Jharkhand High Court
Ravi Nepali vs The State Of Jharkhand ... Opposite ... on 20 November, 2019
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.523 of 2013
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1. Ravi Nepali
2. Binod Yadav ... Petitioners
Versus
The State of Jharkhand ... opposite party
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Mr. D. K. Chakraverty, Advocate
For the State : Mr. Abhay Kr. Tiwari, A.P.P.
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CAV on 08/11/2019 Pronounced on 20 / 11/2019
JUDGMENT
The instant application is directed against the judgment dated 23.03.2013, passed by the learned Principal Sessions Judge, East Singhbhum at Jamshedpur, in Criminal Appeal No.24 of 2011, whereby the appeal preferred by the petitioner alongwith the co-accused-Binod Yadav has been dismissed and the judgment of conviction and order of sentence dated 04.02.2011 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in G.R. Case No. 2101 of 1999 (T.R. No. 1751 of 2011) whereby the petitioner has been convicted for the offence punishable under Section 25(1-B)a and 26(1) of the Arms Act and sentenced to undergo R.I. for 2 years with fine of Rs. 1,000/- and in default of payment of fine further S.I. for one month, has been affirmed.
2. The prosecution case in brief is that the informant received information that the petitioners were sitting together. On this information, the informant alongwith other officers came near the place of occurrence. After seeing the police party, both the accused persons started fleeing away. However, they were apprehended and disclosed their names. The further case of the prosecution is that in presence of the witness, search was made and from the possession of the petitioner one country made loaded pistol was recovered, however, the accused persons did not produce any document for possessing the fire arm. Pursuant to that, the case was instituted.
23. Learned counsel for the petitioners has vehemently argued that the independent witness/seizure list witness has not been examined in this case and as such, the seizure itself has not been proved. He further submits that in the case in hand non-examination of independent witness would demolish the entire prosecution case. He further submits that even the I.O. has not been examined in this case and the learned trial court without considering the facts and circumstances of this case has passed the impugned order of conviction. Even the learned appellate court failed to appreciate that when no independent witness has been examined then no case is made out under Section 25(1-B)a and 26(1) of the Arms Act. The counsel for the petitioner relied upon the judgment passed in Naresh Kumar @ Nitu Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684 at paragraph-8, which is quoted hereinbelow:
"8. In a case of sudden recovery, independent witness may not be available. But if an independent witness is available, and the prosecution initially seeks to rely upon him, it cannot suddenly discard the witness because it finds him inconvenient, and place reliance upon police witnesses only. In the stringent nature of the provisions of the Act, the reverse burden of proof, the presumption of culpability under Section 35, and the presumption against the accused under Section 54, any reliance upon Section 114 of the Evidence Act in the facts of the present case, can only be at the risk of a fair trial to the accused. Karamjit Singh v. NCT of Delhi is distinguishable on its facts as independent witness had refused to sign because of the fear of terrorists. Likewise S. Jeevanantham v. State also does not appear to be a case where independent witnesses were available."
Relying upon the aforesaid judgment the learned counsel further submitted that both the courts below have failed to consider that the prosecution has failed to prove the charges against the petitioner beyond all reasonable doubts by not proving the evidence in accordance with law and both the courts have committed material illegality and have failed to exercise their jurisdiction vested upon them.
4. Per-contra, the learned APP appearing for the State vehemently opposed the prayer of acquittal and submits that there is concurrent finding of courts below and learned trial court has elaborately discussed the evidence of witnesses and materials which were brought on record and he has rightly found the petitioners guilty for the offence committed 3 by them. He further submits that the prosecution has well proved the charges against the petitioners and there is no error in the impugned orders.
5. Having heard learned counsels for the parties and after going through the material available on record, I am of the considered opinion that the impugned order suffers from infirmity inasmuch as when the independent witness was available and the prosecution initially seeks to rely upon him, it cannot be suddenly discard the witness because it finds him inconvenient. In the instant case, the FIR itself speaks that the petitioners were searched in presence of two independent witnesses namely, Akhilesh Kumar Singh and Barmeshwar Prasad. However, both the independent witnesses have not been examined by the prosecution.
6. In this view of the matter and in view of the judgment relied upon by the petitioner, I am of the considered opinion that admittedly both the courts below have failed to consider this aspect of the matter that independent witness though available were not examined as such, both the courts have failed to exercise their jurisdiction vested upon them.
7. Under the circumstances, the impugned judgment dated 23.03.2013, passed by the learned Principal Sessions Judge, East Singhbhum at Jamshedpur and judgment of conviction and order of sentence dated 04.02.2011 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in G.R. Case No. 2101 of 1999 (T.R. No. 1751 of 2011) are, hereby, set aside.
8. The petitioners are acquitted from the charges framed against them and discharged from their liabilities of bail bonds.
9. Accordingly, this revision application is allowed.
10. Let a copy of this order and the lower court record be sent to the concerned court forthwith.
(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated:.20.11.2019 RKM/N.A.F.R