Criminal Appeal No. 458 of 2001
With
Criminal Appeal No. 462 of 2001
----
Against the judgment of conviction and order of sentence dated 29.9.2001 passed by Shri
Devendra Kumar Lal, VIIth Additional Judicial Commissioner, Ranchi in Sessions Trial
No. 419 of 1997 and 185 of 1998.
---
1. Kishnadeo Prasad.
2. Shaila Devi .. Appellants ( In Cr.Appeal No. 458/01)
-Versus-
The State of Jharkhand .... Respondent.
---
Manoj Sinha ...Appellant ( In Cr. Appeal No. 462/01)
-Versus-
The State of Jharkhand ........Respondent.
--
For the Appellants : M/s. B.M.Tripathy, Sr. Adv.
and A.K.Sahani, Adv ( In both the cases)
For the Respondent : Mr. Md. Hatim, APP.
---
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR
Reserved on 8.2.2010 Pronounced on 10/ 03/2010
Pradeep Kumar, These appeals are directed against the judgment of
conviction and order of sentence dated 29.9.2001 passed by Shri Devendra
Kumar Lal, VIIth Additional Judicial Commissioner, Ranchi in Sessions
Trial No. 419 of 1997 and 185 of 1998, by which judgment he found both
the appellants, Kishnadeo Prasad and Shaila Devi (In Cr. Appeal No.
458/01) guilty under Section 412 of the Indian Penal Code as also under
Section 25(1-B) and 26 of the Arms Act and sentenced them to undergo
R.I. for 4 years under Section 412 of the Indian Penal Code, R.I. for 3
years for offence under Section 25(1-B) of the Arms Act and R.I. for 4
years under Section 26 of the Arms Act. However, he directed all the
sentences to run concurrently. He also found the accused-appellant, Manoj
Sinha ( In Cr. Appeal No. 462/01) guilty under Section 212 of the Indian
Penal Code and sentenced him to undergo R.I. for 2 years.
2. Since, both the appeals arise out of the same judgment,
hence both the appeals were heard together and are being disposed of by
this common judgment
3. It is submitted by the learned counsel for the appellant,
Manoj Sinha that there is absolutely no evidence that the appellant, Manoj
Sinha had any knowledge that the other accused persons, Kishnadeo
Prasad and Shaila Devi, who had taken his house on rent, are keeping
criminals with them and are also keeping the theft articles in their tenanted
premises and as such his conviction under Section 212 of the Indian Penal
Code is bad in law and fit to be set aside.
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4. Learned counsel for the appellants, Kishnadeo Prasad and
Shaila Devi has also stated that the theft articles and other illegal arms and
ammunitions have been recovered from another room and as such they
have no knowledge that the co-tenants living with them are criminals and
they are keeping theft articles in their houses and as such their convictions
under Section 412 of the Indian Penal Code as also under Sections 25(1-B)
and 26 of the Arms Act, is also bad in law and fit to be set aside.
5. On the other hand, learned counsel for the State has
opposed the prayer and submitted that all the appellants had knowledge
that they are hardened criminals and are also keeping the theft articles in
their houses and as such they have rightly been convicted.
6. After hearing both the parties and going through the record,
I find that the instant case was started on the basis of a written report filed
by Nakul Dubey, S.I. of Argora Police Station stating therein that on
3.1.1997
during investigation of Argora P. S.Case No. 1/97 registered
under Sections 302, 307 and 427 of the Indian Penal Code and 27 of the
Arms Act at about 3 P.M. he received information that in Dhela Toli under
Argora Police Station in the house of Manoj Sinha where accused,
Kishnadeo Prasad is living with other criminals, Subhash Singh of
Kadamkuan, who are committing crime in the town regularly and where
the criminals are keeping theft articles and other illegal arms and
ammunitions. Then, he along with other police officers named in the F.I.R.
left for the said place and reached Dhela Toli at about 4.15 p.m. in the
evening. Seeing the police jeep, 2-3 persons started running away from
the house. The police chased and caught hold of one person, who
disclosed his name as Kishnadeo Prasad and stated that he had taken the
house on rent from Manoj Sinha, who resides at Hinoo, Ranchi. Then, the
said Manoj Sinha was informed and called him from his house and
thereafter he came to Dhela Toli at 6.30 p.m. in the evening. Then, in
presence of the local witnesses, Prem Singh and Sushil Kumar both of
Dhela Toli, was searched and from the northern side room in which
Kishnadeo Prasad resides one tape recorder, one V.C.P., regulator, Beltron
T.V., stabilizer, gas burner, ceiling fan and tools and other things were
recovered. Another room which was connected with this room about
which Kishnadeo Prasad stated that Sushil, Puttu @ Guddu were living
and they had gone out. They also recovered V.I.P. Attache, containing 6
country made pistol, 1 revolver, 16 cartridges of .315 bore, 2 used
cartridge of 315 bore, 4 cartridge of 380 bore and hand grenade on which
O.K. 1982-10-36-MMK-1 was scribed, a bawl of silver, stereo of Soni,
Yasika camera, 8 bangles, green churi, payal, for which the accused,
Kishnadeo Prasad had no explanation nor Manoj Sinha gave any
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explanation. The police in presence of independent witnesses prepared a
seizure-list of the articles i.e. arms and ammunitions. On inquiry,
Kishnadeo Prasad told him earlier he along with his wife and children
were living in New A.G. Co-operative Colony in the house of Arvind Ram
in day time and in the night they come to this room. Since Shaila Devi
looks after his articles which were kept with her. The I.O. has stated that
Subash Sinha a criminal of Patna in collusion with Kishnadeo Prasad,
Shaila Devi, Puttu @ Guddu are committing crime in the town and are
keeping the arms and ammunitions and looted articles under the protection
of Shaila Devi and Kishnadeo Prasad in the house of Manoj Sinha.
7. On the basis of said written report, the police registered a case
under Sections 412, 212 of the Indian Penal Code and 25(1-B), 26 and 35
of the Arms Act and 35 of the Arms Act and 3/5 Explosive Substance Act
and after investigation submitted charge-sheet under the aforesaid
Sections.
8. Since, the case was exclusively triable by a court of Sessions, the
learned Chief Judicial Magistrate after taking cognizance of the case
committed the case to the court of sessions and subsequently the case was
transferred and tried by the 7th Additional Judicial Commissioner, who
passed the aforesaid judgment and found the appellants guilty as aforesaid.
9. It appears that in course of trial the prosecution has examined 7
witnesses. P.W.1 Banshidhar Prasad, ASI, P.W.2, Ganesh Kumar Singh
A.S.I. Argora Police Station, P.W.3, Subhash Prasad Gupta, P.W.4, Nakul
Dubey-informant, P.W.5, Prem Singh-seizure-list witness, P.W.6, Naresh
Kumar Sinha and P.W.7, Kameshwar Singh is the Investigating Officer of
the case.
10. P.W.4-informant has fully supported the prosecution case, as
disclosed by him, in the F.I.R. and stated that on the date of occurrence i.e.
on 3.1.97 while investigating the Argora P.S.Case No. 1/97 registered
under Sections 302, 307 and 427 of the Indian Penal Code and 27 of the
Arms Act he learnt that in the house of Manoj Sinha at Dhela Toli where
criminals are living and they have kept illegal arms and ammunitions and
theft articles in that house. Then, he along with other police officers and
armed forces went to the house of Manoj Sinha at Dhela Toli. When they
reached near the house of Manoj Sinha then, 2-3 persons started running
away from the house. The police chased and caught hold of one person,
who disclosed his name as Kishnadeo Prasad and stated that he had taken
the house on rent from Manoj Sinh, who resides at Hinoo, Ranchi. Then,
the said Manoj Sinha was informed and called him from his house and
thereafter he came to Dhela Toli at 6.30 p.m. in the evening. Then, in
presence of the neighbouring witnesses, Prem Singh and Sushil Kumar
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both of Dhela Toli, the house was searched and illegal arms and
ammunitions and theft articles were seized. A seizure-list was prepared in
presence of independent witnesses. Copy of which was given to
Kishnadeo Prasad. He proved his signature on the seizure-list, which is
marked as Ext-1/1. He also proved the signature of Kishnadeo Prasad,
which is marked as Ext. 1/2 and Manoj Sinha, which is marked as Ext.
1/3. In the northern room they stated that Mithilesh, Bachha Jee, Sushil
reside and at the time of seizure wife of Kishnadeo Prasad was present in
that room in which V.C.P., T.V. and other articles were recovered and
from the V.I.P. Attache 6-7 country made pistols, one revolver and bomb
were recovered. Both the rooms were connected with each other. The
second seizure-list was also proved by the informant, which is marked as
Ext. 2 and his signature, which is marked as Ext. 2/1 and the signature of
Manoj Sinha and Kishnadeo Prasad, which are marked as Ext. 2/2 and 2/3.
The informant presented all the seized articles in a seal cover, which was
opened in Court and the material exhibits i.e. 6 country made pistols and
revolver, cartridge and bomb were found in the seal cover. The informant
further stated that the two rooms which was searched, were connected by
common door and at the time of seizure the door was opened and they
were in possession of Kishnadeo Prasad and his wife. Although,
Kishnadeo Prasad stated that the second room which belonged to
Mithilesh, Baccha Jee, who are absconding. He also stated that he along
with his wife as well as Sushil Sonar, Saroj, Mithilesh, Bacha Jee
previously used to live in New A. G. Co-operative Colony of Arvind
Ram’s house and one month back he left that house along with his wife
and children and came here. He proved his written report, which is as Ext.
3 and his signature as Ext. 3/1. He proved the writing on the written
report, which was sent to Doranda Police Station. All the arms and
ammunitions were recovered, which were marked as material exhibits II to
XXX.
In his cross-examination, he stated that Manoj Sinha told him that
Mithilesh and Kishandeo Prasad are living in this house as tenants. He
further stated that Manoj Sinha was not present at the place of occurrence
and he was called by telephone from his house at Hinoo. Witnesses of
surrounding also stated that the house owner, Manoj Sinha resides at
Hinoo. He also stated that the arms and ammunitions were sent for
examination and they were found operational.
11. The other witness, P.W.1 Banshidhar Prasad, ASI stated that on
3.1.1997, he was posted at Argora Police Station. When, Officer-in-
charge, Nakul Dubey received secret information that some of accused of
murder case are staying in the house of Manoj Sinha at Dehla toli. Then,
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he along with other police officers went to the house of Manoj Sinha at
about 4.15 P.M. and when they reached near the house of Manoj Sinha
then, 2-3 accused persons started running away. At this, the police party
chased and arrested one person, who disclosed his name as Kishnadeo
Prasad. He further stated that he is a tenant of Manoj Sinha, who resides at
Hinoo. Then, Manoj Sinha was called by telephone and then in presence
of two local witnesses the house was searched from where a hand granade,
6 country made pistols, 16 live cartridges of 315 bore, 2 used cartridges of
315 bore, ornaments and clothes were recovered. The seizure-list was
prepared in his presence. The house owner, Manoj Sinha or the tenant,
Kishnadeo Prasad could give no explanation of the aforesaid arms,
ammunitions and articles. Copy of seizure-list was given to the accused
persons in Court.
In his cross-examination, he stated that the telephone number of
Manoj Sinha was taken from Kishnadeo Prasad. Then, he was called from
his house at Hinoo. He also stated, in his cross-examination, that Manoj
Sinha was not residing in the house from where the recovery was made.
He further stated in his cross-examination, that there is one room on the
western side, which was in possession of the landlord, Manoj Sinha, which
was found closed and nothing was recovered from that room and northern
room, which was in possession of the accused, Kishnadeo Prasad and his
wife, Shaila Devi. The second northern room is said to be in possession of
Mithilesh, Bachha Jee and their friends. Both rooms were interconnected
and were opened at the time of seizure.
12. The other witness P.W.2, Ganesh Kumar Singh also stated that at
the time of occurrence he was under training of A.S.I at Argora Police
Station received secret information at 3 p.m. that criminals are staying in
the house of Manoj Sinha at Dehla toli. Then, he along with other police
officers went to the house of Manoj Sinha at about 4.15 P.M. where
accused Kishnadeo Prasad was arrested while running away with others
and he stated that he is tenant of Manoj Sinha, who resides at Hinoo.
Then, Manoj Sinha was called by telephone and then in his presence arms
and ammunitions were recovered. The seizure-list was prepared in his
presence. A copy of which was given to him and also to house owner,
Manoh Sinha.
In his cross-examination, he stated that the recoveries were made
from the room of Kishnadeo Prasad and the 2nd continuous room
connected by another door which was opened and stated by Shaila Devi
the second room in possession of Sushil, Saroj and Baccha Jee.
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13. The other witness, P.W.3, Subhash Prasad Gupta also stated the
same thing and supported the seizure made from the room of accused,
Kishnadeo Prasad and Shaila Devi.
At para 5, in his cross-examination, he stated that the house owner,
Manoj Sinha was residing at Hinoo from where he was called.
14. The other witness, P.W.5, Prem Singh, he proved his signature on
the seizure-list, which is marked as Ext 2/4 and ¼.
15. The other witness, P.W.6, Naresh Kumar Sinha stated that he is
son of the neighbour of Kishnadeo Prasad.
16. The other witness, P.W.7, Kameshwar Singh is the Investigating
Officer of the case stated that on 3.1.1997 he received confidential
information while investigating of Argora P.S.Case No. 1/97 under
Section 302,306,426,34 of the Indian Penal Code and 26 of the Arms Act
of some criminals are residing in the house of Manoj Singh with
Kishnadeo Prasad at Delha Toli. Then, they made a raiding party and
raided the house. When they reached there then 2-3 accused persons
started running away. Then, they were chased and one accused was
arrested, who disclosed his name as Kishnadeo Prasad and he told that he
is a tenant of Manoj Sinha, who resides at Hinoo. Then, Manoj Sinha was
called by telephone and then in presence of independent witnesses his
house was searched and from two rooms in his possession and which was
interconnected and opened the arms and ammunitions were recovered . On
the basis of which F.I.R. was registered. He proved the formal F.I.R which
is marked as Ext. 4. Then, investigation was entrusted to him. He made an
inspection the place of occurrence and recorded the statement of the
witnesses and send the arms and ammunitions to F.S.L. and after receiving
the report of F.S.L., which is proved as Ext.-6 and after the supervision by
Superior Authority he submitted charge-sheet in the case.
At para 9, in his cross-examination, he stated that Manoj Sinha is a
student and he has got no criminal history and resides at Hinoo about 5
kilometers away from his rented house at Dehla toli at Argora and the
raiding party reached at the place of occurrence Manoj Sinha was not
present there and after taking his telephone number from Kishnadeo
Prasad called from Hinoo’s house. The recoveries were made through two
northern rooms, which were in possession of Kishnadeo Prasad and
Shaila Devi and they stated that the 2nd room which was connected and
opened it belongs to Sushil, Saroj,Mithilesh and Baua Jee.
17. The other witness, P.W.8, Ravindra Pd. has proved the sanction
order for prosecution under the Arms Act, which is marked as Ext. 10.
18. The defence has also examined as D.W., Ram Ayodhya Singh
Arya, a retired Government officer, father of the accused, Manoj Sinha,
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who stated that the delha toli house situated in khata no. 212, plot no. 2045
E, area 6 kathas, 9 chhatak and 10½ ft. it belongs gto him and he has got
constructed kacha house of six rooms with asbestos roof and he himself is
residing with his children at Hinoo. He had given Dhela toli house on rent.
He proved his sale deed, which is marked as Ext. A. He stated that on the
date of occurrence in 1997 his son, Manoj Sinha was a school student and
the house actually belongs to him.
19. Thus, from the aforesaid evidences as discussed above, it is
apparent although the house belongs to Manoj Sinha and the same was
constructed by his father, Ram Ayodhya Singh Arya and his son himself
was student at that. The Investigating Officer, who investigated the case as
P.W.7 stated that at the time of occurrence Manoj Sinha was a student and
there is no criminal history against him and he was also not present at the
place of occurrence i.e. tenanted house, which was in the possession of
accused, Kishnadeo Prasad and Shaila Devi. The accused, Manoj Sinha
had no knowledge that they were keeping theft articles as well as some
criminals in their house.
20. It is important to note that all the witnesses have stated that
Kishnadeo Prasad along with other accused persons were living at New
A.G. Co-operative Colony and just one month back he left this house. In
that view of the matter, it cannot be inferred that Manoj Sinha had
knowledge that he had given the house to Kishnadeo Prasad and Shaila
Devi, who have got nexus with the criminals and are hardened criminals
and keeping their arms and ammunitions and theft articles in his house.
Hence, the appellant, Manoj Sinha ( In Cr.Appeal No. 462/01) is given
benefit of doubt and acquitted from the charges levelled against him.
21. In the result, the appeal filed by appellant, Manoj Singh ( in Cr.
Appeal No. 462/01) is allowed and his conviction and sentence under
Section 212 of the Indian Penal Code passed by Shri D.K.Lal, VIIth
Additional Judicial Commissioner, Ranchi in S.T. No. 419/97 with S.T.
No. 185 of 1998 is set aside.
22. The appellant, Manoj Singh ( in Cr. Appeal No. 462/01) is on bail,
he is released from the bondage of his bail bond.
23. As far as the appeal filed by Kishnadeo Prasad and Shaila Devi is
concerned, there are sufficient evidence that the recovery of arms and
ammunitions and theft articles were made in their presence from the room
under their possession. Two rooms were interconnected and was opened at
the time of seizure the accused, Shaila Devi was present inside and
nobody else was present, so both rooms were in possession of accused
Kishnadeo Prasad and Shaila Devi.
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24. In that view of the matter, it has been proved beyond reasonable
doubt that these two appellants, Kishnadeo Prasad and Shaila Devi were
keeping the criminals with them and also they had kept the arms and
ammunitions and theft articles in their room, which was in their possession
and the seizure was proved by the witnesses, hence I find no merit in the
appeal filed by the appellants, Kishnadeo Prasad and Shaila Devi ( in Cr.
Appeal No. 458 of 2001) and their conviction and sentence is sustained
and the appeal is dismissed.
25. The appellants, Kishnadeo Prasad and Shaila Devi ( In Cr. Appeal
No. 458 of 2001) are on bail. Their bail bond is cancelled and learned trial
court is directed to issue warrant of arrest against them for serving out the
sentences.
[ Pradeep Kumar,J]
Jharkhand High Court, Ranchi
The 10/ 03 /2010
jk/NAFR