LAKHA SINGH vs STATE OF JHARKHAND

Heard the parties.Â

This appeal has been preferred by the appellant against the Judgment of conviction dated 24.11.2005 and order of sentence dated 25.11.2005

passed by the learned Additional Sessions Judge, F.T.C.-VI, Hazaribagh in Sessions Trial No. 537 of 1997 whereby and whereunder, the appellant

Lakha Singh has been held guilty for the offence punishable under Section 25(1-B) (a) of the Arms Act and sentenced to undergo rigorous

imprisonment for one year with fine. He was also convicted for the offence punishable under Section 26(1) of the Arms Act and was sentenced to

undergo rigorous imprisonment for one year with fine and also convicted for the offence punishable under Section 27(1) of the Arms Act and was

sentenced to undergo rigorous imprisonment for five years with fine and all the sentences were directed to run concurrently. Â

The case of the prosecution in short is that on 22nd July, 1996 at about 17.15 hours, the accused appellant, who was involved in several criminal

cases, on seeing the police party, opened fire at the police jeep. The informant, Madan Prasad Singh, A.S.I. of police, who at the relevant time was

posted at Bhurkunda police station, Hazaribagh, returned the fire at the accused from his service revolver by which the accused fell down. The

accused was apprehended by the police and during search, a country made pistol, empty cartridges of .303 bore and a live cartridge of the same bore

was also seized from his possession. Â

On the basis of the fardbeyan of the informant, the police registered Patratu (Bhurkunda) P.S. Case No. 135 of 1996 corresponding to G.R. No.

1252 of 1996 and took up the investigation of the case. After completion of the investigation, police submitted charge-sheet and the case was

committed to the Court of Session. Charges for the offences punishable under Section 353, 307 IPC and under Section 25(1-B) (a), 26 and 27 of the

Arms Act were framed against the accused appellant and upon the accused pleading not guilty to the charges, he was put to trial.Â

In support of its case, the prosecution has altogether examined eight witnesses and proved the following documents.Â

The signatures on the seizure list were marked as Exhibit 1 and 1/1, written report was marked as Exhibit 2, FIR report was marked as Exhibit 3,

signatures on the seizure list were marked as Exhibit 4 and 4/A and signature on the written report was marked as Exhibit 4/B. No witnesses,

however, was examined on behalf of the defence.Â

Out of the witnesses examined by the prosecution, P.W.1 Braj Nandan Prasad stated that on 22.07.1996, when he arrived near the temple he saw

the injured accused in bushes, from whom a country made revolver was recovered. He identified the accused in the court by telling that he was the

same person from whom the fire arm was recovered and empty cartridge was recovered. Seizure list was prepared and he and P.W. 2 signed upon

the same.Â

P.W.2- Parash Nath Singh also deposed that hearing the sound of fire near the bridge, he went to the place of the occurrence and saw the police

vehicle. The accused was lying there and a pistol and cartridges were recovered from the possession of the accused and they were seized by the

police. P.W.2 signed the seizure list. In the cross examination of P.W. 1 and P.W. 2, nothing was elicited to disbelieve or to discredit their

testimony.Â

P.W.3- Sabha Ram, ASI, has stated that as per the order of the officer in-charge of the police Station, he accompanied the informant and other

police personnel near the temple situated adjacent to Domuhani Bridge. The accused who was on a scooter bearing registration no. BER 4454 fired at

the police personnel. The accused on being apprehended disclosed his name. A country made pistol was recovered which was seized. He identified

the accused in the court. In his cross examination, he has stated that none of the members of the police party sustained injury.Â

P.W.4- Hawaldar Rameshwar Singh, also supported the prosecution case by stating that upon the accused firing from the pistol, the police

personnel returned the fire. The accused was arrested. There was bleeding from his feet. P.W. 1 and P.W. 2 arrived there and became the

witnesses of the seizure. In his cross examination, P.W. 4 narrated the place of occurrence. The accused opened fire with the intention to commit

murder. P.W. 4 also fired from the service revolver before the accused was apprehended. He also stated about the recovery of the fire arm and

the cartridges from the possession of the accused. P.W.4 described the place of occurrence being the barren jungle near the railway siding.  In

his cross-examination, he has stated that he has neither signed on the seized articles nor in the seizure list. P.W. 4 also searched the accused and he

was examined by the police.Â

P.W. 5- Mukesh Kumar Yadav, stated about the accused person opening fire at the police party and recovery of the fire arms from the

possession of the accused appellant. In his cross examination, P.W. 5 has stated that the fire was made at the police party from a distance of 25-30

yards.Â

P.W. 6- Hasran Mahli was tendered for cross-examination.Â

P.W.7- Birendra Kumar Singh deposed that on 22.07.1996, he received information that the accused, who was also accused in Bhurkunda OP

Case No. 131 of 1996 and 132 of 1996, was going on a scooter bearing registration no. BER 4454 by river side towards Bhurkunda. P.W. 7 along

with police personnel proceeded towards the place of occurrence. The accused opened fire at the police jeep with intention to murder the police

officers but the police officer escaped by a whisker. P.W. 7 fired two rounds of fire from his service revolver. The accused started to flee away

leaving the scooter but he fell down. The police party apprehended him. On being interrogated, the accused person disclosed his identity and on

being searched, one country made pistol with empty cartridges as well as live cartridges were recovered from his possession and the same was seized

by the police and FIR was lodged which has been marked as Exhibit 3. Investigation of the case was entrusted to P.W. 7, who prepared the seizure

list of the fire arms, cartridges and the scooter bearing registration no. BER 4454. The seizure list was proved by P.W.7. The signature of the P.W. 7

over the seizure  list has been marked as Exhibit 4. He visited the place of occurrence and described the place of occurrence. He recorded the

written statement of the informant and statement of the witnesses. The accused was referred to RMCH, Ranchi for his treatment; he got the seized

arms examined. In his crossexamination, after putting a single question to which he replied that he cannot say whether the bullet fired by him, injured

the accused or not, even though he waited for his further cross-examination, for an hour from 2.00 P.M. to 3.00 P.M. in the witness box but as

learned counsel for the accused did not turn up to cross-examine nor the accused crossed-examined the witness, P.W. 7 was discharged.Â

P.W.8 â€" Madan Prasad Singh is the informant of the case. He corroborated the averments made in the fardbeyan. He also stated that the

accused opened fire at the police party and the P.W. 7 also returned the fire in his defence. Thereafter, the accused was apprehended and he

disclosed his identity. On being searched in presence of two persons, one country made pistol, fire arms of empty cartridges and live cartridges were

recovered from his possession. In his cross-examination P.W. 8 has stated that he cannot say the boundaries of the place of occurrence. He has

also stated that pistol is different from revolver. Â

After closure of the prosecution evidence, statement under Section 313 Cr.P.C. of the accused person was recorded, regarding the circumstances

appearing in evidence against him, which he denied. But he stated that the scooter does not belong to him. Learned court below after taking into

consideration the evidence- both oral and documentary appearing against the accused persons, convicted the accused person, as already indicated

above.Â

It was submitted on behalf of the appellant that the court below failed to appreciate the evidence in the record in its proper perspective and in the

absence of the production of the fire arms, the court below ought not have convicted and sentenced the appellant. It is further submitted that ballistic

report has not been produced or proved in this case. Hence, the appellant ought to have been acquitted by giving him benefit of doubt.Â

Learned Addl. PP on the other hand, submitted that eight witnesses examined by prosecution, out of whom P.W. 7- to whom, one question has

been put, was not even cross-examined on any material part of his testimony, thereby, the entire testimony of P.W. 7 has remained unchallenged and

the same has proved the case of the prosecution beyond all reasonable doubt and thus through witnesses as well as the document proved by the

prosecution, the prosecution has proved its case beyond all reasonable doubt. Hence, it is submitted that the learned court below having rightly

convicted and sentenced the appellant, and this appeal being without any merit be dismissed.Â

Having heard learned counsels for both the parties and going through the materials in the record, I find that P.W.7 who has deposed categorically

about the recovery of fire arms and the receipt of the report of the ballistic expert about the seized fire arms, has not been cross-examined at all about

the entire material part of his deposition. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the

statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has

been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the

case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect

held as under :-

 “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards

the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that

part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been

advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a

witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by

Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of

his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the

absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed,

and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in

the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem

Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 :

(1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar

& Anr. v. State of Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589).â€​(Emphasis given by me)

Hence, deposition of P.W.7 on all the relevant material parts has remained unchallenged. Hence, in absence of the cross examination of the

P.W.7 on any material part of his examination in chief and thereby his attention being not drawn to any specific part of his evidence, the same is to be

accepted in view of the settled principle of law as mentioned above. Though other material witnesses were cross-examined at length but nothing was

elicited in their crossexamination to disbelieve or to discredit their testimony and hence, their testimony also appears to be trustworthy and reliable.Â

After going through the evidence in the record, I have no hesitation in holding that the prosecution has succeeded in establishing the fact that the

accused has in his possession, a fire arm, designed or adapted to discharge a projectile of any kind by the action of any form of energy for which the

appellant accused does not have any licence and the manner in which, the appellant was carrying the fire arms indicated an intention that such act

may not be known to a public servant being the police officer. Similarly, the evidence in the record is also sufficient to show that before being

apprehended, the accused fired from pistol and pistol was not licensed. In the case of Mithu Singh v. State of Punjab reported in AIR 2001 SC 1929

the Hon’ble Supreme Court of India regarding sufficiency of evidence to prove the charge for the offence punishable under section 27 of the

Arms Act,1959, in paragraph â€" 7 observed as under:

“7. So far as the offence under S. 27 of Arms Act is concerned, we do not find any reason to doubt the recovery of pistol from his possession

when he was apprehended on being chased by the villagers. It is true that ASI Gurcharan Singh has not been examined as he had died before the

commencement of trial. However, there is no reason to disbelieve the statement of panch witness Babusingh P.W.. 10, who is also a village panch,

deposing to the recovery of the pistol from the possession of Mithu Singh. The pistol was fired to scare away the people chasing him to apprehend

him. As the pistol is not shown to be licensed, and was also used, his conviction under S. 27 of the Arms Act cannot be found fault with.â€​

So considering the facts of the case and the evidence in record as discussed above, I have no hesitation in holding that evidence in the record is

sufficient to convict the appellant for the offence punishable under Section 25Â Â Â Â (1-B) (a), 26 (1), 27 (1) of the Arms Act. Hence, I confirm

the Judgment of conviction dated 24.11.2005 and order of sentence dated 25.11.2005 made by    the learned Additional Sessions Judge,

F.T.C.-VI, Hazaribagh in Sessions Trial No. 537 of 1997 in the impugned judgment and this appeal being without any merit is dismissed.Â

It appears from the order dated 22.02.2006 passed by a co-ordinate Bench of this Court in this appeal that though the maximum sentence was

of five years but the appellant has been in jail for more than six years and eight months, hence, if the appellant has already undergone the period of

sentence, learned court below will discharge the appellant from the liability of his bail bond.Â

Let the original Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.Â