{"id":189989,"date":"2010-04-26T00:00:00","date_gmt":"2010-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manzar-hussian-vs-state-of-jharkhand-on-26-april-2010"},"modified":"2017-09-14T16:08:23","modified_gmt":"2017-09-14T10:38:23","slug":"manzar-hussian-vs-state-of-jharkhand-on-26-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manzar-hussian-vs-state-of-jharkhand-on-26-april-2010","title":{"rendered":"Manzar Hussian vs State Of Jharkhand on 26 April, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Manzar Hussian vs State Of Jharkhand on 26 April, 2010<\/div>\n<pre>                             Cr. Appeal No.511 of 2002\n        Against the judgment of conviction and order of sentence dated\n        29.07.2002<\/pre>\n<p> and 03.08.2002 respectively passed by the Additional Sessions<br \/>\n        Judge, F.T.C. No.II, East Singhbhum, Jamshedpur in S.T.No.300 of<br \/>\n        2000.\n<\/p>\n<p>                             &#8212;&#8212;&#8212;&#8212;\n<\/p>\n<pre>        Manzar Hussain.      ...      ...   ...    ...    ...   ...Appellant\n                                      -Versus-\n        The State of Jharkhand. ...         ...    ...    ...   ...Respondent\n                             ------------\n        For the Appellant:            M\/s A.K.Chaturvedi &amp; Md. Zaid Ahmad,\n                                      Advocates.\n        For the State:                Mr. Tapas Roy, A.P.P.\n                             -------------\n                             PRESENT\n        HON'BLE MR. JUSTICE D.K.SINHA\n                             -------------\nBy Court\n26.04.2010             This appeal is directed against the judgment of conviction\n<\/pre>\n<p>        dated 29.07.2002 and order of sentence dated 03.08.2002 recorded by Shri<br \/>\n        Akhileshwar Jha, Additional Sessions Judge, F.T.C.-II, Jamshedpur in<br \/>\n        Sessions Trial No. 300 of 2000 by which the sole appellant was held guilty<br \/>\n        under Section 25(1-B) of the Arms Act and was sentenced to undergo<br \/>\n        rigorous imprisonment for three years and to pay fine of Rs.1,000\/- with<br \/>\n        default stipulation to undergo simple imprisonment for a period of 3 months.\n<\/p>\n<p>        2.             The prosecution story in short was that the informant P.W. 15<br \/>\n        Rahul Sawa delivered his Fard Bayan on 09.02.2000 at Jubilee park,<br \/>\n        Jamshedpur stating that his father Hari Prasad Sawa (since deceased) had<br \/>\n        proceeded with his Maruti Steam Car at about 6 a.m. to Jubilee park for a<br \/>\n        walk as usual in the morning.       The informant after some time received<br \/>\n        telephone call that some unknown person had committed murder of his father<br \/>\n        by firing shot. He immediately went to Jubilee park upon such information<br \/>\n        and found his father lying in the pool of blood, which was coming out from<br \/>\n        the injuries inflicted in his head and that the police had already arrived there.<br \/>\n        Disclosing the genesis, the informant stated that his father Hari Prasad Sawa<br \/>\n        was the Director in the &#8216;Akash Builders&#8217;, Golmuri and the other accused<br \/>\n        persons Krishna Bihari Sinha, Rakesh Sinha, Amresh Sinha were also the<br \/>\n        Directors in the said firm. Some differences had developed amongst the<br \/>\n        Directors for the last 3 months to which series of cases were instituted<br \/>\n        against each other including against his father and maternal uncle Pradeep<br \/>\n        Churiwala in which they had obtained bail. A Title Suit No.102 of 2009 was<br \/>\n        also filed by his father-deceased before the Court of Sub-Judge and in that<br \/>\n        suit his father had obtained temporary injunction. A separate G.R.No.2901 of<br \/>\n        1999 (Criminal case) was instituted by Rakesh Sinha against his father and in<br \/>\n that case also his father and maternal uncle had obtained bail. The informant<br \/>\nin the same sequence further alleged that the accused persons had terrorized<br \/>\nthe employees of &#8216;Akash Builders&#8217; and had also terrorized his father (since<br \/>\ndeceased) in various ways. To be more specific the informant alleged that the<br \/>\naccused persons had threatened his father at Beldih Club asking to keep<br \/>\nhimself away from the dispute, failing to which he would be eliminated. For<br \/>\nsuch chain of events the informant had reason to believe that the accused<br \/>\nKrishna Bihari Sinha, Rakesh Sinha, Amresh Sinha in prosecution of<br \/>\ncriminal conspiracy had given effect to the alleged occurrence by committing<br \/>\nmurder of his father.\n<\/p>\n<p>3.             Learned Counsel Mr. Zaid Ahmad submitted that on the basis<br \/>\nof statement of the informant P.W. 15, the F.I.R. was instituted against only<br \/>\nthree accused persons, namely Krishna Bihari Sinha, Rakesh Sinha &amp;<br \/>\nAmresh Sinha. However, Investigating Officer after investigation submitted<br \/>\ncharge-sheet under Sections 302\/34 of the Indian Penal Code against Manjar<br \/>\nHussain (Appellant), Liyakat Ali and Javed Akhtar and against the remaining<br \/>\naccused Krishna Bihari Sinha, Rakesh Sinha, Amresh Sinha &amp; Pradeep<br \/>\nChuriwala materials could be       collected for the alleged offence under<br \/>\nSections 302\/120B of the Indian Penal Code. In the same charge-sheet it was<br \/>\nstated that there were materials against the appellant herein Manjar Hussain<br \/>\nfor the offence under Section 27 of the Arms Act. Accordingly, the charges<br \/>\nwere framed against the appellant Manjar Hussain and two other Liyakat Ali<br \/>\nand Javed Akhtar under Sections 302\/34 of the Indian Penal Code and<br \/>\nseparate charge under Sections 302\/120B of the Indian Penal Code was<br \/>\nframed against the other 4 accused Krishna Bihari Sinha, Rakesh Sinha,<br \/>\nAmresh Sinha &amp;          Pradeep Churiwala. Further, exclusive charge under<br \/>\nSection 27 of the Arms Act was framed against the appellant             Manjar<br \/>\nHussain. In course of trial, as many as 21 witnesses were produced and<br \/>\nexamined on behalf of the prosecution and after a detailed judgment all the<br \/>\naccused were acquitted except the appellant Manjar Hussain, who was held<br \/>\nguilty for the offence under Section 25(1-B) of the Arms Act and was<br \/>\nsentenced to undergo rigorous imprisonment for three years and fine of<br \/>\nRs.1,000\/- with default stipulation, however, acquitted from the charge under<br \/>\nSection 302\/34 of the Indian Penal Code.\n<\/p>\n<p>4.             The learned Counsel assailed the impugned judgment on the<br \/>\nground that in course of investigation, the appellant Manjar Hussain and<br \/>\nJaved Akhtar were arrested and it was alleged that on their confessional<br \/>\nstatements a country made revolver was recovered with 4 live cartridges<br \/>\nloaded therein. It was further stated that 4 used cartridges ( empty cartridges)<br \/>\nwere also recovered on their pointing out.\n<\/p>\n<p> 5.            Learned Counsel explained that according to the prosecution<br \/>\ncase, a seizure list was prepared of the seizure of country made revolver, 4<br \/>\nlive cartridges and 4 empty cartridges in presence of the witness P.W. 9 Ziaur<br \/>\nRahman @ Baban &amp; P.W. 10 Nasimuddin and one Sanatan (not examined),<br \/>\nwho put their signatures on the seizure list (Ext.21). The prosecution had<br \/>\nproduced the seizure witness Ziaur Rahman @ Baban &amp; Nasimuddin whose<br \/>\nstatements were recorded under Section 164 Cr.P.C. before Shri K.K.Singh,<br \/>\nJudicial Magistrate, 1st Class, wherein, it was stated that they had admitted<br \/>\nthe seizure of the firearms and ammunitions in their presence but they did not<br \/>\nsupport in their substantial evidence, any kind of seizure of firearm or<br \/>\nammunition in their presence by the police and they were declared hostile, as<br \/>\nsuch, under the circumstances, seizure of firearm and ammunition could not<br \/>\nbe proved against the appellant Manjar Hussain, the learned Counsel added.<br \/>\nThe learned Judicial Magistrate before whom the statements of these two<br \/>\nwitnesses were recorded under Section 164 Cr.P.C. was produced and<br \/>\nexamined before the Trial Judge and the learned Judicial Magistrate<br \/>\nsupported that these two witnesses had admitted in their respective<br \/>\nstatements about the seizure of firearm and ammunition pursuant to the<br \/>\nconfessional statement of the appellant Manjar Hussain but the conviction of<br \/>\nthe appellant for the alleged offence under Section 25(1-B) Arms Act was not<br \/>\nsustainable under law for the reasons that the statement of P.W. 9 &amp; 10<br \/>\nbefore the Magistrate was not a conclusive evidence in nature and in this<br \/>\nconnection reliance has been placed on the decision of Bombay High Court,<br \/>\nreported in 1999 Cr.L.J. 1936. A Division Bench of Bombay High Court in<br \/>\nsimilar situation observed that the statement given under Section 164 even if<br \/>\nproved, can only be accepted as substantive evidence. A statement under<br \/>\nSection 164 Cr.P.C. can be used to cross-examine the person who made it<br \/>\nand the result may be to show that the evidence of the witness is false. But<br \/>\nthat does not establish that what he stated out of Court under S. 164 is true.<br \/>\nTherefore, the statement of facts recorded under Section 164 Cr.P.C. is used<br \/>\nfor corroboration or contradiction and the Trial Court cannot base its finding<br \/>\nsustaining the conviction or acquittal of an accused on the statement of a<br \/>\nwitness recorded under Section 164 Cr.P.C. who later on turned hostile and<br \/>\nthe same cannot be treated as substantive evidence. The statement of the<br \/>\nJudicial Magistrate before whom such statements were recorded is also not<br \/>\ngoing to improve the legal position and the Trial Court cannot base<br \/>\nconviction of the accused upon such statement of the Judicial Magistrate.\n<\/p>\n<p>6.            The next point that has been raised by the learned Counsel for<br \/>\nthe appellant is that the alleged recovery of firearms and ammunitions was<br \/>\nmade pursuant to the joint confessional statement of the appellant Manjar<br \/>\n Hussain and the another accused Javed Akhtar and both of them stood<br \/>\ncharged for the offence under Section 27 of the Arms Act but on similar set<br \/>\nof evidence Javed Akhtar was acquitted whereas the present appellant was<br \/>\nconvicted under Section 25(1-B) of the Arms Act without amending the<br \/>\ncharge which was framed under Section 27 of the Arms Act and in that<br \/>\nmanner the appellant was highly prejudiced. He was not event confronted<br \/>\nwith the materials if at all brought on the record during trial in his statement<br \/>\nrecorded under Section 313 Code of Criminal Procedure which could attract<br \/>\nconviction under Section 25(1-B) of the Arms Act.\n<\/p>\n<p>7.             Heard Mr. Tapas Roy, learned A.P.P. on behalf of the<br \/>\nrespondent- State, who fairly admitted that the appellant was acquitted for the<br \/>\ncharge under Section 302\/34 of the Indian Penal Code but was held guilty for<br \/>\nthe offence under Section 25(1-B) of the Arms Act and that the seizure<br \/>\nwitnesses had turned hostile.\n<\/p>\n<p>8.             Having regard to the facts and circumstances of the case, the<br \/>\nshort question that has been raised in the instant case is as to whether<br \/>\nconviction of the appellant was justified under the Arms Act when the<br \/>\nseizure witnesses were unfavourable to the prosecution and did not support<br \/>\nthe seizure of firearms and ammunitions on pointing out by the appellant.<br \/>\nHon&#8217;ble Courts including the Apex Court of India are consistent that the<br \/>\nstatements of the witnesses recorded under Section 164 Cr.P.C. are not<br \/>\nsubstantive evidence in nature and the conviction cannot be based on the<br \/>\nbasis of such statements unless corroborated by any other           substantive<br \/>\nevidence. But in the instant case the seizure witness P.W. 9 Ziaur Rahman @<br \/>\nBaban and P.W. 10 Nasimuddin have denied seizure of any firearm or<br \/>\nammunitions in their presence pursuant to the confessional statement of the<br \/>\nappellant Manjar Hussain and that one Sanatan, who was also made the<br \/>\nseizure witnesses abstained from the witness box for the reasons best known<br \/>\nto the prosecution. In this case, the Judicial Magistrate in whose presence the<br \/>\nstatements of the seizure witnesses were recorded under Section 164 Cr.P.C.<br \/>\nwas also examined before the Trial Judge and he admitted that the witnesses<br \/>\nhad stated the seizure of the firearm and ammunitions in their presence and<br \/>\nhad also admitted that a seizure list was prepared but such statement of the<br \/>\nJudicial Magistrate was neither substantive nor conclusive in nature so as to<br \/>\nwarrant the conviction of the appellant under Section 25(1-B) of the Arms<br \/>\nAct. The appellant was certainly not prejudiced for the reasons that though<br \/>\nthe charge was framed for the graver offence under Section 27 of the Arms<br \/>\nAct but was convicted under Section 25(1-B) of the Arms Act i.e. under<br \/>\nlighter offence. It was pointed out that though the State had preferred appeal<br \/>\nagainst the acquittal of the other accused persons including the appellant for<br \/>\n the charge of murder but the said appeal was dismissed.\n<\/p>\n<p>9.        In the circumstances, I find that the prosecution failed to prove the<br \/>\ncharge as framed under Section 25(1-B) against the appellant beyond the<br \/>\nshadow of all reasonable doubts. I find that the seizure witnesses turned<br \/>\nhostile as became unfaourable to the prosecution as none of P.W. 9 Ziaur<br \/>\nRahman or P.W. 10 Nasimuddin did prove seizure of firearm and<br \/>\nammunitions on pointing out by the appellant in their presence. The third<br \/>\nseizure witness Sanatan abstained from the witness box. I find that the<br \/>\nprosecution miserably failed to prove the fact that pursuant to the<br \/>\nconfessional statement of the appellant, firearm and ammunitions were<br \/>\nrecovered so as to attract the offence under Section 25(1-B) of the Arms Act<br \/>\nand in other words, the charge under said Section could not be proved<br \/>\nbeyond shadow of all reasonable doubts. For the reasons stated, the judgment<br \/>\nof conviction under Section 25(1-B) and order of sentence recorded against<br \/>\nthe appellant needs interference and accordingly the same are set aside in<br \/>\nrelation to Sessions Trial No.300 of 2000. Accordingly, this appeal is<br \/>\nallowed and the appellant Manjar Hussain is acquitted. He is discharged from<br \/>\nthe liability of bail bond in this case.\n<\/p>\n<p>                                                            [D.K.Sinha,J.]<br \/>\nJharkhand High Court, Ranchi<br \/>\nDated the 26.04.2010.\n<\/p>\n<p>P.K.S.\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Manzar Hussian vs State Of Jharkhand on 26 April, 2010 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. &#8212;&#8212;&#8212;&#8212; Manzar Hussain. &#8230; &#8230; &#8230; &#8230; &#8230; [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-189989","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Manzar Hussian vs State Of Jharkhand on 26 April, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manzar-hussian-vs-state-of-jharkhand-on-26-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manzar Hussian vs State Of Jharkhand on 26 April, 2010 - Free Judgements of Supreme Court &amp; 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