Cr. Appeal No.511 of 2002
Against the judgment of conviction and order of sentence dated
29.07.2002
and 03.08.2002 respectively passed by the Additional Sessions
Judge, F.T.C. No.II, East Singhbhum, Jamshedpur in S.T.No.300 of
2000.
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Manzar Hussain. ... ... ... ... ... ...Appellant
-Versus-
The State of Jharkhand. ... ... ... ... ...Respondent
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For the Appellant: M/s A.K.Chaturvedi & Md. Zaid Ahmad,
Advocates.
For the State: Mr. Tapas Roy, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE D.K.SINHA
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By Court
26.04.2010 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 Arms 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 father and maternal uncle had obtained bail. The informant
in the same sequence further 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, 1st 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 kind 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 S. 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 Akhtar 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 Act 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 Rahman @
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.
[D.K.Sinha,J.]
Jharkhand High Court, Ranchi
Dated the 26.04.2010.
P.K.S./A.F.R.