Patna High Court
Jitendra Sahni @ Jitu Sahni @ Jittu vs The State Of Bihar on 17 October, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.630 of 2010
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Jitendra Sahni @ Jitu Sahni @ Jittu, Son of Singheshwar Sahni @ Singhwa,
resident of village-Sari, P.S.-Warisnagar, District-Samastipur.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sujit Kumar Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 17-10-2012
The present appeal is directed against the judgment of conviction dated
28.1.2010and order of sentence dated 29.1.2010, passed by the learned Additional District & Sessions Judge F.T.C.-IV, Samastipur, in Sessions Trial No. 76 of 2005, by which the appellant has been convicted and sentenced in the manner indicated hereinbelow:-
Conviction Sentence
Section 325 IPC Simple imprisonment for two years.
Section 326 IPC Rigorous imprisonment for three years.
Section 307 read with Rigorous imprisonment for ten years.
34 IPC
Section 353 IPC Rigorous imprisonment for two years.
Section 332 IPC Rigorous imprisonment for one year.
Section 333 IPC Rigorous imprisonment for seven
years.
Section 25(1-B)a of Rigorous imprisonment for three years
the Arms Act, 1959
2 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 2 / 13 Sections 26 and 35 of Rigorous imprisonment for three years the Arms Act, 1959 Section 3 & 4 of the Rigorous imprisonment for ten years.
Explosive Substances Act, 1908 The trial court has ordered that all the sentences shall run concurrently. The prosecution case, in brief, according to one Vinod Kumar Srivastava (P.W. 1), the Officer-in-Charge of Samastipur Town Police Station, whose written reported dated 26.09.2004 is the basis of F.I.R., is as follows:-
It is alleged that on the basis of a confidential information that stolen and looted articles relating to some cases registered in Muffasil Police Station and Town Police Station of Samastipur have been concealed in village-Sari, P.S.- Warisnagar in the house of Singheshwar Sahni @ Singhwa, a raiding team headed by Sri Sushil Kumar, the Sub-Divisional Police Officer, Samastipur was constituted and the team raided the house of Singheshwar Sahni at about 12.15 p.m. on 26.9.2004. However, Singheshwar Sahni could not be apprehended. On inquiry, the villagers disclosed that Singheshwar Sahni @ Singhwa managed to escape from his house on seeing the police vehicle coming towards his house. They also disclosed that the appellant, who, is son of said Singheshwar Sahni @ Singhwa was present inside the house. The informant alleges that the members of raiding team, thereafter, gave there search to the independent witnesses of the village, namely, Gonour Sahni and Ram Sharan Sahni and entered inside the house. On search being made in the east facing room adjacent to the courtyard by the Sub-Divisional Police Officer, Sadar (not examined) and R.P. Mishra (P.W. 3), the Officer-in-Charge of Muffasil Police Station, recovery of arms and ammunitions from "Gudra" (Bed) rolled and kept over the chowki of Singheshwar Sahni @ Singhwa was made. A seizure list was prepared in presence of the witnesses. It is contended that one double barrel gun, one country made rifle measuring 42" in length, one country made rifle measuring 26" in length,
3 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 3 / 13 36 live cartridges of 12 bore and 40 live cartridges of .32 caliber were recovered from the bed roll. A seizure list of the recovered arms and ammunitions was being made but, in the meantime, the appellant threw a bomb towards the constables, who had cordoned off his house. The bomb exploded, as a result of which, three constables, namely, Gopal Shresth, Manoj Kumar and Ramdeo Prasad sustained injuries. The injured constables were immediately sent by police jeep to Sadar Hospital, Samastipur. The appellant was immediately apprehended. However, his mother Phoolan Devi, managed to escape in the smoke produced due to explosion of bomb. A copy of the seizure list was handed over to the appellant. The appellant failed to produce any license for the arms and ammunitions recovered from the place of occurrence.
On the basis of aforesaid information given by the informant to the Officer-in-Charge, Warisnagar Police Station, Warisnagar P.S. Case No.113 of 2004, was instituted for the offence punishable under Sections 324, 326, 307 read with 34 of the Indian Penal Code, 3 & 4 of the Explosive Substances Act as well as 25(1-B)a, 26 and 35 of the Arms Act and the investigation of was handed over to one Rajesh Kumar Rai (P.W. 17).
It is relevant to note it here that the F.I.R. was instituted against the appellant, his father Singheshwar Sahni @ Singhwa and his mother Phoolan Devi. The police investigated the case and submitted charge sheet in which, the father and mother of the appellant were shown as absconders. The learned Magistrate took cognizance of the offence and committed the case to the court of sessions for trial. The trial court framed charge against the appellant under Sections 324, 326, 353, 332, 333 read with 34, 307 read with 34 of the Indian Penal Code, Sections 3 & 4 of the Explosive Substances Act, Section 25(1-B)a, 26 and 35 of the Arms Act. The appellant pleaded not guilty to the charges and claimed to be tried. 4 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 4 / 13 In course of trial, on behalf of the prosecution, in order to prove the charges, altogether 17 witnesses were examined. The prosecution has also proved seizure list of the arms and ammunitions seized from the house of the appellant which has been marked as Ext.-1. The signature of the witness to the seizure, namely, Gonour Sahni (PW 7) on the seizure list prepared by P.W.1 Binod Kumar Srivastava has been proved and marked as Ext.-1/1. The signature of P.W. 7 Gonour Sahni on the arrest memo of the appellant prepared on 26.9.2004 at 11.25 a.m., has been proved and marked as Ext.-1/2. Ext.-2 is the signature of the Seizing Officer, B.K. Srivastava (P.W.-1). P.W. 2 Subodh Kumar Sinha, a formal witness, has proved the order granting sanction for prosecution of the appellant under the Explosive Substances Act and the Arms Act. The sanction order has been marked as Ext.-3 in course of trial. The injury reports of Ramdeo Prasad, Deo Narayan Prasad and Gopal Shresth have been proved by Dr. R.B. Srivastava (P.W. 5) of Sadar Hospital, Samastipur, which, have been marked as Ext.-4, 4/1 and 4/2 respectively in course of trial. A seizure list of uniform of the Constable Ramdeo Prasad and Manoj Kumar has also been proved in course of trial, which, has been marked as Ext.-6.
It is relevant to note it here that the doctor who had examined the injured in the Sadar Hospital, Samastipur, has noted down the time of examination of the injured persons in the injury reports. From perusal of Ext.-4 to 4/2, it transpires that the injured Ramdeo Prasad was examined in the Sadar Hospital, Samastipur at 11.55 a.m., the injured Gopal Shresth was examined at 12.05 p.m. and, the injured Manoj Kumar was examined at 12.10 p.m. in the Sadar Hospital, Samastipur on 26.9.2004. The arms and ammunitions so seized by the police are alleged to have been sent to the Sergeant Major for examination and report. The reports issued by the Sergeant Major, C.T.S., Nath Nagar, Bhagalpur in respect to the arms and ammunitions, have been brought on record and marked as Ext-5, 5/1, 5/2 and 5/3 5 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 5 / 13 respectively.
In course of trial, P.W. 1 Binod Kumar Srivastava, who is informant of the case states that he received confidential information from a police informer regarding concealment of looted articles in the house of Singheshwar Sahni @ Singhwa. Accordingly, a raiding team was constituted at 10.40 a.m. and the police party proceeded to raid the house of the appellant's father. They reached at Kali Mandir in village-Sari at 11.15 a.m. From there, they reached to the house of the appellant at 12.15 p.m. The house was cordoned off. The Sub-Divisional Officer, Sadar, the Officer-in-Charge, Muffasil Police Station, namely, R.P. Mishra (P.W. 3) and he himself entered inside the house. The search was being made in the east facing room adjacent to the courtyard by the Sub-Divisional Police Officer, Sadar and Sri R.P. Mishra. The arms and ammunitions as narrated in the F.I.R. were recovered from "Gudra" (Bed) rolled and kept over the "chowki" of the father of the appellant, namely, Singheshwar Sahni @ Singhwa. Accordingly, a seizure list was prepared. He has proved the seizure list, which, as noted above, has been marked as Ext.-1. In the meantime, the appellant threw a bomb towards the hut which exploded, as a result of which, three Constables, namely, Gopal Shresth, Manoj Kumar and Ramdeo Prasad sustained injuries. The appellant was apprehended and arrest memo was prepared. In his deposition, he states that the investigating officer of the case had made seizure of the remnants of the explosive. He, then, states that the injured Constables were sent to the Sadar Hospital for treatment. In cross-examination, he admits that the cartridges produced in the court were not sealed. The polythene bag, in which, the cartridges were kept was also not sealed. He also admits that though, the members of the raiding team had given their search to the search witnesses but, no document was prepared in that regard. On inquiry, he failed to produce the station diary entry made in the police station relating to the initial confidential information 6 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 6 / 13 received in the police station, pursuant to which, the raiding team had proceeded to the place of occurrence.
As noted above, P.W. 2 Subodh Kumar Sinha is a formal witness, who has simply proved the sanction order issued under the signature of the District Magistrate.
P.W. 3 R.P. Mishra was the then Officer-in-Charge of the Muffasil Police Station. He was one of the members of the raiding team. As per prosecution version, he went inside the house when the raid was conducted in the house of the appellant together with the Sub-Divisonal Police Officer and the informant of the case. In cross-examination, he states that he does not recall as to whether any entry regarding raid was made in the station diary in his police station.
P.W. 4 Ram Narayan Ram was an A.S.I. of Warisnagar Police Station. On the date of occurrence, he was posted as the Officer-in-Charge of Mathurapur O.P. He states that he received information from the Sub-Divisional Police Officer, Sadar and the Officer-in-Charge, Muffasil, to reach near Kali Mandir of Sari village, in order to raid the house of Singheshwar Sahni @ Singhwa. In cross-examination, he too states that though, the station diary entry was made in this regard in the police station but he cannot produce the same. He states that uniform of the Constables, who had sustained injuries due to the explosion of bomb, had burn marks over it. According to him, the injured constables had sustained bleeding injuries. The blood had fallen on the soil and the investigating officer had seized the blood stained earth and the partly burnt uniforms of the constables and prepared the seizure list.
P.W. 5 Ravi Bhushan Srivastava was posted at Sadar Hospital, Samastipur on 26.9.2004 as a Medical Officer. He had examined the injured constables. He states that he did not find any anterior injury on their person. He states that in respect of injured Ramdeo Prasad and Manoj Kumar all the injuries were 7 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 7 / 13 simple in nature and in respect of constable Gopal Shresth except injury no. 2 rest all were simple in nature. He states that he does not recall as to whether he had found any charring mark on the person of the injured constables.
P.W. 6 Manoj Kumar is one of the injured constables. He states that on the relevant date and time, he was posted as a security guard of the Sub-Divisional Police Officer, Sadar, namely, Sushil Kumar. He states that after sustaining injury, he had become unconscious. He remained admitted in hospital for nearly 8-10 days. His uniform had burn make due to explosion. He states that blood-stains were also there on the uniform. He had handed over the uniform to the police station and the same had been seized. The two other Constables, who are said to have sustained injury, namely, Gopal Shresth and Ramdeo Prasad have not examined on behalf of the prosecution in course of trial.
P.W. 7 Gonour Sahni is a seizure list witness. He is also a witness to the arrest memo. He admits his signature on the seizure list as well as the arrest memo, which have been marked as Ext.-1/ 1 & 1/2 but, he states that his signature was obtained on blank sheets of paper. He has been declared hostile by the prosecution.
P.W. 8 Ram Sharan Sahni is another witness to the seizure. He denies any recovery from the house of Singheshwar Sahni @ Singhwa in his presence. He states that his thumb impression was taken by the police on blank sheet of paper. He has also been declared hostile by the prosecution. The prosecution cross-examined both P.Ws. 7 & 8 but, nothing material could come in their evidence.
P.W. 9 Suresh Thapa, at the relevant time, was posted at Town Police Station as a Constable. He was one of the members of the raiding team. In cross- examination, he admits that he made no attempt to arrest the mother of the appellant. He also admits that the uniform of the injured constables did not receive burn mark 8 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 8 / 13 due to bomb explosion. He admits that the fardbeyan and other documents were prepared at the Town Police Station. According to him, the thumb impression of the appellant was also taken at the police station.
P.W. 10 Ramagya Debey is another Constable, who was posted as Havildar with Sub-Divisional Police Officer, Sadar, Samastipur. In cross- examination, he admits that all the injured were conscious after sustaining injury.
P.W. 11 Jhoolan Nath, the Sergeant Major, who had examined the seized arms and ammunitions states that he had received the seized articles in sealed condition and after examination returned the same in sealed condition.
P.W. 12 Indra Bhushan Bhandari at the relevant time was a constable posted in Samastipur Sadar Police Station. He was also a member of the raiding team. In cross-examination, he admits that the police party came back to the Sadar Police Station after seizing the arms and ammunitions and arresting the appellant and the documents regarding the seized arms and ammunitions were prepared at the police station.
P.W. 13 Gautam Ghurang is another constable, who was posted in Town Police Station and was a member of the raiding team. He states in his cross- examination that he did not recover or seize any arm or ammunition. According to him, the arms and ammunitions were seized by the Inspector, Town Police Station, namely, B.K. Mishra (P.W. 1), the Officer-in-Charge, Muffasil Police Station, namely, Sri R.P. Mishra (P.W. 3) and the Sub-Divisional Police Officer, Sadar, namely, Sri Sushil Kumar (not examined).
P.W. 14 Deo Bahadur Kunwar is another constable, who also admits that the seizure was not effected in his presence.
P.W. 16 Md. Rashid is a constable, who was deputed with the Sub- Divisional Police Officer. In cross-examination, he admits that the investigating 9 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 9 / 13 officer had never recorded his statement during investigation. He states that when father of the appellant namely, Singheshwar Sahni @ Singhwa escaped, the members of the raiding team were present. According to him, none made any effort to apprehend him. He goes to the extent of saying that the constables had apprehended the mother of the appellant prior to explosion of bomb thrown by the appellant.
P.W. 17 Rajesh Kumar Rai is the main investigating officer, who was entrusted with the investigation immediately after institution of the F.I.R. He states that P.W. 1 B.K. Srivastava had prepared the seizure list. However, he states that after taking over the investigation of the case, he recorded the statement of the witnesses, inspected the place of occurrence at the instance of P.W. 4 Ram Narayan Ram. In cross-examination, he admits that the incriminating articles were not seized in his presence. He has received the arms and ammunitions from the Officer-in- Charge of Town Police Station. He did not prepare the seizure list as it was prepared from before. He further admits that the arms and ammunitions were not delivered to him in sealed condition. He also admits that he had not mentioned about the marks on the uniform of the injured police constables. He admits that the blood-stains found on the uniform were also not sent for chemical examination. He states that he had inspected the place of occurrence at about 4.20 p.m. on the date of occurrence itself but, he did not seize the blood-stained earth. He admits that he did not prepare sketch map of the place of occurrence and did not take photograph of the place where the explosion had taken place. He admits that in course of investigation, he had not recorded the statement of the Sub-Divisional Police Officer, Sadar, who was heading the raiding team.
P.W. 15 is the second investigating officer of the case, who had simply submitted charge sheet in the case.
Learned counsel for the appellant submits that the prosecution case is 10 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 10 / 13 absolutely false and concocted. Nothing incriminating was ever recovered from the place of occurrence. The prosecution has deliberately not examined the two injured constables, namely, Gopal Shresth and Ramdeo Prasad. The leader of the raiding team, namely, Sushil Kumar has also not been examined in course of trial. He submits that the prosecution has deliberately not proved the written report and the formal F.I.R. of the case. He submits that there is no explanation as to why the important witnesses have been withheld and the F.I.R. has not been proved by the prosecution.
Learned counsel for the State, on the other hand, submits that the prosecution has brought reliable witnesses in support of the charge and relevant documents have also been proved by the prosecution in course of trial. According to him, the trial court has rightly convicted the appellant.
Having heard the parties and perused the records, I find some glaring defects in the prosecution case. The admitted case of the prosecution is that the police party reached at the house of the appellant at 12.15 p.m. on 26.9.2004. The police party cordoned off the house from all sides and thereafter, the informant, the Officer-in-Charge of the Muffasil Police Station and the Sub-Divisional Police Officer, Sadar, effected their entry inside the house. Under such circumstance, any search or seizure could have been made only after 12.15 p.m. and not before. When the case of the prosecution is that while the informant along with other police constables was inside the house, the appellant threw bomb which exploded and caused injuries to three constables. Under such circumstances, the injuries to the constables could have been caused only after 12.15 p.m. and not before. However, from the exhibits produced on behalf of the prosecution, it is apparent that the constable Ramdeo Prasad was examined at 11.45 a.m., the constable Gopal Shresth was examined at 12.05 p.m. and the Constable Manoj Kumar was examined at 12.10 11 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 11 / 13 p.m. All of them were examined at Sadar Hospital in Samastipur on 26.9.2004. According to the prosecution case after sustaining injury, the injured constables were sent to Samastipur Sadar Hospital by police jeep. Naturally some time must have been consumed in going from the place of occurrence to the hospital. One cannot comprehend as to how, when the police reached at the house of the appellant at 12.15 p.m. and the incident of occurrence, in which, the constables are alleged to have sustained injuries took place thereafter, the constables were examined prior to 12.15 p.m. I further find that the informant had prepared an arrest memo at the place of occurrence itself. The signature of seizure list witness Gonour Sahni has been taken on the arrest memo, which has been marked as Ext.-1/2. From perusal of the arrest memo, it is apparent that the same was prepared at 11.25 a.m. on 26.9.2004. The time mentioned in the arrest memo again creates a serious doubt regarding the veracity of the prosecution case. When the police reached at the house of the appellant at 12.15 p.m., it is strange as to how, the arrest memo was prepared even before that at 11.25 a.m. Further, if the appellant was already apprehended by the police at 11.25 a.m., there could not have been any occasion for him to hurl bomb on the police party at 12.15 p.m. When I look to these vital discrepancies, it becomes clear as to why the prosecution chose not to get the F.I.R. proved in course of trial. I further find that the witnesses have contradicted each other in material particulars. Some of the constables, who were members of the raiding team, have gone to the extent of saying that the entire documents were prepared in the police station. P.W. 16 states that the father of the appellant, who is the main accused, escaped in presence of the police party. He states that the mother of the appellant was apprehended by the police party even before the appellant threw bomb. However, the other prosecution witnesses 12 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 12 / 13 state that the father of the appellant managed to escape prior to the arrival of the police party and the mother of the appellant managed to escape after the explosion of the bomb. Such being the quality of evidence adduced on behalf of the prosecution, it is difficult for the Court to place its reliance.
Even otherwise, I find that in order to constitute an offence under Section 3 of the Explosive Substance Act there must be an explosion which should be of a nature likely to endanger life or to cause serious injury to property, etc. The court cannot accept the make belief case of the prosecution about the articles being explosive substance, without any forensic proof to that effect. In absence of expert finding leading to conclusion that what was collected at the place of occurrence by the police was nothing but explosive substance, conviction under Section 3 & 4 of the Explosive Substances Act cannot be upheld. In the present case, the prosecution has failed to bring the material exhibits on record. It has neither brought on record the seizure list of the articles seized from the place of occurrence nor even produced the seized materials in the court. There is no forensic report in respect to the materials seized from the place of occurrence. Under such circumstances, the conviction of the appellant under Section 3 & 4 of the Explosive Substances Act also cannot be upheld.
I further find that the two injured constables, namely, Gopal Shresth and Ramdeo Prasad have not been examined in court. The injured constable Manoj Kumar, who has deposed in court states that he was admitted in Hospital for about 8- 10 days. There is no medical proof in that regard. He states that he had become unconscious after sustaining injury. The other witnesses examined on behalf of the prosecution state that none of the injured had become unconscious after the occurrence. I have already noted above that no reliance can be placed on the injury report, which was prepared even prior to the alleged incident of occurrence. Under 13 Patna High Court CR. APP (SJ) No.630 of 2010 dt.17-10-2012 13 / 13 such circumstance, the conviction of the appellant under Sections 324, 326, 307 read with 34, 332, 333 can not be upheld.
For the reasons assigned, hereinabove, in my view, the appellant can not even be convicted under Section 353 of the Indian Penal Code or under Sections 25(1-B)a, 26 and 35 of the Arms Act. The prosecution has miserably failed to bring home the charges levelled against the appellant, beyond reasonable doubts.
In that view of the matter, the impugned judgment and order of conviction and sentence recorded by the trial court are set aside. The appellant, who is in custody, is directed to be released forthwith, if not required in any other case. Patna High Court (Ashwani Kumar Singh, J.) The 17th October,2012 Sanjeet/NAFR