Manik Bouri And Ors vs State Of Jharkhand

Anant Bijay Singh, J

Appellants have have preferred the instant appeal being aggrieved by the judgment of conviction dated 24.03.2004 and the order of sentence dated

25.03.2004 passed by Additional Sessions Judge-XIII, Dhanbad in Sessions Trial No.202 of 1996,whereby and where under appellants have been held

guilty under sections 399,402 and 414 of the Indian Penal Code and the have been acquitted of the charges U/s 25(i)(b)/26 and 35 of the Arms Act

and they have been sentenced to undergo R.I. for Five Years under section 399 IPC, R.I for Three Years under section 402 IPC and R.I for One

year U/s 414IPC. All the sentences will run concurrently.

It appears that the instant appeal was filed on 27.04.2004 and by order dated 07.05.2004, it was admitted to hearing and both the appellants were

directed to be released on bail during pendency of this appeal.

The matter was listed on 04.12.2018 and the Sr. Superintendent of Police, Dhanbad was directed to look into the matter regarding whereabouts of

the appellants. Further, the matter was listed on 15.01.2019 and an affidavit was filed on behalf of Sr. Superintendent of Police, Dhanbad, which

reveals that appellant no.1- Manik Bouri is alive and working in Mumbai and his family resides at Dhanbad, Anara, P.S.Para, District- Purulia ( West

Bengal), whereas his parents are living at Bengali Kothi, Near Shiv Mandir, P.S. Jharia, District Dhanbad. So far as the appellant no.2- Samir Bouri is

concerned, he is presently living with his family at Dhanbad, Anara, P.S. Para, District-Purulia(West Bengal) and working in Tata Company. So the

case was heard on merit.

The prosecution case, as per FIR, in brief, is that on 06.02.1996 the informant- Jitendra Kumar (P.W.4),, who happened to be Sub-Inspector,

Sudamdih( Jorapokhar) got secret information that some miscreants are planning for dacoity. The informant alongwith other police personnel raided

the house of Maraku Munda situated at Mohulbani, Jorapokhar, Dhanbad. On search of the house, the police recovered one country made pistol and

four live cartridges with charger from the possession of Manik Bouri, five live cartridges with charger and one HMT Wrist Watch and Khukhri from

the possession of accused Madhu Bouri, four live cartridges with charger from the possession of accused Ram Kripal Singh along with one dagger

and one HMT writ watch. The police also recovered a razor from the possession of Samir Bouri. A seizure list was also prepared in presence o two

independent witnesses. The police also seized Mari (country made liquor) and the earthen pot, Match box, Bidi, Cigarette and a candle in lit condition.

The informant on his self statement, registered a case being Jorapokhar ( Sudamdih) P.S.case no.30/96, U/s 399 and 402 I.P.C. And 25(i) (b)/26

and 35 of the Arms Act and the police after investigation submitted charge-sheet U/s 399/402 and 414 I.P.C. and section 25(i)(b)/26 and 35 of the

Arms Act against all the accused persons and the case was committed to the court of sessions being S.T.No.202 of 1996.

The prosecution in support of its case have examined Seven witnesses.

P.W.1 Brij Bihari, Officer-in-Charge of Sudamdih P.S., P.W.2, Umrao Ram is Sub-Inspector of Sudamdih P.S., P.W.3 Raghunath Mahato has

been declared hostile, P.W.4-Jitendra Kumar, the informant of this case, P.W.5 Abhay Kumar Kujur, P.W.6 Sachidanand Choubey, Constable of

Sudamdih P.S and P.W.7 Ramesh Bouri, is seizure list witness but he has been declared hostile.

As per Exhibit list, Ext. 1 is the seizure list, Ext.2 is written report, Ext.3 is Formal FIR and Ext.4 is signature of Ramesh Bouri in the seizure list.

The Addl. Sessions Judge-XIII, Dhanbad vide judgment dated 24.03.2004 passed in S.T.No.202/1996 held the appellants guilty U/s 399,402,414

IPC but acquitted the appellants U/s 25(i)(b)/26 and 35 of the Arms Act.

P.W.4, Jitendra Kumar is the informant of this case and he has deposed that on 06.02.1996 at midnight he receive secret information that in the

house of Maraku Munda, some miscreants are planning to commit dacoity. On the aforesaid information, he assembled with ASI, S.N.Sharma, ASI,

Sri B.B. Singh, ASI,Sri U.Rai , Habildar Arjun Baitha alongwith armed forces went to the place of occurrence and during raid, he also picked up two

independent witnesses namely, Raghunath Mahto and Ramesh Bouri. When the police party entered in the house of Marako Munda, five persons

were taking country made liquor and after seeing the police party they tried to fled away but police apprehended them and on search one country

made pistol and four live cartridges with charger from the possession of Manik Bouri (Appellant No.1), five live cartridges with charger and one HMT

Wrist Watch and Khukhri from the possession of accused Madhu Bouri, four live cartridges with charger from the possession of accused Ram Kripal

Singh along with one dagger and one HMT writ watch. The police also recovered a razor from the possession of Samir Bouri and a seizure list was

also prepared and the accused persons were forwarded to the judicial custody. At para-36 of his evidence, he has narrated the house of Morako

Munda, which was made of Khapra,mud and bricks and there was no window in the house. He has further deposed that the articles which were

seized from the place of occurrence, the same were sealed in a packet and he is unable to identity the same as he is not arms expert. He has deposed

that he has denied that no recovery has been made from the accused persons.

P.W.6 is Sachidanand Choubey, Constable of Sudamdih P.S who was the member of the raiding party alongwith the informant, P.W.4 and has

corroborated the prosecution case.

P.W.2 is Umrao Ram, S.I. of Police and was also the member of the raiding party and he has supported the prosecution case.

P.W.1 is Brij Bihari, who was Officer-in-Charge of Sudamdih P.S. and he was also the member of raiding party..

P.W.3 is Raghunath Mahato and he has been declared hostile.

P.W.5 is Abhai Kumar Kujur, ASI of Police, who was also the member of the raiding party and he has produced the seized arms in the court,

which was marked as Ext.1. In his cross-examination he has stated that the seized arms have been produced in court were not sealed.

P.W.7 is Ramesh Bouri, who is seizure list witness and he has proved his signature on the seizure list but he has been declared hostile.

In course of argument, learned counsel for the appellants has submitted that the independent witnesses have bee declared hostile and remaining

witnesses are police witnesses.

Learned counsel for the appellants has relied upon the judgment of Hon'ble Patna High Court inS hridhar Koeri V. State of Bihar, reported in

(2000)1 East. Cr. Cases-402(Pat) and refer paragraph-11 of the said judgment, which reads as under :

“11. From the submissions made on behalf of both the parties, I find substance in this contention of the learned APP that there can be

conviction of the accused on the single testimony if his evidence is otherwise reliable and consistent. However, in this case, the evidence of

P.W.1 on the point of identification of the accused has not been corroborated by the evidence of PW2 who identified another person instead

of the appellant in the dock leads to the conclusion that identification of the accused that he was arrested after chase is not beyond

reasonable doubt. The seizure-list witnesses including PW3 have not stated that arms were recovered from the possession of the accused-

appellant in their presence, though PW3 has admitted his signature on the seizure-list but there is no reliable evidence on record to support

the prosecution case that at the time of alleged arrest of the accused-appellant, arms and ammunition were recovered from his possession,

which could have been strong circumstantial evidence against the accused if proved beyond all reasonable doubt by the prosecution.â€​

Learned counsel for the appellants has stated that no case u/s 399,402 and 414 I.P.C is made out, so the the impugned judgment of conviction be

set aside and the appeal be allowed.

On the other hand, learned Addl. P.P has submitted that P.W.4, who is the informant of this case has supported the prosecution case and in his

presence arms were recovered and seizure list was also prepared, which is marked as Ext.1 and hence, the case Arms Act is also made out against

the appellants.

In view of the judgment relied upon by the learned counsel for the appellants that admittedly in this case charges under the Arms Act has not been

proved, so the conviction of the appellants cannot be sustained.

Accordingly, this appeal is allowed and the impugned judgment is set aside. Since, both the appellants are on bail, they are discharged from the

liabilities of their bail bonds.