Manzar HussaIn Vs. the State of Jharkhand - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]d.k. sinha, j.1. this appeal is directed against the judgment of conviction dated 29.07.2002 and order of sentence dated 03.08.2002 recorded by shri akhileshwar jha, additional sessions judge, f.t.c.-ii, jamshedpur in sessions trial no. 300 of 2000 by which the sole appellant was held guilty under section 25(1-b) of the anns act and was sentenced to undergo rigorous imprisonment for three years and to pay fine of rs. 1,000/- with default stipulation to undergo simple imprisonment for a period of 3 months.2. the prosecution story in short was that the informant p.w. 15 rahul sawa delivered his fard bayan on 09.02.2000 at jubilee park, jamshedpur stating that his father hari prasad sawa (since deceased) had proceeded with his maruti steam car at about 6 a.m. to jubilee park for a walk as usual in the morning. the informant after some time received telephone call that some unknown person had committed murder of his father by firing shot. he immediately went to jubilee park upon such information and found his father lying in the pool of blood, which was coming out from the injuries inflicted in his head and that the police had already arrived there. disclosing the genesis, the informant stated that his father hari prasad sawa was the director in the 'akash builders', golmuri and the other accused persons krishna bihari sinha, rakesh sinha, amresh sinha were also the directors in the said firm. some differences had developed amongst the directors for the last 3 months to which series of cases were instituted against each other including against his father and maternal uncle pradeep churiwala in which they had obtained bail. a title suit no. 102 of 2009 was also filed by his father-deceased before the court of sub-judge and in that suit his father had obtained temporary injunction. a separate g.r. no. 2901 of 1999 (criminal case) was instituted by rakesh sinha against his father and in that case also his lather and maternal uncle had obtained bail. the informant in the same sequence farther alleged that the accused persons had terrorized the employees of 'akash builders' and had also terrorized his father (since deceased) in various ways. to be more specific the informant alleged that the accused persons had threatened his father at beldih club asking to keep himself away from the dispute, failing to which he would be eliminated. for such chain of events the informant had reason to believe that the accused krishna bihari sinha, rakesh sinha, amresh sinha in prosecution of criminal conspiracy had given effect to the alleged occurrence by committing murder of his father.3. learned counsel mr. zaid ahmad submitted that on the basis of statement of the informant p.w. 15, the f.i.r. was instituted against only three accused persons, namely krishna bihari sinha, rakesh sinha & amresh sinha. however, investigating officer after investigation submitted charge-sheet under sections 302/34 of the indian penal code against manjar hussain (appellant), liyakat ali and javed akhtar and against the remaining accused krishna bihari sinha, rakesh sinha, amresh sinha & pradeep churiwala materials could be collected for the alleged offence under sections 302/120b of the indian penal code. in the same charge-sheet it was stated that there were materials against the appellant herein manjar hussain for the offence under section 27 of the arms act. accordingly, the charges were framed against the appellant manjar hussain and two other liyakat ali and javed akhtar under sections 302/34 of the indian penal code and separate charge under sections 302/120b of the indian penal code was framed against the other 4 accused krishna bihari sinha, rakesh sinha, amresh sinha & pradeep churiwala. further, exclusive charge under section 27 of the arms act was framed against the appellant manjar hussain. in course of trial, as many as 21 witnesses were produced and examined on behalf of the prosecution and after a detailed judgment all the accused were acquitted except the appellant manjar hussain, who was held guilty for the offence under section 25(1-b) of the arms act and was sentenced to undergo rigorous imprisonment for three years and fine of rs. 1,000/- with default stipulation, however, acquitted from the charge under section 302/34 of the indian penal code.4. the learned counsel assailed the impugned judgment on the ground that in course of investigation, the appellant manjar hussain and javed akhtar were arrested and it was alleged that on their confessional statements a country made revolver was recovered with 4 live cartridges loaded therein. it was further stated that 4 used cartridges (empty cartridges) were also recovered on their pointing out.5. learned counsel explained that according to the prosecution case, a seizure list was prepared of the seizure of country made revolver, 4 live cartridges and 4 empty cartridges in presence of the witness p.w. 9 ziaur rahman @ baban & p.w. 10 nasimuddin and one sanatan (not examined), who put their signatures on the seizure list (ext.21). the prosecution had produced the seizure witness ziaur rahman @ baban & nasimuddin whose statements were recorded under section 164 cr.p.c. before shri k.k. singh, judicial magistrate, 1' class, wherein, it was stated that they had admitted the seizure of the firearms and ammunitions in their presence but they did not support in their substantial evidence, any land of seizure of firearm or ammunition in their presence by the police and they were declared hostile, as such, under the circumstances, seizure of firearm and ammunition could not be proved against the appellant manjar hussain, the learned counsel added. the learned judicial magistrate before whom the statements of these two witnesses were recorded under section 164 cr.p.c. was produced and examined before the trial judge and the learned judicial magistrate supported that these two witnesses had admitted in their respective statements about the seizure of firearm and ammunition pursuant to the confessional statement of the appellant manjar hussain but the conviction of the appellant for the alleged offence under section 25(1-b) arms act was not sustainable under law for the reasons that the statement of p.w. 9 & 10 before the magistrate was not a conclusive evidence in nature and in this connection reliance has been placed on the decision of bombay high court reported in 1999 cr.l.j. 1936. a division bench of bombay high court in similar situation observed that the statement given under section 164 even if proved, can only be accepted as substantive evidence. a statement under section 164 cr.p.c. can be used to cross-examine the person who made it and the result may be to show that the evidence of the witness is false. but that does not establish that what he stated out of court under section 164 is true. therefore, the statement of facts recorded under section 164 cr.p.c. is used for corroboration or contradiction and the trial court cannot base its finding sustaining the conviction or acquittal of an accused on the statement of a witness recorded under section 164 cr.p.c. who later on turned hostile and the same cannot be treated as substantive evidence. the statement of the judicial magistrate before whom such statements were recorded is also not going to improve the legal position and the trial court cannot base conviction of the accused upon such statement of the judicial magistrate.6. the next point that has been raised by the learned counsel for the appellant is that the alleged recovery of firearms and ammunitions was made pursuant to the joint confessional statement of the appellant manjar hussain and the another accused javed akhlai and both of them stood charged for the offence under section 27 of the arms act but on similar set of evidence javed akhtar was acquitted whereas the present appellant was convicted under section 25(1-b) of the arms act without amending the charge which was framed under section 27 of the arms act and in that manner the appellant was highly prejudiced. he was not event confronted with the materials if at all brought on the record during trial in his statement recorded under section 313 code of criminal procedure which could attract conviction under section 25(1-b) of the arms act.7. heard mr. tapas roy, learned a.p.p. on behalf of the respondent- state, who fairly admitted that the appellant was acquitted for the charge under section 302/34 of the indian penal code but was held guilty for the offence under section 25(1-b) of the arms ad and that the seizure witnesses had turned hostile.8. having regard to the facts and circumstances of the case, the short question that has been raised in the instant case is as to whether conviction of the appellant was justified under the arms act when the seizure witnesses were unfavourable to the prosecution and did not support the seizure of firearms and ammunitions on pointing out by the appellant. hon'ble courts including the apex court of india are consistent that the statements of the witnesses recorded under section 164 cr.p.c. are not substantive evidence in nature and the conviction cannot be based on the basis of such statements unless corroborated by any other substantive evidence. but in the instant case the seizure witness p.w.9 ziaur raliman @ baban and p.w. 10 nasimuddin have denied seizure of any firearm or ammunitions in their presence pursuant to the confessional statement of the appellant manjar hussain and that one sanatan, who was also made the seizure witnesses abstained from the witness box for the reasons best known to the prosecution. in this case, the judicial magistrate in whose presence the statements of the seizure witnesses were recorded under section 164 cr.p.c. was also examined before the trial judge and he admitted that the witnesses had stated the seizure of the firearm and ammunitions in their presence and had also admitted that a seizure list was prepared but such statement of the judicial magistrate was neither substantive nor conclusive in nature so as to warrant the conviction of the appellant under section 25(1-b) of the arms act. the appellant was certainly not prejudiced for the reasons that though the charge was framed for the graver offence under section 27 of the arms act but was convicted under section 25(1-b) of the arms act i.e. under lighter offence. it was pointed out that though the state had preferred appeal against the acquittal of the other accused persons including the appellant for the charge of murder but the said appeal was dismissed.9. in the circumstances, i find that the prosecution failed to prove the charge as framed under section 25(1-b) against the appellant beyond the shadow of all reasonable doubts. i find that the seizure witnesses turned hostile as became unfaourable to the prosecution as none of p.w. 9 ziaur rahman or p.w. 10 nasimuddin did prove seizure of firearm and ammunitions on pointing out by the appellant in their presence. the third seizure witness sanatan abstained from the witness box. i find that the prosecution miserably failed to prove the fact that pursuant to the confessional statement of the appellant, firearm and ammunitions were recovered so as to attract the offence under section 25(1-b) of the arms act and in other words, the charge under said section could not be proved beyond shadow of all reasonable doubts. for the reasons stated, the judgment of conviction under section 25(1-b) and order of sentence recorded against the appellant needs interference and accordingly the same are set aside in relation to sessions trial no. 300 of 2000. accordingly, this appeal is allowed and the appellant manjar hussain is acquitted. he is discharged from the liability of bail bond in this case.