Rajesh Ganjhu vs State Of Jharkhand

Gautam Kumar Choudhary, J

This appeal is preferred against the judgment of conviction under Sections 148, 353, 307, 414/149 of the IPC, Sections 25(1-B)a, 26/27/35 of the Arms Act and Section 17 of the CLA Act. He has been sentenced for offences under Section 307 of the IPC and Section 25(1-B)a of the Arms Act and Section 17 of the CLA Act. No separate sentences has been awarded under other Sections.

Informant is Sub Inspector of Police, on whose self-statement recorded on 19.09.2006, FIR was registered. As per the FIR, on the basis of secret information regarding presence of 6–7 MCC extremists plotting some incidence. Police conducted raid in Kalipur Forest Area in the afternoon around 4 O’ Clock. On being surrounded by the police party, extremists opened fire. The firing was returned by the police party and 6 – 7 persons were seen escaping from the place of occurrence. On chase, one of them (appellant) was apprehended and .303 police rifle was seized with butt number of 58 on it and also 24 live cartridges, which were formerly seized. He disclosed the names of other five accomplices. In the morning, on search from the place of occurrence, one fired cartridge of .303 bore, was seized.

On the basis of the self-statement, Kuru P.S. Case No.99 of 2006 was registered under Sections 147, 148, 149, 353, 307, 414 of the IPC and Section 25(1-B)a, 26/27/35 of the Arms Act and Section 17(ii) of the CLA Act.

Police on investigation, found the case true and submitted charge sheet submitted and the accused was put on trial.

Altogether 12 witnesses have been examined on behalf of the prosecution and relevant documents have been adduced into evidence and marked as Exhibit 1 – 5. Rifle, live cartridges etc. were produced and have been marked as material Exhibit I – IV.

Judgment of conviction has been assailed on the ground that no independent witness has been examined in this case and the prosecution case rests on the testimony of police witnesses only. Charge under Section 307 of the IPC has not been proved as no one was even injured in the said firing. Although it is stated that the extremist outfit resorted to indiscriminate firing, but only one fired cartridge could be recovered from there. There is no material to support the conviction under Section 17 of the CLA Act.

Learned counsel on behalf of the State has defended the judgment of conviction and sentence. It is submitted that appellant was apprehended on spot with arms and ammunitions. All the witnesses have consistently stated that the extremist party have opened fire on the police.

At the outset, it may be noted that law is settled that evidence of Police personnel’s need not be approached with initial distrust. To the contrary, there is a presumption that official acts have been regularly performed [under Section 114(e) of the Evidence Act]. It has been held in Pramod Kumar Versus State (Govt. of NCT of Delhi), (2013) 6 SCC 588

“13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.”

In the present case, Police encounter took place, as per the prosecution evidence in the forest area and therefore, it will not be practicable to look for private witnesses. Altogether, 12 witnesses have been examined on behalf of prosecution. P.Ws. 1 – 11 were in the police party, who took part in the operation conducted by the Police and CRPF. It has been deposed to by the witnesses that the appellant was apprehended on spot and one .303 bore police rifle with 24 live cartridges and one ammunition bag was seized from him. Nothing significant has come in the cross-examination so as to discredit their account. Defence has failed to elicit any contradiction in their account, or any infirmity to raise reasonable doubt on the veracity of their testimony.

P.W. 11 is the Investigating Officer. He has proved the ballistic report of the rifle and cartridge received from Sargent Major which has been marked as Exhibit 3. Sanction report has also been proved and marked as Exhibit 5. Fire arms, cartridges etc. were produced in the court and marked as material exhibit. The prosecution case cannot be disbelieved for the reason that only one fired cartridge was seized from the place of occurrence, whereas the firing continued for about half an hour. Considering the place of occurrence to be a jungle area, recovery of each and every fired cartridge from the place of occurrence will be a remote possibility.

In view of the fact that firing was resorted to by the extremist party aiming at the police force, there is no infirmity in the judgment of conviction under Sections 148, 353, 307/149 of the IPC and Section 27 of the Arms Act. It is not necessary that in all cases injury should be caused to make out the offence under Section 307 of the IPC. Particularly in cases of attempt on life made by firing, fortuitous escape from sustaining bullet injury, cannot by itself be a ground to hold that there was no attempt to cause murder. In the present case, the consistent evidence is that on approach of police party, extremist opened fire, which has been proved by oral evidence as well as recovery of empty cartridge from the place of occurrence. On these materials, we find that there is no infirmity in the conviction under Section 307 of the IPC.

With regard to the recovery of the rifle and cartridges, conviction under Sections 25 (1-B)a, 26 and 27 of the Arms Act, is affirmed. In view of the fact these arms were seized from the conscious physical possession of the appellant therefore, Section 35 of the Arms Act will have no application and conviction under it is accordingly, set aside. It is definite case of the prosecution that .303 rifle was issued to the police having butt number 58. Section 414 of the IPC can be invoked against persons who voluntarily assisting in the sale, disposal or concealing the said property. It has been held in Ajendra Nath Versus State of M.P.¸ AIR 1964 SC 170 that Section 414 of the IPC makes it an offence for a person to assist voluntarily in concealing or disposing of or making away with the property, which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under this Section that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered, is stolen property and appellant provided help in its concealment and disposal.

In view of the above stated position of law, Section 414 of the IPC will not apply. This is not a case of concealing or disposing of a stolen property. The rifle which was seized, has been stated to belong to police. But any further detail regarding it, is absolutely lacking. Under the circumstance, conviction under Section 414 of the IPC is set aside.

As far as Section 17 of the CLA Act is concerned, there is no material legal evidence that appellant was a member of a banned outfit. It is obvious that encounter did take place, but there is no actionable evidence to prove the charge under Section 17 of the CLA Act. Under the circumstance, conviction under Section 17 CLA Act is set aside.

Learned trial court while passing the judgment of conviction has refrained from passing sentence under all the Sections for which the appellant has been convicted. This is against Section 354(1)(c) of the Cr.P.C. which requires the punishment to be specifically stated in the judgment. Trial Courts are under a mandate of law to record a finding with respect to each of the Sections under which charge has been framed, and in cases of conviction, to pronounce sentence as per the penal provisions. It is to the discretion of the Court, to order such sentences to run concurrently or not. But the Court cannot after conviction shirk away from awarding sentences for the offences under which the appellant has been found to be guilty of.

Considering the nature of offence, the sentence awarded under Section 307 of the IPC and Section 25(1-B)a of the Arms Act, is affirmed.

Appellant is further convicted and sentenced for one year each under Sections 148 and 353 of the IPC and Sections 26 and 27 of the Arms Act. All the substantive sentences to run concurrently. Appellant is further sentence to a fine of Rs.5000/- each under Sections 26 and 27 of the Arms Act, and in default of payment of fine, to undergo SI of 15 days each.

With this modification in finding and sentence, the instant Appeal stands dismissed. Appellant is on bail, his bail bond is cancelled and he is directed to surrender before the learned trial court forthwith.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.