwi Raj Singh had absconded and there was no recovery from another accused persons and hence he acquitted all the accused persons, it also appears that the learned Sessions Judge found in para 20 of its judgment that since the independent witness-P.W.8 although denied any recovery in his presence, but proved his signature on the seizure-list, which is as Exts. 4 and 4/1. Hence he convicted only this, accused-appellant, Ganesh Singh.

As discussed in pars 22 and 24 of its judgment that since a country made pistol with 12 bore cartridges was recovered from the possession ''of this accused-appellant, Ganesh Singh, hence the learned sessions judge convicted him under Sections 399 and 402 of the Indian Penal Code. After going through the evidences, I find that P.W.8, Arbind Kumar Poddar the independent witness stated, in his evidence, that nothing was recovered in his presence. However, he has proved his signature on seizure-list, which is as Ext. 4 and 4/1. It appears from the possession of this accused-appellant the police recovered only a cream coloured shawl. It also appears that a Time Slate wrist watch was recovered from the possession of Prithwi Raj Singh, so I find that there is no recovery of a country made pistol from the possession of this accused-appellant, Ganesh Singh and in absence of any seizure-list or any material being presented by the Investigating Officer in Court and as such his conviction only on the statement of police witnesses, cannot be accepted as proved beyond reasonable doubt and hence the accused-appellant, Ganesh Singh is also acquitted from the charges u/s 27 of the Arms Act and naturally since, there was no seizure, which could have been proved by the prosecution in absence of any seizure-list available on record, therefore, his conviction u/s 399/402 of the Indian Penal Code is also bad in law. This accused-appellant''s case is that in absence of any seizure of weapon his case become similar to that of other accused, namely, Anil Ram, Gulten Bhuian and Rajeshwar Mistri and he is also given benefit, of doubt in absence of any seizure-list of weapon and he is also acquitted from the charges levelled against him.

The judgment of conviction dated 17th July, 2001 and order of sentence dated 19th July, 2001 passed by Sri Kedar Nath Sah, 8th Additional District & Sessions Judge, Palamau, Daltonganj in Sessions Trial No. 332 of 1988 against this accused-appellant is set aside and this accused-appellant, Ganesh Singh is acquitted.

The appeal is allowed.

It appears that the appeal was filed from jail and he has remained in custody throughout. If he has not been released as yet the learned trial court is directed to verify the same and issue release order immediately.