Sambhu Kumar Singh and anr. Vs. State of Bihar (Now Jharkhand) - Court Judgment

Vishnudeo Narayan, J.

1. This appeal at the instance of the appellants is directed against the impugned judgment and order dated 25.7.1995 and 31.7.1995 respectively passed in Sessions Trial No. 272 of 1992 by Shri Dilip Kumar Sinha, 2nd Additional Sessions Judge, Hazaribagh whereby and whereunder the appellants were found guilty for the offence punishable under Sections 25(1)(c) and 26(2) of the Arms Act, 1959 and they were convicted and sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 25(1)(c) and they were further sentenced to undergo rigorous imprisonment for a period of five years for the offence under Section 26(2) of the said Act and the sentences were ordered to run concurrently. However, both the appellants were not found guilty of the offence under Section 5 of the Explosive Substance Act and they were accordingly acquitted in respect thereof.

2. The prosecution case has arisen on the basis of self report of PW 1 Shambhunath Singh Vir, SI, Sadar Police Station, Hazaribagh recorded on 1.12.1991 at 20.15 hours in front of the premises of Bihar State Transport Corporation at Patna-Ranchi road regarding the occurrence which is said to have taken place at 19.00 hours on that very day at northern gate of old bus stand at Hazaribagh and a case was instituted against the appellants by drawing of a formal first information report on that very day at 21.00 hours which was received in the Court on 4.12.1991 empowered to take cognizance.

3. The prosecution case, in brief, is that PW 1, the informant along with the police force was on patrolling duty and in course of his duty he came inside the premises of Bihar State Transport Corporation, Hazaribagh and he found five passengers coming from the waiting hall towards the northern gate of the said bus stand and two of them boarded a bus bearing Registration No. BR-2H-4848 and the informant along with the raiding party proceeded towards the said bus and three of them fled away from there taking advantage of darkness. It is alleged that the informant interrogated the aforesaid two passengers in the bus and they disclosed themselves as Shambhu Kumar Singh and Suresh Koiri respectively and they stated that they are coming from Dhanbad and they are to go to Gaya and their person was searched and a country made pistol and three live cartridges of .315 bore were recovered from full-pant of appellant Shambhu Kumar Singh aforesaid and one country made loaded pistol under the pyzama and four live cartridges of .315 bore from the pocket of kurta (shirt) of appellant Suresh Koiri were recovered. It is also alleged that appellant Shambhu Kumar Singh told on query that a briefcase has been kept in the luggage (dickki) of the bus which belongs to his companions and the said briefcase was opened and two country made pistol along with eleven live cartridges of .315 bore and explosive substance in two plastic packets were also recovered in the said briefcase along with some clothes. It is also alleged that both the appellants disclosed the names of his as societies as Karo Paswan, Shankar Paswan and Sibdeni Singh and the aforesaid incriminating articles were seized as per the seizure list (Ext. 4) in presence of the witnesses.

4. Charge was framed against the appellants under Sections 25(1-B) and 26 of the Arms Act and also under Section 5 of the Explosive Substance Act.

5. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case on mere suspicion and no incriminating article has been recovered from their possession.

6. The prosecution has examined, in all, four witnesses to substantiate its case. PW 1 Shambhunath Singh Vir is the informant of this case and he was posted as SI in the Sadar PS, Hazaribagh on the date of the occurrence. PW 2 Manoj Yadav is a witness of seizure (Ext. 4) and his signature thereon is Ext. 3 but he has turned hostile and he does not support the factum of recovery of the aforesaid incriminating articles from the possession of the appellants in his presence. PW 3 Kedarnath Choube is a formal witness and a clerk of an advocate and he has proved the seizure list (Ext. 4) in this case. PW 4 Hawaldar Rameshwar Singh is also a formal witness, who has brought three countrymade pistol and twenty live cartridges before the Court, which are material Exts. 1 to 1/2 and 11 to 11/19 respectively said to be the incriminating articles recovered from the appellants and he has also proved the forwarding letter (Ext. 5) addressed to the learned Court below in respect thereof. No oral and documentary evidence has been brought on the record on behalf of the appellants.

7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that there is no iota of legal evidence on the record to substantiate the recovery of the aforesaid incriminating articles in accordance with law from the conscious possession of the appellants and the seizure list is a manufactured document and PW 2, a witness of seizure, does not support the recovery of the said incriminating articles from the possession of the appellants whereas Binesh Kumar Yadav, other witness of search and seizure, has not taken oath in this case. It has also been submitted that the solitary testimony of the informant has not been corroborated by the member of the patrolling party as they have not taken oath in this case for the prosecution and the witnesses of the seizure also does not support the evidence of PW 1, and in this view of the matter, the testimony of PW 1 is not at all reliable and the learned Court below has committed a manifest error in coming to the finding of the guilt of the appellants on the basis of the solitary testimony of PW 1, the informant. It has further been contended that the entire prosecution case is a got up one and no incriminating article as alleged has been recovered from the possession of the appellants which is evident from the testimony of PW 4 who has brought three revolvers and twenty live cartridges before the Court which are material Ext. I and II series whereas four countrymade pistols and eighteen live cartridges of .315 bore are said to have been recovered as per seizure list (Ext. 4) prepared by the informant and it clearly establishes the fact of the false implication of the appellants in this got up case. It has been contended that the first information report was drawn after instituting the case against the appellants on the basis of the written report of the informant on 1.12.1991 at 21.20 hours but it is surprising enough that the said formal first information report and the self- statement of the informant have been received in the Court on 4.12.1991 empowered to take cognizance and no explanation is forthcoming on the record to explain the said inordinate delay in respect thereof and it shows that the self-statement of the informant is an antidated documents purposely brought into existence to falsely implicate the appellants. It has been submitted that neither the IO nor any ballistic expert has taken oath in this case and there is no legal evidence on the record as to whether the aforesaid recovered country made pistols are in working order or not. Lastly, it has been contended that both the appellants has remained in custody for a period of four years as under trial prisoners and for the sake of arguendo if the appellants are even found guilty in view of the evidence having legal infirmities therein, they may be released modifying their sentence already undergone by them.

8. The learned APP has submitted that the evidence of PW 1, the informant supports the prosecution case regarding the recovery of the aforesaid incriminating articles from the conscious possession of the appellants and the learned Court below has rightly relied upon the evidence of PW 1 read with the seizure list (Ext. 4) for coming to the finding of the guilt of the appellants and therefore, there is no infirmity in the impugned judgment requiring an interference therein.

9. PW 1, the informant, has deposed that he was on patrolling duty on the day of the occurrence along with police force and in course of his patrolling duty he came to the premises of Bihar State Transport Corporation, Hazaribagh at about 19.00 hours and seeing the police force five persons came out of waiting hall and they proceeded towards the northern gate and two of them boarded the bus bearing Registration No. BR-2H-4848 and finding their conduct suspicious he went to the said bus and made interrogations from them i.e. both the appellants and their person was searched in accordance with law in presence of two independent witnesses and one country made loaded pistol was recovered from the waist under the full pant of appellant Shambhu Kumar Singh and three live cartridges of .315 bore were also recovered from the right packet of his full pant. He has further deposed that one country made loaded pistol was recovered from the waist under the pyzama of appellant Suresh Koiri besides four live cartridges of .315 bore were recovered from the packet of his kurta (shirt). His evidence is further to the effect that three of their associates had fled away from there taking advantage of the darkness and both the appellants disclosed the names of their associates and they also disclosed about the briefcase of their associates which was opened in presence of the witnesses and two country made pistols and eleven live cartridges of .315 bore were recovered from the said briefcase besides two plastic bag containing explosive substance. In para 7 of his cross-examination he has deposed that he had searched the person of both the appellants inside the bus itself but before that he has not given his search to the independent witnesses. He has further deposed that he has prepared the seizure list outside the bus. PW 2 is said to have witnessed the search and seizure and he admits his signature on the seizure list but he has turned hostile and in his cross-examination he has deposed that he has put his signature on the following day at about 10.00 O'clock outside the bus stand aforesaid Binesh Kumar Yadav, the other witness of the search and seizure has not taken oath in support of the prosecution case. PW 2 has specifically deposed in the evidence on oath that no incriminating article was recovered in his presence from the appellants. The aforesaid incriminating articles were brought before the Court by PW 4 on the requisition of the Court as per Ext. 5. PW 4 Hawaldar Rameshwar Singh has deposed that he has brought three revolvers and twenty cartridges from Sadar Police Station before the Court. It appears as per the prosecution case that four pistols and two of which were loaded and eighteen live cartridges were recovered from the appellants including the briefcase in question but it appears queer enough that instead of four pistols and eighteen live cartridges aforesaid, three revolvers and twenty cartridges were brought before the Court.

There is distinction between county made pistol and revolver. Therefore, the incriminating articles brought before the Court have definitely no co-relation with the alleged seized incriminating articles from the appellants and it is a fatal lacunae of the prosecution case and it cannot be said that the alleged recovered articles from the possession of the appellants have been brought before the trial Court. This aspect of the matter casts a cloud of suspicion to the very warp and woof of the prosecution case. Furthermore, there is no evidence on the record to establish the fact that the alleged incriminating articles recovered from the possession of the appellants were in working order and effective falling under the definition of arms and ammunitions under the provisions of the Arms Act. No ballistic expert has taken oath in this case for the prosecution. In this view of the matter, there appears reasonable suspicion and it smells rat regarding the authenticity of the prosecution case. The witnesses of seizure do not support the prosecution case. No other member of the patrolling party has come to substantiate the prosecution case. The IO has also not taken oath in this case. Considering all the facts, circumstances and materials on the record, the prosecution case regarding the search, recovery and seizure of the alleged incriminating articles from the possession of the appellants appear suspicious. And last but not the least, the alleged date of recovery is 1.12.1991, which is Sunday, and 2.12.1991 and 3.12.1991 are working days on which the Court was open. The Sadar PS is hardly at a distance of less than two kilometers from the Court. The self-statement and the formal first information report have been received in the Court on 4.12.1991. No explanation is forthcoming by the prosecution as to how there had been inordinate delay in sending the first information report to the Court empowered to take cognizance after such an inordinate delay.

The first information report in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance is which the crime was committed including the names of the actual culprits and the parts played by them and delay in lodging the FIR often results in embellishment which is a creature of an afterthought and on account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger and creeps in of the introduction of a coloured version or exaggerated story. The late receipt of the FIR in the Court can give rise to an inference that the FIR was not lodged at the time it has alleged to have been recorded and the facts and circumstances are indicative of the fact that the FIR came to be recorded later on after due deliberations and consultations and it was anti-times unless, of course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the FIR by the local Magistrate. Here in this case, the self-statement of the informant was recorded on 1.12.1991 at 19.00 hours but the self-statement of the informant along with the formal first information report was received in the Court on 4.12.1991 and there is no explanation on the record to explain the said inordinate delay by the prosecution regarding the receipt of the FIR in the Court on 4.12.1991. Section 157 of the Code of Criminal Procedure casts a duty upon the IO to forthwith send a report of the cognizance offence to the concerned Magistrate. This aspect of the matter, casts a suspicion to the very credibility of the prosecution case. Therefore, in the facts and circumstances of this case, the non- production of the seized articles as per Ext. 4 and production of a different kind of firearms as stated above in the Court cast a cloud of suspicion to the very credibility of the texture of the prosecution case and in this view of the matter, the evidence of PW 1, the informant lacks credence and it cannot be relied upon. Considering the facts, circumstances and materials on the record, the entire prosecution case appears to be doubtful.

The learned Court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. There is no legal evidence on the record to establish the prosecution case beyond all reasonable doubts.

10. There is merit in this appeal and it succeeds. The appeal is hereby allowed.The impugned judgment of the learnedCourt below is set aside. The appellants are found not guilty and they are, accordingly, acquitted and discharged from the liabilities of their bail bonds.