Baleshwar Yadav @ Shyamji Vs. the State of Jharkhand - Court Judgment

Dilip Kumar Sinha, J.

1. The Criminal Appeal is directed against the judgment of his conviction dated 3.8.2006 and order of sentence passed by Shri R.B. Gupta, Addl. Sessions Judge, F.T.C., Latehar in Sessions Case No. 12 of 2006 whereby the appellant Baleshwar Yadav @ Shyamji was convicted under Section 386,307 and 323 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years, 10 years and simple imprisonment for one year respectively and fines with default stipulation. He was further convicted under Section 25(1B) 26 & 27 Arms Act and sentenced to undergo simple imprisonment for three years and fine of Rs. 2,000/-, rigorous imprisonment for 5 years and fine of Rs. 2,000/- and rigorous imprisonment for 3 years and fine of Rs. 2,000/- respectively with default stipulations of imprisonment. Finally he was convicted under Section 17 of the Criminal Law Amendment Act, 1908 find sentenced to undergo imprisonment for 3 years and fine with default stipulation. Sentences were directed by the trial court to run concurrently.

2. The prosecution story as it stands narrated in the written report ( Ext. 6) of the informant P.W. 9 Harish Kumar Pathak, S.I. of Police, Kuru Police Station ( Latehar District) addressed to the Officer-in-charge, Chandwa Police Station ( District Latehar) was that he received information from the Superintendent of Police, Lohardagga on 22.8.2005 in the wee hours at about 2 a.m. that the appellant Baleshwar Yadav, Zonal Commander of M.C.C. was staying at village Rajgurua and pursuant to such information, three raiding parties of police were organized on the command of the S.P., Lohardagga and the raiding parties arrived at village Rajgurua where the informant was communicated by the said S.P. that though Baleshwar Yadav @ Shyamji was staying there for some time but he proceeded to the house of the widow namely Parvati Devi at village Senha within Chandwa Police Station and accordingly he was directed to immediately conduct raid. The informant informed Cnandwa Police Station on wireless by requesting to assist in the raid to be conducted for the arrest of the appellant and the raiding parlies arrived at village Senna. On the command of the S.P., Lohardagga when the door of the suspected house was knocked, a woman came out and in the same transaction, a person attempted to escape from the back door of the house carrying a bag. When that person was challenged and asked to stop, he turned back and resorted fire from his pistol tout misfired. The raiding party commanded him to surrender but the person again fired shot. Fires were exchanged by the raiding party including the informant in the air, only with a view to terrorize and after chase the appellant was apprehened and a pistol was recovered from his possession which contained two cartridges of 9 m.m. in the magazine i.e. one misfired and another fired cartridge. On search of the bag of he appellant, in presence of the witnesses, the informant narrated that Rs. 1,00,000/- (one lakh) in cash, letter pad of C.P.I. (M), receipt books, papers relating to transaction of levy, pumplates and many other incriminating materials were recovered. The appellant confessed that he was the Zonal Commander of M.C.C. The pistol recovered from his possession was found made in Italy but without authority or licence of such possession. The appellant was arrested and seizure list of the articles recovered from his possession was prepared in presence of the independent witnesses. On the statement of the informant, Chandwa P.S. Case No. 80 of 2005 was registered on 22.08.2005 for the offence under Sections 386,307,333, 323 I.P.C., under Section 25(1B) /26/27 Arms Act and under Section 17 of the Criminal Law Amendment Act, 1908, The appellant was remanded to judicial custody on 23.8.2005.

3. The police after investigation submitted charge-sheet against the appellant Baleshwar Yadav @ Shyamji under aforesaid Sections in various Acts in which F.I.R. was lodged.

4. The appellant was put on trial oiler framing of charge since he pleaded not guilty and claimed to be tried.

5. After the evidence adduced on behalf of he prosecution, the appellant was examined and his statement was recorded under Section 313 Code of Criminal Procedure. He denieu his guilt when confronted with the incriminating materials producer on the record during trial. He specified that on 22.8.2005 he was there at Kuru bus stand at about 8 a.m. awaiting for boarding Lohardagga bus where he intended to go for his treatment but he was arrested there by the police, brought to the Kuru Police Station, where he was assaulted and his signatures were obtained on 4/5 blank papers. He further explained that he was brought to Chandwa Police Station on 23.8.2005 and from there he was remanded to Latehar Jail and that he was falsely implicated.

6. Mr. Jitendra Shankar Singh, learned Counsel for the appellant assailed the impugned judgment by submitting that the appellant was convicted under Section 380,307 & 323 for substantive sentence without legal evidence and made the following submissions:

(i) There was no evidence on the record to prove that the appellant caused or put any member of the police raiding party in fear of any injury, death or grievous hurt so as to attract his conviction under Section 386 I.P.C. Similarly, no prosecution witness adduced that the appellant caused any injury to him or that he was put in fear of injury, death or grievous hurt to deliver any property or valuable security. The prosecution further failed to adduce by disclosing names of the victims that they had given any amount to the appellant either by way of levy or under duress or in fear of death and hence the charge under Section 336 I.P.C. could not be proved and his conviction under such section was unsustainable

(ii) Similarly, charge under Section 307 I.P.C could not be proved. The witnesses were consistent that the appellant fired shot from his pistol on the police party. The possibility of shots if fired in the air did not tantamount to an offence under Section 307 I.P.C. Admittedly, none of the members of the raiding police party sustained any gun shot injury. The time of alleged occurrence, according to the written report, was about 3.45 a.m. and the informant P.W. 9 testified that though he had heard the sound of firing shot but he could not guess on account of darkness as to from which direction the fire originated. The prosecution even failed to establish that it was none other than the appellant who fired shot on the raiding party but admittedly without injury to any person, The members of raiding party also claimed by testifying having fired shots in retaliation but without injury to the appellant or another and therefore alleged fire from the side of the appellant and counter fire from the raiding party could not be proved which suggested that the occurrence did not take place in the manner presented by the prosecution in the Trial Court.

(iii) The next point for consideration was that the pistol and cartridges seized were sent to the P.W. 2 Sergeant Major, Anand Shankar Prasad who testified that he received 5 misfined, 3 live and one empty cartridges and that he did not test the live (sic) and compare the same scientifically with the cartridges recovered from the ground, two in number so as to connect the same with the (sic) made pistol as allegedly recovered from the possession of the appellant. In this manner also the prosecution failed to prove the charge under Section 307 I.P.C. That the fired and misfired cartridges recovered from the ground were fired from the pistol, which was allegedly recovered from the appellant. Learned Counsel pointed out with reference to a decision of the Supreme Court in Hazarr Singh and Ors. v. State of Punjab and Bhajan Lal and Ors. v. State of Punjab reported in : [1971]3SCR674 that the prosecution must prove that when the accused fired his gun it was intended to fire at some one because it may be that the shots were fired in the air or in some direction only with a view to create confusion and not to kill. Similarly, there was no evidence at all on the record in support of the charge under Section 323 I.P.C. without there being any injury report brought on the record or substantiated by the so called independent seizure witnesses about the assault. Similarly P.W. 9 denied any injury or scuffle with the appellant. In this manner, the learned Counsel submitted that the prosecution failed to prove any of the charges under Section 386,307 and 323 I.P.C. against the appellant and hence his conviction in those sections and sentence imposed with fine thereto were unsustainable, liable to be set aside.

7. Advancing his argument Mr. Singh emphatically made submission that the conviction of the appellant under Section 26 as well as 27 of the Arms Act is unsustainable as charges under both the sections may not be framed at a time. Learned Counsel pointed out that the arrest memo of the appellant was proved Ext. 9 and its column 9 indicated, 'nothing except clothes' but after some wores it was penned through and then mentioned,' according to seizure list' substituted. The arrest memo was proved by P.W. 9 Harish Kumar Pathak, the informant of the case who testified by admitting that the arrest memo was in his pen and signature and he admitted cutting in column 9 by way of certain addition but the cutting had got no bearing of his signal are. This fact was supported by P.W. 10 Ravinder Kumar Rai, Investigating Officer that certain cutting was made in column 9 and substitutior was made in that column in different ink. There was no material on the record in support of the charge under Section 26 Arms Act that the fire arm and ammunition were concealed by the appellant with such intention that the concealment may not come to the knowledge of any public servant. There was no material on the record that the appells it was aware of the fact that raid was likely to be conducted by the police officers and in order to avoid such raid ho had concealed the fire arm and ammunitions from the raiding party. On the contrary, it was alleged that the appellant on witnessing the police raiding party, fired from his pistol and therefore, his conviction under Section 26 Arms act is unsustainable. The witnesses were consistent that he used firearm against the police party and therefore, in this manner the appellant did no; conceal the firearm. As regards the charge under Section 27 Arms Act the witnesses including the informant were consistent that they heard the sound of fire in the wee hours of 22.8.2005 at about 4.15 a.m. without any gun shot injury to any one of either side. The time of incident was wee hours and the visibility was not as such to identify persons standing nearby. Learned Counsel pointed out that the Home-guard P.W. 7 Rajesh Kumar testified that in the torch light he spotted the appellant running away but he admitted that he had not made such statement under Section 161 Cr.P.C. Similarly, no other witness corroborated the statement of P.W. 7 and in this manner the prosecution failed to establish that the appellant fired from the pistol within the sight of any of the prosecution witnesses so as to attract and prove the charge under Section 27 of Arms Act, for want of which, his conviction under such Section cannot sustain. Similarly, Itlay made pistol alleged to be seized from the possession of the appellant was neither sealed nor sent to the Forensic Science Laboratory to find out the fingerprint of the appellant thereon. Admittedly, neither the pistol nor the fired cartridges or live cartridges recovered from the place of alleged occurrence were sealed after alleged seizure at the place of occurrence or at any place and in this manner the opportunity to the prosecution party of changing the arm and amrnunitions cannot be ruled out.

8. Advancing his argument Mr Singh submitted that it was peculiar to mention that the fire arm and ammunitions a legedly seized were sent to P.W. 2 Sergeant Major Anand Shankar Prasad who was not a forensic expert and he fairly admitted that he did not test fire the pistol and in absence of test fire and the cartridges allegedly recovered from the place of occurrence without being compared with those found in the magazine and in possession, the appellant cannot be held guilty for the charge under Section 25(1B) a Arms Act. The prosecution failed to prove that the pistol so recovered was functional and effective to fire shots.

9. According to the prosecutor case, huge quantity of incriminating materials as contained in seizure list (Ext.5) were recovered in presence of the witnesses Rajesh Yadav ( P.W. 1) and Rajesh Kumar ( P.W. 7). The seizure list indicated seizure of .9 m.m. Sem; automatic regular pistol made in Itlay with live cartridge in the chamber and two live cartridges in the magazine with additional magazine containing 4 live cartridges of .9 m.m., one empty cartridge of .9 m.m. and another misfired cartridge of .9 m.m. collected from the courtyard.

10. The seizure list further indicated recovery of Rs. 1 lakh in cash with letter pad printed with C.P.I ( Maoist) with 50 sheets and cash receipt beginning from SI. No. 7201 to 7250 with counterfoils of 11 receipts in token of the amount received from several persons, pocket diary, pumplates, letters demanding levy from different persons, minute of the meeting in which one Kino Oraon was nominated as chairman with minutes of the meeting, plain copy and many other items including a calculator of Orpat. The seizure list bore the signature of the appellant Baleshwar Yadav @ Shyamji and it was prepared by the Ofifcer-in-Charge of Kuru Police Station Camp-Senha ( Chandwa) District-Latehar on 22.8.2005 at about 4.15 a.m. in the house of Parvati Devi, widow of Shiv Charan Yadav at village Senha. According to the prosecution case the entire seizure of the incriminating materials alleged to be recovered from the house of one Parvati Devi at village Senha and she was produced as P.W. 11. She admitted her signature in the memo of arrest of the appellant but in the cross-examination she clearly testified that on the instance of the Officer-in-Charge of Kuru Police Station she put her signature at Kuru Police Station at about 12 noon and she further admitted that there was no cutting in column No 9 when she put her signature thereon. She did not identify the appellant in the dock and further clarified that she was witnessing him for the first time in the Court on pointing out by the defence counsel.

11. Learned Counsel further pointed out with reference to the statement of the appellant recorded under Section 313 Code of Criminal Procedure that the incriminating materials confronted to the appellant after evidence adduced on behalf of the prosecute on was not in consonance with the materials on the record as also without any legal evidence in view of the fact that neither the offence under I.P.C. nor under Arms Act and nor under Section 17 of the C.L.A. Act was put in support of the charge as framed against the appellant.

12. Finally, learned Counsel submitted that the appellant was detained by the police illegally beyond 24 hours in contravention of the provisions of the Code of Criminal Procedure without his production before the nearest Magistrate. The appellant specifically denied recovery of any incriminating article from his possession and in this manner Ext. 5 could not be proved so as to attract the offence under Section 17 of the C.L.A. Act. Even none of the independent witnesses whose name appeared in the so-called counter-foil of the cash precepts of the M.C.C. (Mouist) could be produced in support of the charge that the appellant received levy on behalf of the M.C.C. from them. The specific defence of the appellant was that he was arrested from Kuru bus stand while he was about to board a bus for Lohardagga where he intended to go for his treatment. The appellant was innocent and was maliciously implicated to which the Trial Court failed to consider this aspect that no offence could be proved against him but he was illegally convicted.

13. Mr. V.S. Sallay, learned A.P. P. submitted that on account of fear of M.C.G. people no independent witness appeared in the witness box during trial of the appellant but several incriminating articles were recovered in presence of police personnel from the conscious possession of the appellant which was kept in a bag including a 9 m.m. pistol made in Italy with live catridges and magazine. The incriminating articles recovered from the possession of appellant were seized by the informant police officer who produced before the Investigating Officer and the seizure list of such materials has got bearing of the signature of the appellant which indicated that the articles were seized from his possession and he put his signature in token of acknowledgement of such seizure. The judgment of conviction and order of sentence passed against the appellant in various penal offences recorded by the Trial Court were well discussed which did not call for interference hence the appeal be dismissed.

14. Having regard to the acts and circumstances of the case, argument advanced on behalf of the appellant as well as learned A.P.P. I find substance in the argument of Mr. Singh, learned Counsel that the appellant was convicted and sentenced for the charge under Section 386/307 and 323 I.P.C. without legal evidence on the record.

15. I find from the charges as framed against the appellant Baleshwar Yadav @ Shyamji that he on 22.8.2005 was arrested at viliage Senha from the house of Parvati Devi and levy money of Rs. 1 lakh was recovered from his possession which he had collected from Mofil Khan, B Mehta, Firoz Mian, Ali Mohammad, Seraj Mian, Anuj Prasad, Hari Yadav, Mantu Sao, Modi Conslrcution Company, Satyadeo Prasad and Israil Mian after putting them in fear of death or grievous hurt in order to commit extortion and thereby committed of once punishable under Section 386 I.P.C. There appears substance that none of the aforesaid witnesses was produced and examined on behalf of the prosecution to substantiate the said charge against the appellant that any amount was delivered to the appellant (sic) by way of levy or under duress or in fear of death so as to constitute an offence under Section 386 I.P.C. hence the charge could not be substantiated only by inclusion of names in the counter foils of the receipt book like 'Jain Diary'.

16. Similarly, the next charge was that the appellant being the Zonal Commander of M.C.C. an extremist party did an act by firing pistol on the police party with such intention or knowledge and under such circumstances that if by that act had he caused death of any of the members of the police party he would have been guilty of murder. Learned Counsel for the appellant consistently argued that the witnesses produced on behalf of the prosecution testified that the appellant fired shot from his pistol. But at the same time it is settled that shots if fired in the air did not tantamount to an offence under Section 307 I.P.C. None of the members of the police party sustained any injury alleged to be caused from the shot fired from the pistol of the appellant. The time of such fire was 3.45 a.m. and the informant had simply heard the sound of firing but he could not guess as to from which direction the fire originated in the darkness. I find substance in the argument that the prosecution even failed to establish that it was none other than the appellant who fired shot on the police party. Interestingly, the members of raiding party also claimed by testifying having fired shots in retaliation but without injury to the appellant and therefore, alleged fire from the side of the appellant and counter fire from the raiding party could not be proved. Similarly, P.W. 2 Sergeant Major Anand Shankar Prasad who had examined the pistol as well as misfired and fired cartridges failed to establish that the fired cartridge which was produced before him was actually fired from .9.m.m. pistol allegedly recovered from the possession of the appellant and in this manner also the charge under Section 307 could not be substantiated against the appellant. The prosecution further failed to (sic) that if at all any shot was fired the appellant intended to fire at someone. As regards charge framed under Section 323 I.P.C. against the appellant neither any injury report was brought on the record nor P.W. 9 supported having sustained any injury in scuffle with the appellant and in this manner charge under Section 323 failed. I, therefore, find and observe that the prosecution failed to prove the charge against the appellant under Sections 386/307/323 I.P.C. and accordingly set aside.

17. With reference to charge under Section 26 of the Arms Act which was framed that the appellant on the same day and time was in possession and control of an automatic regular pistol of 9 m.m., made in Italy, in contravention of the provision of Section 3 & 4 of the Arms Act in such manner as to indicate an intention that such act may not be known to public servant. The said charge indicated that the appellant was in possession of firearm, which was kept concealed from the sight of the public servant.

18. On the contrary Section 26 of the Arms Act reveals 'secret contraventions';-

(i) whoever does any act in contravention of any of the provisions of Section 3,4,10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.

Section 3 of the Act deals with licence for acquisition and possession of firearms and ammunitions that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the Rules made thereunder;

(i). Provided that a person may, without himself holding a licence, carry any firearms or ammunitions in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

Similarly Section 4 of the act deals with licence for acquisition and possession of arms of specified description in certain cases which means and includes that the Government by notification in official gazette prohibit acquisition or possession or carrying in specified area of arms (not firearms) of such class or description as may be specified in that notification unless he holds a licence issued in accordance with the provisions of this act and the rules made thereunder. The prosecution failed to show any notification with respect to the provision of Section 4 of the Arms Act, 1959. But as regards contravention of Section 3 of the Act, the prosecution proved that no licence was shown by the appellant for acquisition and possession of Itlay made pistol with cartridges and magazine, which amounts to punishment under Section 26 of the Arms Act. The fact was buttressed by the evidence of the prosecution witnesses viz P.W. 4 Kishore Tamsoy, P.W. 6 Vidya Vati Ohdar, Officer-in-Cnarge of Bhadna Police Station, P.W. 7 Rajesh Kumar, Homeguard and P.W. 9 Harish Kumar Pathak.

19. The charge against the appellant was framed also under Section 27 of the Arms Act but I find certain error in charge as depicted that the appellant on the same day, time and place was in possession of firearms with intent to use the same for unlawfuI purpose. On the contrary, Section 27 deals with punishment for using arms in contravention of Section 5 of the Arms Act. The prosecution witnesses viz. police personnel consistently testified that fire was shot from .9 m.m. pistol which was found in possession of the appellant with fired, misfired and live cartridges. Admittedly, no injury was caused to any witness and the prosecution further failed to point out the intended target of such fire but it was consistently proved by the prosecution witnesses that the appellant was found in possession of .9 m.m. Itlay made pistol in contravention of Section 5 of the Act, punishable under Section 27 of Arms Act. The prosecution proved the sanction of the District Magistrate ( Ext. 4) for the prosecution of the appellant under Arms Act.

20. On appreciation of the prosecution evidence on the record, I further find that the prosecution could be able to prove the charge under Section 25(1B) a successfully which was erroreously typed as 25(1B) a.

21. Mr. Singh, learned Counsel consistently argued that the prosecution even failed to prove the charge as framed against the appellant under Section 17 of the C.L.A. Act, 1908. The required elements to constitute offence that the appellant was a member of unlawful association or he used to take part in the meeting of such association, or contributed for the purpose of any such association, in any way assisted the operations of any such association so as to call for punishment of imprisonment and fine or with both. The police personnel who were produced as the prosecution witnesses were consistent that the appellant was a Zonal Commander of M.C.C., which was based merely on hearsay evidence and without any legal evidence or source of such information on the record. The Learned Counsel sincerely pointed out that the material exhibits were neither seized in presence of the independent witnesses nor were properly sealed and signed by the witnesses in accordance with law.

22. It is widely acclaimed and settled that where evidence of Investigating Officer and other prosecution witnesses are consistent in respect of recovery of incriminating materials from the possession of the accused, the evidence as to such recovery or discovery needs not to be discarded merely on the ground that the independent seizure witness did not prove the seizure list as the attitude of the seizure witnesses may be influenced by several reasons. In the present scerario, in my view, the prosecution case cannot be discarded merely because the independent witness P.W. 1 Rajesh Yadav did not support the seizure of incriminating articles including huge cash of levy from the possession of the appellant. But at the same time recovery of huge quantity of incriminating articles in presence of police personnel viz., letter pads of C.P.I.(M), literatures of C.P.I.( Maoist), cash receipts of the levy beginning from serial No. 7201 to 7250 its counterfoils and many other letters, documents, incriminating pamphlets, minutes of the meetings of the MCC organization shows the nexus of the appellant with the Maoist communist centre by his active participation in the activities of C.P.I.( Maoist) which is banned by the notification of Home Department, Govt. of Jharkhand dated 14.7.2006 vide No. 12/5-AA/Su(51)-22/2004-2444 in exercise of the power vested under Section 16 of the Criminal Law Amendment Act, 1908. Under the circumstances conviction of the appellant is upheld under Section 17 C.L.A. Act, 1908.

23. In the facts and circumstances as well as the discussions made hereinabove, I find that the prosecution failed to substantiate charge against the appellant under Sections 386, 307 & 323 I.P.C. and hence judgment of conviction and order of sentence recorded against him for the aforesaid charge is set aside.

24. But at the same time, I find and hold that the prosecution could be able to prove the charge under sections 26,27 and 25(1B) a of the Arms Act as also under Section 17 of the C.L.A. Act, 1908.

25. The judgment of conviction and order of sentence recorded by the Additional Sessions Judge, F.T.C., Latehar in Sessions Case No. 12 of 2006 against the appellant Baleshwar Yadav @ Shyamji for the aforementioned charge and sentence awarded to him thereto is affirmed.

With such modification in judgment and order of sentence this appeal is dismissed.