JUDGMENT
Anwar Ahmad, J.
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1. Both these criminal appeals arise out of the same Sessions Trial No. 28 of 2001 and hence they are being disposed of by this common judgment.
2. Both these criminal appeals arise out of the judgment dated 26.5.2003 and order dated 27.5.2003 passed by Shri Birendra Kumar Singh. Ist Additional Sessions Judge. Saharsa in Sessions Trial No. 28/01. The learned Additional Sessions Judge has convicted all the five appellants under Sections 399 and 402 of the Indian Penal Code (for short, IPC). He has sentenced all the appellants to undergo R.I. for seven years for the offence under Section 399 IPC. He has passed no separate sentence for the offence under Section 402 IPC. The learned Additional Sessions Judge has further convicted two appellants namely, Sulo Thakur and Abbas Mian for the offence under Section 25(1)(b) of the Arms Act and sentenced them to undergo R.I. for one year with the direction that the sentences will run concurrently.
3. Ram Sahay Roy, Officer Incharge of Bihra Police Station, Saharsa lodged F.I.R. on 17.6.2000 alleging therein that on that day at 11 PM in the night he along with S.I. Golden Kumar and Thana reserved guard proceeded for patrolling and during that course at 1.30 AM in the night was proceeding towards village Arna ahead of Minha. During that course he saw some persons sitting and smoking Biri in the High School, Minha situate by the side of the road in a lonely place. After Arna village he sent a wireless message to the district control and O/C, Sadar of Saharsa for help in the raid. On request, after a short while, Daya Nand Jha, O/C Sadar Saharsa along with SI Ajay Kumar, SI Jay Shanker Mishra and armed force reached there. At about 2 PM in the night he along with aforesaid force reached in the premises of the school and saw 10-12 persons sitting in the verandah of the school and those persons seeing the police started fleeing away but five persons were arrested. In the meantime, on the direction the village chaukidar Dukha Mian alone with the villagers namely, Satyendra Kumar, Md Rahman and Md Mustakim reached there. On search a country made pistol was recovered from the waist of a miscreant who disclosed his name Sulo Thakur. On opening the pistol a cartridge was recovered. On further search, two live cartridges of 315 bore were recovered from the waist of another miscreant who disclosed his name Abbas Mian. On search of three other miscreants who disclosed their names Kalar Mian, Sikandara Sada and Ganesh Risideo, no incriminating article was recovered. The arrested persons disclosed the name of their associates namely, Shanker Kamat, Lakshmi Mukhiya, Chandeshwari Mukhiya, Mohan Sah, Manzoor Mian, Radhe Yadav, Kailu Musahar and Amol Jha who succeeded in fleeing away. The arrested miscreants also disclosed that they were sitting, eating and drinking in the school and were making a plan for committing dacoity. Pieces of Biri and cigarette, empty polythene of wine and four danda were recovered from the verandah. Regarding recovered arms and ammunition the miscreants could not furnish satisfactory reply and hence those arms were seized in presence of the aforesaid independent witnesses and a seizure list was accordingly prepared. All the five accused persons were arrested. Bihra P.S. Case No. 42/2000 was registered under Sections 399 and 402PC and under Section 25(1)(b) of the Arms Act.
4. After investigation chargesheet was submitted under the aforesaid sections against seven accused persons including the appellants. Cognizance was taken. The case was committed to the court of sessions.
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5. Charges were framed under Sections 399 and 402 IPC and also under Sections 25(1)(b) and 26 of the Arms Act against seven accused persons including the appellants and Shanker Kamat and Mohan Sah. All the seven accused persons faced trial. After trial two accused namely, Shanker Kamat and Mohan Sah were acquitted and hence five accused persons who are appellants were convicted and sentenced as stated above.
6. The defence case is that no occurrence as alleged had taken place and no recovery of arms and ammunition was made. The further case is that appellants were arrested not in the premises of Minha High School and they were arrested from other places. The further case is that appellants are innocent and they have falsely been implicated in this case.
7. In order to prove the case the prosecution has examined altogether eight witnesses in this case. The defence has also examined four witnesses.
8. PW-1 is Md. Mustakim. PW-2 is Md Rahman. PW-3 is Satyendra Kumar. All these three witnesses are independent witnesses on the point of raid, search and seizure. They have identified their signatures on the seizure lists (Ext.I, Ext. I/1 and Ext.I/2). They turned hostile and stated that their signatures were taken on a blank piece of paper. The prosecution, therefore, declared them hostile and thereafter drew their attention towards the statements made before the police that raid was conducted in their presence, search was also made in their presence and country made pistol with a live cartridge was recovered from the possession of the appellant Sulo Thakur and two live cartridges were recovered from the possession of the appellant Abbas Mian but they have denied to have made such statement I.O. Golden Kumar (PW-8) stated that these witnesses made statements before him supporting the raid, search and seizure.
9. PW-4 is Jay Shanker Mishra, SI of Town P.S., Saharsa. PW-5 is Ajay Kumar, SI of Sadar P.S. Saharsa. PW-6 is Daya Nand Jha, Officer Incharge of Sadar P.S. Saharsa. All these three witnesses on receipt of the wireless message from Ram Sahay Roy, O/C of Bihra P.S. for help proceeded along with armed force from the police station and met him at village Arna. They stated that thereafter they with the O/C of Bihra, SI and police force of Bihra proceeded to conduct raid and in that course reached the premises of Minha High School where the miscreants seeing them started fleeing away but five miscreants who are appellants here were arrested and they disclosed the name of their associates who succeeded in fleeing away and also stated that they had assembled there to make a plan for committing dacoity. They also stated that on search a country made pistol with a cartridge was recovered from the possession of the appellant Sulo Thakur and two live cartridges from the possession of appellant Abbas Mian.
10. PW-7 is Ram Sahay Roy, Officer Incharge of Bihra Police Station. He is the informant of this case. He stated that on 16.6.2000 he along with SI Golden Kumar and Thana reserved guard proceeded on night patrolling. During that course he reached in front of High School Minha and found some persons smoking Biri in the verandah of the school. He proceeded ahead and reached village Arna from where he sent a wireless message to the district control room and O/C, Sadar, Saharsa requesting for help. After a short while, Daya Nand Jha, Officer Incharge of Sadar Saharsa along with SI Ajay Kumar and SI Jay Shanker Mishra and armed Page 2073 force reached there. Thereafter the informant along with the aforesaid police officials and force reached the premises of High School, Minha. Seeing the police force miscreants started fleeing away but five miscreants were arrested. He stated that in the meantime, local Chaukidar along with some villagers reached there. He further stated that in presence of three independent witnesses he made body search of the arrested miscreants and recovered a country made pistol from the waist of appellant Sulo Thakur and after opening the pistol one cartridge was recovered. He further stated that two live partridges were recovered from the possession of Abbas Mian. He stated that he prepared the seizure list (Ext.2) and arrested five accused persons. He has proved the recovered and seized pistol and cartridges. During his evidence in court the recovered and seized pistol and cartridges were produced in court and he proved them to have been recovered in the raid. The pistol has been marked Material Ext. I and cartridges Material Ext.II, II/1. This witness has further proved the fardbeyan (Ext.3), formal FIR (Ext.4).
11. PW-8 is Golden Kumar, SI of Bihra P.S. He stated that he accompanied the officer incharge in the raid and has supported the case. He is also the I.O. of this case. He stated that he made investigation and during that course recorded the statement of the witnesses. He has given the details of the place of occurrence. He has proved the forwarding report of arms and ammunition sent to the Sergeant Major, Police Line, Saharsa. His forwarding report has been marked Ext.5. He stated that he received the report of the sergeant major (Ext.6).
12. Additional P.P. on behalf of the State submitted that five witnesses who are police officials, have supported the case of raid, arrest of the appellants on the spot assembled in the premises of Minha High School for committing dacoity and recovery of a country made pistol with a live cartridge from the possession of the appellant Sulo Thakur and two live cartridges from the possession of the appellant Abbas Mian. He further submitted that raid, search and seizure were made in the presence of three witnesses who were examined in this case but they turned hostile while admitting their signatures on the seizurelist. He submitted that the prosecution has proved the case beyond all reasonable doubts and hence, these appeals are fit to be dismissed.
13. The learned lawyer appearing on behalf of the appellants submitted that prosecution has failed to prove the case and hence appellants are entitled to be acquitted. The learned lawyer submitted that four witnesses have been examined on behalf of the defence.
14. DW-1 is Ashok Yadav. He stated that on 16.6.2000 he was sitting on a Chabutara under a Bar tree in village Arna when appellant Sulo Thakur came on a cycle. He further stated that at that time at about 10 – 10.30 O’Clock village Chaukidar came there and arrested Sulo Thakur and took him to the Bihra Police Station and falsely implicated in this case. DW-2 is Shankar Sah. He stated that police arrested Ganesh from his house and falsely implicated in this case. DW-3 is Wali Rahman. He stated that police arrested Abbas Main from his house and also falsely implicated him in this case. DW-4 is Fuldeo Yadav. He stated that he has got his house at a distance of 200-300 yards from Minha High School. He stated that police never arrested any miscreant or dacoit from the premises of the school.
15. The learned defence lawyer, as such, submitted that the appellants were not arrested in the Minha School as alleged but they were arrested from their houses or Page 2074 some other places. He further submitted that no occurrence as alleged had taken place and appellants have falsely been implicated in this case.
16. The learned lawyer for the appellants submitted that the offence under Sections 399 and 402 IPC has not been proved. He referred to the evidence of the prosecution witnesses and submitted that as per their evidence appellants disclosed that they had assembled in the premises of the school for the purpose of committing dacoity. He submitted that this evidence is inadmissible in law and apart from this evidence, there is no evidence that appellants had assembled there for the purpose of committing dacoity. He submitted that mere recovery of pistol and cartridges does not make out a case under Sections 399 and 402 IPC, In support his contention he referred to a decision in the case of Ananta Mahanto v. State of Orissa .
17. The learned lawyer for the appellants further submitted that the offences under Sections 25(1)(b) and 26 of the Arms Act are not proved as the recovery of the pistol and cartridges is based on the evidence of the police officials alone and no independent witness has supported the case. In support of his contention he referred to a decision in the case of Sans Pal Singh v. State of Delhi 1999 Cr.L.J. 19.
18. The learned lawyer for the appellants, therefore, submitted that the prosecution has failed to prove the case on the basis of facts and also on the basis of law and therefore, prayed that these appeals be allowed.
19. As discussed above, five witnesses who are police officials have supported the case of raid, arrest, search and seizure. The raid, search and seizure were made in presence of three independent witnesses who are PWs 1, 2 and 3. The independent witnesses have turned hostile but they admitted their signatures on the seizure list. Their attention has been drawn towards the statements made before the police under Section 161 supporting the case and contradictions have been brought on record by the evidence of I.O. As such I find and hold that the prosecution has proved the case beyond all reasonable doubts.
20. As per the case and evidence, appellants along with others at odd hours of the night were found sitting, smoking in the verandah of the Minna High School. On raid five appellants were arrested and others succeeded in fleeing away. A country made pistol with a live cartridge was recovered from the possession of appellant Sulo Thakur and two live cartridges from the possession of appellant Abbas Mian. Empty polythene of wine and ends of Biri and cigarette were also found. This shows that appellants and others had taken wine there. Appellants who were arrested on spot disclosed that they had assembled there and were making planning for committing dacoity. Their statements that they had assembled there and were making plan to commit dacoity were inadmissible in law. To constitute offence under Section 399/402 IPC the prosecution has to prove that appellants had assembled for the purpose of committing dacoity and they were making planning for the same. In the present case, there is nothing which goes to prove that the assemblage of the appellants and others was for the purpose of committing dacoity and they were making planning for the same. Mere recovery of pistol and cartridges is not enough to constitute offence under Sections 399 and 402 IPC. In the present case, assemblage of the appellants and others may be for making merry or to commit offence other than dacoity. So, in my view, offence under Sections 399/402 IPC is not proved and it fails.
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21. So far the offence under the Arms Act is concerned, learned lawyer for the appellants referred to the decision reported in 1999 Cr.L.J. 19 (supra) in which their Lordships held” From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask any public witness to be witness at the time of the search of the accused. Like-wise, P.W.6, Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we Rot to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged.”
22. This decision which the learned lawyer for the appellants referred to in support of his argument is not at all applicable in the facts and circumstances of the present case.
23. In the present case, raid, search and seizure were made in presence of the three independent witnesses namely, Md Mustakim, Md. Rahman and Satyendra Kumar and they have been examined in this case as PWs 1, 2 and 3. Of course, they have turned hostile and did not support the case. Even then, they have admitted their signatures on the seizure list. They have supported the case in their statement before the I.O. also.
24. Considering the unimpeachable evidence of five witnesses who are police officials and participated in the raid, together with the evidence of the three independent witnesses who turned hostile, I find and hold that the prosecution has proved its case of recovery of a country made pistol and a live cartridge from the possession of appellant Sulo Thakur and two live cartridges from the possession of appellant Abbas Mian.
25. As discussed, above, all the appellants are found and held not guilty under Sections 399 and 402 IPC and hence they are acquitted thereunder. Further, I find and hold two appellants namely, Sulo Thakur and Abbas Mian guilty under Section 25(1)(b) of the Arms Act and hence their conviction and sentence thereunder is upheld.
26. In the result, both these appeals are allowed in part.
27. Appellants Sulo Thakur and Abbas Mian are directed to surrender in the court below to suffer the sentences of imprisonment within fifteen days from the date of the judgment. In case the appellants do not surrender, the court below is directed to take coercive measure for their arrest. So far appellants Kalar Ram, Sikandara Sada and Ganesh Risideo are concerned, they are discharged from the liabilities of their bail bonds.
