AI Structured Summary
Not yet generated for this judgment
Judgment
Criminal Appeal (SJ) No. 560 of 2015 wherein Rekha
Devi is the appellant and Criminal Appeal (SJ) No.638 of 2015
wherein Mesho Choudhary is the appellant been heard analogously
as, originate from common judgment of conviction and sentence dated
20.08.2015 as well as 22.08.2015 respectively, passed by Additional
Sessions Judge, Vth, Munger in Sessions Trial No.990 of 2013
whereby and whereunder both the appellants have been found guilty
for an offence punishable under Section 25(1- A) of the Arms Act and
each one has been sentenced to undergo R.I. for five years as well as to
pay fine appertaining to rupees five thousand, under Section 25 (1-AA)
of the Arms Act wherein each one has been sentenced to undergo R.I
for ten years as well as fined of rupees ten thousand, under Section
25 (1-B) of the Arms Act and sentenced to undergo R.I. for three years,
fined of rupees five thousand, under Section 26(1) of the Arms Act and
sentenced to undergo R.I. for five years as well as to pay fine
appertaining to rupees five thousand, under Section 26(2) of the Arms
Act and sentenced to undergo R.I. for ten years, fined of rupees ten
thousand and in default of payment of fine (consolidated) to undergo
S.I. for seven months additionally, with a direction to run the
sentences concurrently with a further direction of set off with regard
to the period as already undergone during course of trial.
PW.3, Avinash Chand, S.I. recorded his self statement
on 25.09.2013 disclosing therein that after getting confidential
information with regard to running of illegal arms factory by Mesho
Choudhary, a raiding party was constituted and then, conducted raid
at the house of Mesho Choudhary lying at village-Garhi Rampur.
Considering activity of the accused, none of the villagers came forward
to stand as a seizure list witness and that being so, the members of
the raiding party namely lady constable no.225, Bina Kumari (PW.1),
ASI Balmukund Sah (PW.6), ASI Akhilesh Kumar (PW.5) were
nominated as seizure list witnesses and then thereafter, they gone
inside the house of Mesho Choudhary. As soon as they entered, one
person escaped by scaling the wall, while a lady was found standing
having small Jhola in her hand which she had concealed beneath her
Sari. Furthermore, they have seen a ditch excavated and filled up
recently whereupon, they became suspicious and after digging the
court yard they have found the items which he had incorporated in the
seizure list (detailed) and for that, Balmukund Sah as well as
Akhilesh Kumar stood as seizure list witnesses. Furthermore, with
the help of lady constable no.225, Bina Kumari, lady was searched out
and from the Jhola, a regular pistol along with three live cartridges
were recovered and for that, Veena Devi as well as Balmukund singh
stood as seizure list witnesses. The lady was interrogated who
disclosed her identity as Rekha Devi and further disclosed that the
person who escaped therefrom happens to be her husband Mesho
Choudhary. After preparing arrest memo, she was taken into custody
and brought to P.S. along with seized articles.
After registration of the case as Naya Ram Nagar P.S.
Case No.184/2013, investigation was entrusted to Lalan Paswan who
during course of investigation got the seized article examined by the
ballistic expert, obtained sanction order, examined the witnesses,
followed with submission of charge sheet facilitating the trial which
concluded in a manner, subject matter of instant appeal.
Defence case, as is evident from mode of cross- examination as well as statement recorded under Section 313 of the
Cr.P.C. is that of complete denial. Furthermore, it has also been
pleaded that police officials were carrying grudge and on account
thereof, took Rekha Devi in custody and then thereafter, to justify
detention, involved in this false and concocted case showing false
recovery. To justify the same examined four DWs.
In order to substantiate its case, altogether seven PWs
have been examined on behalf of prosecution, PW.1-Veena Devi,
PW.2-Awadh Kishore Prasad, PW.3-Awinash Chandra, PW.4-Lalan
Paswan, PW.5-Akhilesh Kumar, PW.6-Balmukund Sah, PW.7-Arvind
Kumar. Side-by-side had also exhibited Ext.1-Signature upon the
seizure list, Ext.2-Signature upon the memo of arrest, Ext.3-Signature
upon the prosecution report, Ext.1/1-writing on seizure list, Ext.4-
Writing and signature of seizure list, Ext.2/1-Memo of Arrest, Ext.5-
Writing of Registration, Ext.5/1-Endorsement, Ext.6-FIR, Ext.7-
Charge sheet, Ext.7/1-Forensic Science Report, Ext.8-Arms Inspection
Report, Ext.8-Arms Inspection Report, Ext.9-The report of FSL,
Besides it, the following are materials exhibits.
Material Ext.1 to 1/23, Pistols(24), Material Ext.2 to
2/34, Semi Made Magazine (35), Material Ext.3 to 3/21, Barrel (22),
Material Ext.4, Country made pistol, Material Ext.5 to 5/6, Frame of
Pistol magazine, Material Ext.7, base Material Ext.8 to 8/1 Old Drill
Machines, Material Ext.9 to 9/14, Old Cartridges (14), Material ext.10,
the bundle of Saresh paper, Material Ext.11,1. Country made Butt,
Material ext.12 to 12/9, Reti (10 base), material ext.13 Hexa(1),
Material Ext.14 to 14/4, frame of making barrel. Material Ext.15 to
15/1 Carbine magazine Material ext.17 Manufactured arms, 9/15, 1
cartridge.
On the other hand, the defence had also produced four
witnesses in their defence: They are namely-DW 1 Mantu Chaudhary,
DW.2 Ramvilash Chaudhary, DW.3-Babulal Mandal and DW.4
Triveni Chaudhary.
Learned counsel for the appellant while assailing the
judgment of conviction and sentence has submitted that the
revengeful activity of the police officials is manifest even at a glance
over the prosecution case and on that very score, the judgment of
conviction and sentence recorded by the learned lower court did not
justify its sanctity.
In order to substantiate the same, it has been
submitted that from the prosecution evidences it is apparent that they
have not taken any sincere effort to pursue the villagers in order to
become seizure list witness and the aforesaid exercise, an obligatory in
accordance with Section 100 of the Cr.P.C. has been given a go-bye in
one stroke by saying that none of the villagers became ready to be
seizure list witness. That means to say none presence of independent
witness happens to be contrary to the spirit of law whereupon, the
story of search and seizure found completely demolished.
It has also been submitted that the alleged recovery
could not be accepted because of the fact that during course of
inspection of P.O. as recorded by PW.4 Lalan Paswan had not
supported the same. Manufacturing of arms and ammunition is to be
carried out by installing a lathe machine as well as furnace is also
required for melting the raw material in order to prepare barrel and
other parts which neither been seized nor found by the I.O. during
course of inspection of P.O. Therefore, allegation of running of an
unauthorized gun factory happens to be an illusion of the prosecution
to justify the malicious prosecution.
Furthermore, it has also been submitted that alleged
seized articles, as is evident from the deposition of PW.3, informant
PW.4 the Investigating Officer and PW.7 the Sergeant Major were not
carrying specific mark whereupon, the prosecution is found not at all
justifiable as held by the Apex Court as well as by our own High Court
and for that referred Pabitar Singh v. The State of Bihar reported in
AIR 1972 SC 1899, Jasbir Singh v. State of Punjab reported in (1998)8
SCC 525, Faujdari Mistry Ors. V. The State of Bihar reported in
2002(2) PLJR 545. So, submitted that the judgment of conviction and
sentence is found unsustainable in the eye of law, whereupon is fit to
be set aside.
Learned Additional Public Prosecutor while refuting
the submission advanced on behalf of appellant has submitted that
prosecution case had itself been admitted at the end of the appellant
by examining four DWs who have had categorically stated, admitted
presence of police official on the alleged date and time of occurrence at
the house of the appellant. They have also admitted going the police
officials inside the house, arresting appellant Rekha Devi at the other
hand, absence of Mesho Choudhary. They have simply denied the
recovery, and to that extent prosecution case is to be seen which, after
going through the evidences of the respective PWs is found duly
substantiated. It has also been submitted that all the articles did not
possess proper identification mark but, some of them were carrying
identification mark which has not been controverted at the end of the
defence and furthermore, all the articles were sent to Sergeant Major,
PW.7 for ballistic examination as well as FSL examination and the
report is on the record. Apart from this, it has also been submitted
that all the articles whichever been seized, have been detailed under
the seizure list, having presence of appellant Rekha Devi and for that
there happens to be no explanation coupled with objective finding of
the Investigating Officer and so, cumulative effect thereof, support the
finding recorded by the learned lower court. It has further been
submitted that production of material exhibit in court is an additional
ground for putting reliance upon the version of the prosecution.
PW.7 is the Sergeant Major who had examined the
seized material on 25.09.2013 itself (Date of occurrence) on being
produced by the Investigating Officer, Lalan Paswan in sealed
condition. Accordingly, he gave his finding after examination of
materials so produced viz a pistol of 7.65 bore to be effective, 25
numbers of semi manufactured pistol of different length, properly
identified, 35 numbers of semi manufactured grasping, 25 numbers of
barrel of pistol, six slide, 12 proforma of pistol magazine, other kinds
of tools, cartridges, .315 bore country-made katta to be effective and
then submitted his report (Ext.8). He had also exhibited the report of
FSL as Ext.9. He, after sealing materials, handed over to the
Investigating Officer. In para-3, he had stated that he is not
remembering the category of seal having affixed. He had not
mentioned the same in his report. He had thrown away the seal which
was affixed since before after breaking it opened for examination of
material exhibits. He had further stated in para-7 that he, after
sealing the material exhibits, kept the same in the same bag wherein
it was taken to him but he is unable to disclose its colour. He is unable
to disclose the identification mark having put over bag and in likewise
manner, over the material exhibits. He had affixed separate
identification mark over the material exhibit. He had not mentioned
length and breadth of countrymade katta. He had fired to test the
barrel. He had further stated in para-23 that he had not mentioned
the fact that countrymade katta was affixed with butt or not. Whether
spring was there or not, he has also not written. He is unable to say
the seal mark having over the material exhibit since before his
examination.
PW.4 is the Investigating Officer who had deposed that
on 25.09.2013 he was posted at Naya Ram Nagar P.S. On that day,
Officer-in-charge, Avinash Chandra (PW.3) entrusted him with the
investigation of instant case. He had taken further statement of the
informant. He had taken statement of accused Rekha Devi. Visisted
the place of occurrence which happens to be the house of Rekha Devi
as well as Mesho Choudhary having boundary East-Mohan
Choudhary, West-Mesho Choudhary, South-Nageshar Choudbary,
North-Sriniwas''s barren land. He took statement of Veena Devi,
Balmukund, Akhilesh Kumar. He had conducted raid to apprehend
Mesho Choudhary, as he was absconding, could not apprehended. Got
the material exhibits examined by Sergeant Major. Received sanction
order. Sent the pistol and cartridges to the FSL laboratory and the
report is available on the record. Then thereafter, submitted charge
sheet. He had produced the material exhibits in court and all have
been exhibited. Then had exhibited the seizure list. During cross-
examination, he had stated that material exhibits have been brought
up in a bag tied by a rope having no sealed over it. There happens to
be no sealed mark over the bag. There are two bags inside the main
bag which also did not contain sealed mark. Then had disclosed that
out of seizure of semi manufactured pistol, the P.S. Case number is
scribe over only one. Save and except one, others did not contain the
specific mark and in likewise manner, there happens to be
connectivity relating to magazine, barrel, slide, pharma of slide,
pharma of carbine. In likewise manner over file, Heksa Grappling
Machine there happens to be no P.S. case number. In para-18, he had
stated that there happens to be absence of independent witness over
the seizure list. In para-19 he had stated that he had examined
independent witness under para-49, 50 of the case diary. In para-21,
he had stated that he had not mentioned in the case diary with regard
to length, breath and depth of the ditch and in likewise manner
dimension of the hole having in the wall. In para-24 he had admitted
that he had prepared sketch map of the P.O. Thereafter, the witness
was recalled for exhibiting the material exhibits, pistol and live
cartridges allegedly recovered from possession of Rekha Devi and was
sent to FSL, seal was broken in the court itself and was accordingly
exhibited. On that very score he had stated that no specific mark has
been put over the same.
PW.3 is the informant. During his examination-in-chief,
he had stated that after receiving confidential information regarding
running of illegal gun factory by the Mesho Choudhary, a raiding
party was constituted and then raid was conducted. The articles so
enumerated in the seizure list were recovered from the ditch having in
the courtyard, while from a hole having in the wall of the house
(detailed) and for that, in presence of seizure list witnesses, search
cum Seizure List was prepared. One lady was standing at one side
who was searched with the held of lady constable Veena Kumari and
from the Jhola, which she was carrying one pistol along with three
magazine were found for that seizure list was prepared. The aforesaid
lady was apprehended. Then they returned back from the place along
with accused as well as seized article. After registration of the case,
investigation was entrusted to Lalan Paswan. During cross-
examination in para-3 he had disclosed that he had put identification
mark over each of the seized article. Then corrected as he had put his
initial over each item. He had further stated that aforesaid activity
has not been mentioned in his self statement nor in the seizure list.
Articles were carried on police jeep. Seized articles were deposited in
the Malkhana. Articles are being deposited in the Malkhana under
Malkhana register. Then had submitted that till his further
statement, articles were not deposited in the Malkhana. After the
further statement, same was deposited. In para-9, he had further
stated that he had not put proper identification mark over the articles
recovered from a ditch. In paras-22,23,24 there happens to be detailed
description with regard to articles having been kept in a ditch. In
para-26, he had further mentioned that there happens to be no
description in his self-statement as well as seizure list with regard to
sealing of the articles. In para-38, he had stated that house of the
accused was identified by the chowkidar. In para-40, there happens to
be suggestion that the house where articles were seized does not
belong to the accused.
PW.5 is Akhilesh Kumar and PW.6 is the Balmukund
Sah, both seizure list witnesses as well as ASI who have participated
during course of conduction of raid and further, corroborated the
recovery, preparation of search cum seizure list. Apprehension of
Rekha Devi and recovery of firearms from a Jhola possessed by her.
During cross-examination PW.5 had stated in para-2 that articles
were seized from three places and for that two, seizure list were
prepared. He stood witness relating to one seizure list. In para-4 he
had stated that there was no specific mark affixed over each item at
the place of occurrence. All the items were kept in a bag and then
taken to police station. In para-17 he had denied suggestion that
nothing was recovered from the house of the accused. PW.6 during his
cross-examination had stated at para-9 that none of the villagers came
during course of raid. In para-10, he had stated that he is unable to
say whether mukhiya, surpanch were called on. However, the persons
having their houses in the vicinity were called upon. Search cum
seizure list was prepared. In para-13 he had stated that no specific
mark was put over the seized articles at the place of occurrence. All
the items were kept in a bag and then taken to the police station. He
had also been suggested that nothing was recovered from the house of
the accused.
PW.1 is lady constable who was requested to
participate in a raiding party and accordingly, she came from east
colony P.S. and joined the raiding party who conducted raid at the
house of Mesho Chaudhary. She had further disclosed that Mesho
Choudhary and one female were arrested. Female was searched out
and during course thereof, firearm, magazine were recovered from a
bag (Jhola) which she was carrying. She had identified both the
accused persons. During cross-examination at para-9 she had stated
that Officer-in-charge had affixed chit over which, she had signed. One
ASI had also put signature over the same. She stood seizure witness
relating to seizure of arms and magazine from possession of the
female over which, she had put her signature. In para-15 she had
further stated that all the persons having their adjacent house fled
away seeing the police. She had also denied the suggestion that
nothing was recovered from the house of the appellant.
PW.2 is formal in nature in the background of
perceiving his status wherein he had exhibited sanction order granted
by the District Magistrate. Nothing substantial is found in his cross-
examination.
The judicial pronouncement having placed on behalf of
appellants substantiated the argument having on behalf of appellant
that non sealing of the material exhibit at the place of occurrence
would cast a doubt over genuineness of the prosecution version. On
the other hand there happens to be settled proposition of law that the
principle so decided is to be seen with the facts of the case to trace out
its applicability. So far facts of the present case is concerned, it is
apparent that no independent person has been shown as seizure list
witness but, there happens to be no denial at the end of the appellant
that police had not visited their place as well as had not arrested lady
accused, Rekha Devi. It is also found from the record that four
witnesses have been examined on behalf of appellants/accused and all
have categorically admitted that police had conducted raid at the
house of Mesho Choudhary and during course thereof, they have gone
inside the house of Mesho Choudhary. They deposed that nothing was
recovered therefrom but, none of them had claimed to have gone
inside the house of Mesho Choudhary along with police or, during the
stay of the police. In the aforesaid background none presence of
independent witness is not going to give any adverse impact.
It is also evident from the cross-examination of all the
police officials that neither they were cross-examined on the score of
personal grudge, vendetta nor it was so suggested. In the aforesaid
background there was no occasion for the police officials to depose out
of grudge. Therefore, their evidences are to be adjudged like ordinary
witness and that has repeatedly been held by the Apex Court more
recently in Baldev Singh vs. State of Haryana reported in 2016 Cr.L.J.
154.
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. 11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad (dead) by LRs. vs. State of M.P., AIR 2007 SCW 5589 = (2007) 7 SCC 625, it was held as under:- "[24] In our judgment, the above proposition does not lay down correct law on the point. It is well- settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. [25] It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a- century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". (emphasis supplied) [26] In Tahir v. State (Delhi ), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
From the evidence of PW.7, Sergeant Major, it is
apparent that all the material articles except the pistol and three
magazine recovered from Rekha Kumari were placed for proper
examination and report on the date of occurrence itself by the
Investigating Officer whereupon he submitted his report which the
appellants failed to demolish. In the aforesaid background, as well as
considering the seized material in bulk and having signature of the
officials concerned over one of the item of each category, supports the
recovery. In likewise manner whether sealing of the articles so
recovered was possible at the site itself, whereupon no cross-
examination was made. At least, there should be feasibility on that
very score. Furthermore, had there been any sort of doubt or
grievances it was open for the appellant to have called for the
malkhana register in order to challenge veracity of the evidence.
Apart from this, Ext.9 the FSL report regarding seized pistol with
magazine should also be taken note of which was duly marked, sealed
and the same was removed in the court itself. There happens to be no
cross-examination of Investigating Officer on that very score.
Furthermore material exhibits have been brought up before the court
and is in consonance with the details made in the search cum seizure
list, and with regard thereto, defence had not challenged. Recovery of
arms and ammunition being manufactured in such huge quantity
completely rules out false implication, more so, when the defence
failed to substantiate. At the present moment, the evidence of PW.1
looks desirable to be referred, as she during her examination-in-chief
had deposed that Mesho Choudhary as well as Rekha Devi both were
apprehended which is not actual fact as, Mesho Choudhary succeeded
in his escape by scaling the wall.
Now coming to propriety of the conviction, appellant
Rekha Devi has not been charged with the aid of Section 35 of the
Arms Act rather, she has been conjointly charged along with her
husband. There happens to be no evidence on the score that she
happens to be involved in such activity along with her husband save
and except having in possession of a bag wherefrom a pistol and three
magazine were recovered, seized. It is also not happens to be case of
prosecution that seized arms and ammunition belongs to prohibited
one, satisfying the ingredients prescribed under Section 2(h),(i) of the
Arms Act . Apart from this, the country side still suffers from
patriarchal mode of governance and in the aforesaid background, it
looks appropriate to set aside the conviction and sentence recorded by
the learned lower court against her with regard to remaining sections
of the Arms Act save and except 25(1-B)(a) of the Arms Act inflicted by
the learned lower court, reducing the sentence as already undergone
in the background of the fact that she remained under custody for
approximately three years. She is on bail hence discharged from its
liability.
So far appellant Mesho Choudhary is concerned, he is
found guilty for an offence punishable under Section 25(1)(a), 25 (1-
B),(a)(c), as well as 26(2) of the Arms Act, and for that is sentenced to
undergo R.I. for five years as well as fine of Rs.5000/-, R.I. for three
years, R.I. for five years as well as fine of Rs.5000/- respectively and in
default of payment of fine, to undergo R.I. for one month under each
head, with a further direction to run the sentences concurrently. The
conviction and sentence under Section 26(1) of the Arms Act is not
found duly substantiated, hence set aside. With the aforesaid
modification, both the Appeals are partly allowed. Appellant is under
custody which he will remain till saturation of the sentences.