Kishori Ram Vs. State of Jharkhand - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 217 of 2002 --- Kishori Ram, son of late Tulsi Ram, resident of Thana Chowk Ramgarh, Police Station Ramgarh, District Hazaribagh … … Petitioner Versus The State of Jharkhand … … Opp. Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. A. N. Deo, Advocate For the State : Mr. Abhay Kumar Tiwary, A.P.P. --- C.A.V. on 06.04.2017 Pronounced on 10.07.2017 Heard Mr. A. N. Deo, learned counsel appearing for the petitioner and Mr. Abhay Kumar Tiwary, learned A.P.P. for the State. This application is directed against the judgment dated 06.02.2002 passed by the learned 5th Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 190 of 1996 whereby and whereunder the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Hazaribagh on 05.10.1996 in G. R. Case No. 1860 of 1994 by which the petitioner has been convicted for the offence punishable under Sections 25 (1-B)(A) and 26 of the Arms Act and sentenced to undergo rigorous imprisonment for one year has been affirmed. A First Information Report was instituted on the allegation that one Azad Kumar Singh was being interrogated in connection with Ramgarh P. S. Case No. 236 of 1994 and he had disclosed that the revolver was sold to the petitioner and one Govind Singh. On such disclosure police came to the motorcycle Garage of Govind Singh where both the petitioner as well as Govind Singh were found and on a search made a country made revolver was recovered. The accused persons disclosed that they had purchased the revolver from Azad Kumar Singh for an amount of Rs. 500/-. Based on the aforesaid allegation Ramgarh P.S. Case No. 300 of 1994 was instituted under Section 25(1-B)/35 of the Arms Act. Investigation resulted in submission of charge-sheet against the petitioner as well as other persons under Sections 25(1-B)(A), 26/35 of the Arms Act. On 26.11.1994 cognizance was taken and after framing of charge trial proceeded. -2- In course of trial six witnesses were examined on behalf of the prosecution. P.W. - 1, Rajkishore Prasad, is the informant who was posted as Officer In-charge-cum-Inspector of Ramgarh Police Station at the relevant point of time. This witness has stated that Azad Kumar Singh had confessed that the revolver used in the offence in connection with Ramgarh P.S. Case No. 236 of 1994 was sold to the petitioner. It has further been stated that on the basis of such confession the revolver was recovered from the garage and on being asked no paper could be produced and, therefore, the revolver was seized and the seizure list was duly prepared. P.W. - 2, Md. Noor Alam, is the seizure list witness who had stated about the recovery of a revolver made in his presence. P.W. - 3, S. N. Tiwary, was the Sub-Inspector of Ramgarh Police Station who had stated about the confession made by Azad Kumar Singh who was brought to the police station in connection with a case of robbery. This witness has further stated that on the confession of Azad Kumar Singh the garage was raided and one revolver was recovered. P.W. - 4, Ajju Murmu, had produced the seized revolver before the court which was marked as Exhibit – 1. This witness has proved requisite along with the seized revolver. P.W. - 5, Ramjee Sao, is another seizure list witness who did not support the seizure and, therefore, he was declared hostile by the prosecution. P.W. - 6, Baijnath Prasad Gupta, was the Sergent Major who had examined the revolver and found it in an effective condition. The test report of this witness was marked as Exhibit – 5. On conclusion of the trial the petitioner was convicted by the learned Judicial Magistrate, 1st Class, Hazaribagh on 05.10.1996 for the offence punishable under Sections 25(1-B)(A), 26, 35 of the Arms Act and he was sentenced to undergo rigorous imprisonment for one year each under Section 25(1-B) (A) of the Arms Act and Section 26 of the Arms Act and both the sentences were directed to run concurrently. The petitioner preferred an appeal being Criminal Appeal No. 204 of 1996 which however was dismissed by the learned 5th Additional Sessions Judge, Hazaribag on 06.02.2002. -3- Mr. A. N. Deo, learned counsel appearing for the petitioner, has submitted that the prosecution had not proved its case beyond all reasonable doubts as several important witnesses were not examined. It has been stated that Azad Kumar Singh whose confession led to the purported recovery was never examined. Learned counsel submits that one of the seizure list witness namely Ramjee Sao (P.W. -

5) did not support the seizure and was declared hostile by the prosecution. It has further been stated that neither any independent witnesses were examined nor any recovery was made from the conscious possession of the petitioner. It has further been stated that there is no evidence to suggest that the Garage from where the alleged recovery was made belong to the petitioner. Learned A.P.P. has opposed the prayer made by the petitioner and has stated that sufficient corroborative evidence are on record to highlight the involvement of the petitioner in concealing the revolver which has been purchased from Azad Kumar Singh and, therefore, this application is liable to be dismissed. It appears from the evidence of the witnesses that P.W. - 1, P.W. - 2 and P.W. - 3 that they are the witnesses who had been to the place of occurrence and were instrumental in seizing the revolver used in the commission of robbery as disclosed by Azad Kumar Singh. Although P.W. - 5, Ramjee Sao, did not support the seizure, but P.W. - 2 Md. Noor Alam, who is also a seizure list witness had stated about the recovery of a revolver made in his presence. The revolver so seized was found to be effective as per the test report (Exhibit –

5) of the Sargent Major (P.W. - 6). Thus the version of P.W. -1, P.W. - 2 and P.W. - 3 have been supported by the evidence of P.W. - 6. P.W. - 1 and P.W. - 3 have been consistent with respect to the confession made by Azad Kumar Singh and the subsequent raiding of the Garage and recovery of fire arm. The evidence of the witnesses suggests that the Garage belongs to the petitioner and although it has been denied by the petitioner but no evidence in rebuttal has been produced by the defence. In view of the consistent and corroborative evidence of the competent witnesses who were the members of the raiding party duly supported by the seizure list witness (P.W. -

2) as also by the Sargent Major (P.W. -

6) and their evidence being unadulterated, the learned trial -4- court had rightly convicted the petitioner for the offence punishable under Section 25 (1-B)(A)26/35 of the Arms Act and sentenced them accordingly. The learned appellate court had also on proper appreciation of both oral and documentary evidence had dismissed the appeal. There being no reason to conclude otherwise the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is, hereby, sustained. However, so far as the sentence imposed upon the petitioner is concerned, it appears that the First Information Report was instituted in the year 1994. The petitioner has remained for sometime in custody during trial and after the dismissal of his appeal. The petitioner has suffered mental agony on account of the prosecution pending for more than two decades. In view of the above, it would not be feasible to take back the petitioner to custody to serve out the rest part of his sentence. Accordingly the sentence imposed upon the petitioner is modified to the period already undergone. This application stands dismissed with the aforesaid modification in sentence. (Rongon Mukhopadhyay, J.) Umesh/-