Jharkhand High Court
Chhotka Marandi vs The State Of Jharkhand on 22 April, 2024
Bench: Ananda Sen, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 1588 of 2022
(Against the judgment of conviction dated 23 rd November 2022 and the order of sentence
dated 5th December 2022 passed by the learned Additional Sessions Judge-IX, Giridih in
Sessions Trial No. 241 of 2013)
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Chhotka Marandi, aged about 34 years, son of Rupay Marandi, resident of
Village Simarjori, PO Bishunpur, PS Pirtand, District Giridih.
.... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
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CORAM: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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For the Appellant : Mr. P.K. Mukhopadhyay, Advocate
Mr. S.K. Murtty, Advocate
For the State : Mr. Shashi Kr. Verma, APP
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JUDGMENT
CAV On 10th April 2024 Pronounced on 22nd April 2024 Per, Subhash Chand, J.
The instant criminal appeal has been directed on behalf of appellant/convict Chhotka Marandi against the judgment of conviction dated 23.11.2022 and order of sentence dated 05.12.2022 passed by the learned Additional Sessions Judge-IX, Giridih in Sessions Trial No.241 of 2013 arising out of Pirtand P.S. Case No.05 of 2013 whereby and whereunder the learned trial court has convicted the appellant under sections 302/149 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- for the offence under section 302/149 of IPC and in default of payment of fine, the convict was directed to undergo RI for one year, further for the offence under section 147 of IPC RI of 2 years and a fine of Rs.1,000/- and in default of payment of fine, he was directed to undergo RI for one month, further for the offence under section 148 of IPC RI of 3 years and a fine of Rs.2,000/- and in default of payment of fine, he was directed to undergo RI for three months, further for the offence under section 25(1-b)a of the Arms Act RI of 3 years with fine of Rs.2,000/- and in default of payment of fine, he was directed to undergo RI for three months, further for the offence under section 26 of the Arms Act RI of 7 years with fine of Rs.5,000/- and in default of payment of fine, he was directed to undergo RI for six months, further for the offence under section 27 of the Arms Act RI of seven years with fine of Rs.5,000/- and in default of payment of fine, he was directed to undergo RI for six months and further for the offence under section 17 C.L.A Act RI of three years with fine of Rs.2,000/- and in default of payment of fine, he was directed to undergo RI for three months. All the sentences were directed to run concurrently.
2. The brief facts of the prosecution case are that the informant Bimal Nandan Sinha had given the written information with the police station concerned with these allegations that the Superintendent of Police, Giridih had got secret information on 04.02.2013 that some of the naxalite assembled near village Simarjori. Naxalite Chhotka Marandi who had escaped from the custody of police in Muffasil P.S. Case No. 290 of 2012 was also among them. All the naxalite were to commit offence who had assembled with arms. The SP, Giridih constituted a team under the supervision of ASP by the name and style 'Abhiyan' having different arms forces of CRPF and QRT. Whereas informant Bimal Nandan Sinha, Officer In-charge of Muffasil PS was directed for arresting and conducting the raid.
2 Cr. Appeal (DB) No. 1588 of 2022 About 7:30 PM they proceeded to the place of occurrence to conduct the raid. After crossing Barakar river the police personnel were divided into two teams and proceeded towards Simarjori village. About 10:00 PM four round firing started from the opposite side, then on the direction of ASP Police force also started counter firing in self defense. By doing the same, police force reached near the naxalties. Seeing themselves surrounded by the police force, the extremists started running only one naxalite was apprehended whereas others managed to flee away taking advantage of the occurrence. The naxalite who was apprehended was identified as Chhotka Marandi and police recovered from his possession one country made carbine alongwith three bullets. Seizure memo of the same was prepared. The apprehended naxalite disclosed the names of other co-accused who had assembled to chalk out a plan for committing offence. He also disclosed that they also fired upon police in order to save them and also to cause hurt to police force. After taking him into custody the police team reviewed its weapons and team members. In course of review, one members 725 Ajit Kumar Singh was found lying injured. He had bullet injury on his chest. During investigation it was also found that Anand Singh Police Personnel 041614929 and Pawan Kumar Singh Police Personnel 105051306 of CRPF- 7 Batalion fired three round from AK-47 whereas Hawaldar Rama Marandi fired two round from AK-47 and Amarkant Sinha Police Personnel 1245 fired two round from insas rifle in all 10 bullets were shot by the police. Injured Ajit Kumar Singh was sent to Sadar Hospital, Giridih where he was declared dead. On this written information Case Crime No. 05/2013 was registered under section 147, 148, 149, 307, 302 of IPC, section 25(1-b)a, 3 Cr. Appeal (DB) No. 1588 of 2022 26, 27 Arms Act and Section 17 C.L.A. Act against the accused and the investigating officer after having completed the investigation filed charge- sheet to the Court of learned CJM, Giridih who having taken the cognizance thereon committed the case for trial to the Court of learned Sessions Judge, Giridih. The Court of learned Sessions Judge, Giridih further transferred the case for trial to the learned Additional Sessions Judge-IX, Giridih.
3. The trial court framed charge against the accused and the charge was read over and explained to him who denied the charge and claimed to face the trial.
4. On behalf of prosecution to prove the charge against the accused in oral evidence examined altogether 13 witnesses PW1- Anand Singh, PW2- Pawn Kumar, PW3- Bimal Nandan Sinha, PW4- Dr. Ashok Kumar, PW5- Dinesh Pal Singh, PW6- Rajiv Kumar, PW7- Amarkant Sinha, PW8- Md. Ajruddin Khan, PW9- Ronald J. Hansda, PW10- Francis Javiour Bara, PW11- Nitesh Kumar Pandey, PW12- Rupendra Kumar Rana, PW13- Sadhan Kumar Mukherjee and in documentary evidence filed Exhibit-1 Written information, Exhibit-1/1 Endorsement on written information, Exhibit-2 Seizure List, Exhibit-2/1 Signature on seizure list, Exhibit-3 Postmortem report, Exhibit-4 Formal FIR, Exhibit-5 Confessional statement of accused, Exhibit-6 Inquest report, Exhibit-7 Examination report, Exhibit-8 prosecution sanction, Material Exhibit-M-I Iron Metal carbine, Material Exhibit-II Cartridge, Material Exhibit-III/I to III/3 Bullets.
5. The statement of the accused was recorded under section 313 of Cr.PC who denied the incriminating circumstances in evidence against him and told himself to be innocent.
4 Cr. Appeal (DB) No. 1588 of 2022
6. The learned trial court after hearing the rival submission of learned counsel of parties passed the impugned judgment of conviction and sentence as stated hereinabove.
7. Aggrieved from the impugned judgment of conviction and sentence, this criminal appeal has been preferred on behalf of the appellant on the ground that there is no evidence that it was the appellant convict who had shot the deceased. From the prosecution evidence it is also well proved that the deceased who was police personnel was not in uniform or he was in civil dress. Taking into consideration the medical evidence, the bullet was shot from the back side of the deceased which came out from the chest as such it was the fire arms shot by the police which hit to the deceased. Had the fire arm being shot by the extremists it would have shot from the front side of the police personnel as there was exchange of fire from the both sides. In view of the above contended to allow this appeal and to set aside the impugned judgment of conviction and sentence.
8. We have heard the learned counsel of parties and perused the material on record.
9. In order to decide the legality and propriety of the impugned judgment of conviction and sentence we have to reappreciate the prosecution evidence on record which is reproduced hereinbelow:
9.1 PW1- Anand Singh in his examination-in-chief this witness corroborated the prosecution story.
In cross-examination this witness says deceased was in civil dress. He also opened three round but cannot say from which direction. He did not deposit the empty cartridge. On the date of occurrence it was 5 Cr. Appeal (DB) No. 1588 of 2022 winter and time was 10 O'Clock. This witness also denied the suggestion that it is not shown that deceased died on account of the bullet shot given by the police.
9.2 PW2- Pawan Kumar in his examination-in-chief corroborates the prosecution story. In this case he has not put any signature on any paper. As per his knowledge, he cannot say whether Ajit Kumar Singh was in uniform or not. The country made carbine was recovered from the nabbed accused. He did not deposit the empty cartridge. He is not aware whether the empty cartridges were taken in custody. The recovered articles are not produced in Court today. He saw the deceased at the time of briefing. It is wrong to say that deceased died on account of sustaining bullet caused shot by the police.
9.3 PW3- Bimal Nandan Sinha in his examination-in-chief says on 04.02.2013 he was station In-charge of Muffasil Police Station. On the written information received from the SP Sahab, MCC Pirtand Police Station and Muffasil Police Station reached to the boarder village Simarjori the extremists had assembled there among them Chhotka Marandi who had absconded from jail custody in case crime no. 290 of 2012. Police party was divided into two teams. All of sudden at 10:30 the extremists began to fire ASP also directed them to fire. Chhotka Marandi was nabbed alongwith carbine and the bullets therein thereafter the police reviewed their weapons and it was found during review that one Ajit Kumar Singh, Constable was also injured. He was taken to Sadar Hospital, Giridih where he was declared dead. The written information is in his handwriting and signature marked Exhibit-1. A seizure memo is also in his pen and signature the 6 Cr. Appeal (DB) No. 1588 of 2022 witnesses also put their signature marked as Exhibit-2. He identified the accused Chhotka Marandi.
In cross-examination this witness says that Ajit Kumar Singh was not in uniform. Some police personnel were in uniform and some of the police personnel were not in uniform. Firing took place 10 to 15 minuets. Because of Jungle no empty cartridge was seized. On the seizure memo no official of the Pirtand put his signature. Chhotka Marandi was nabbed by a police constable he does not reflect his name. It is wrong to say that Ajit Kumar Singh died on account of the bullet injury given by police itself.
9.4 PW4- Dr. Ashok Kumar in his examination-in-chief says on 05.02.2013 he was posted at Sadar Hospital, Giridih. A dead body of police Constable 725 Ajit Kumar Singh was brought for postmortem. He conducted the postmortem and found following antemortem injuries: (1) Antemortem lacerated wound near, the right posterior auxiliary line about 1/2"
diameter cavity deep with everted margin. (2) Antemortem lacerated wound on left side chest just above left nipple 1/2 in diameter, cavity deep with everted margin. This is exit wound. Cause of death- chest injury caused by fire arm weapon. Time since death-Approx 12 hrs, since postmortem examination.
In cross-examination this witness says while conducting postmortem examination he did not find any blackening and charring on the injury no.1. He does not remember whether the deceased was brought in uniform. He did not find any bullet in the body of deceased.
7 Cr. Appeal (DB) No. 1588 of 2022 9.5 PW5- Dinesh Pal Singh in his examination-in-chief corroborated the prosecution story.
In cross-examination this witness says Ajit Kumar Singh was not shot in his presence. Ajit Kumar Singh was in civil dress. It was dark night. Ajit Kumar Singh was just ahead of him in the party of ASP at the distance of 40 meter. No light was used in this operation. Empty cartridge was not recovered. Seizure memo was not prepared at the place of occurrence.
9.6 PW6- Rajiv Kumar Constable 1246 in his examination-in- chief corroborates the prosecution story and he says that the seizure memo was prepared. He put his signature on the seizure memo identified the same marked Exhibit-2/1.
In cross-examination this witness says that the seized material is not produced in the court today. He did not put his signature thereon. It was dark night on the date of occurrence. He was in the team of which there were 45 members. They reached to the place of occurrence on next day also and found 40-50 empty cartridges. Whether same were seized or not he does not remember. Ajit Kumar Singh who sustained bullet injury, was in civil dress; while he was in uniform. He further says on the account of darkness cannot say whether he was in uniform or not. It is wrong to say that Ajit Kumar Singh who sustained bullet injury caused by the police party. 9.7 PW7- Amarkant Sinha in his examination-in-chief corroborates the prosecution story.
In cross-examination this witness says that by which Maoists shot the deceased died he did not see. The police force was divided into 8 Cr. Appeal (DB) No. 1588 of 2022 two team, he was member of the team of which there were 30 police personnel. He cannot say whether the constable who had sustained bullet injury was in uniform or not.
9.8 PW8- Md. Azruddin Khan in his examination-in-chief corroborates the prosecution story.
In cross-examination says that Chhotka Marandi was nabbed by him. At the place of occurrence there were so many empty cartridges which were recovered. It was dark night. There was neither the dragon light nor there was any torch. No person was showing the light at the time of conducting raid. Chhotka Marandi was brought nabbed from the place of occurrence by the team which was headed by ASP. 9.9 PW9- Ronaldo J. Hansda in his examination-in-chief corroborates the prosecution story.
In cross-examination this witness says that whether deceased was in uniform or not he does not remember. It was dark night. No empty cartridge was recovered from the place of occurrence. 9.10 PW10- Francis Javiour Bara, investigating officer in his examination-in-chief says that he took over the investigation of the Case Crime No. 05/2013. Formal FIR is in the handwriting of Sub-inspector H.K. Oraon and his signature he identified marked Exhibit-4. The accused Chhotka Marandi was produced before him and one country made carbine and 9 mm three round bullet in the magazine were found loaded. He recorded restatement of informant thereafter recorded the statement of the other witnesses, recorded confessional statement of accused Chhotka Marandi marked Exhibit-5. Inquest report of deceased Ajit Kumar Singh 9 Cr. Appeal (DB) No. 1588 of 2022 was prepared by Sub-inspector Lakhan Singh. He had identified the same. He prepared the side plan of place of occurrence and thereafter filed charge- sheet.
In cross-examination this witness says that he did not take in his possession the blood stained soil and plane soil. The seized article were not sealed. He did not investigate whether the members of raiding party were in civil dress. In the inquest report in the wearing apparel of the deceased are shown T-shirt and jeans blue colour which is not police uniform. He has not produced any seized article in the court today. In postmortem no pillet was handed over to him. He did not find any empty cartridge at the place of occurrence.
9.11 PW11- Nitesh Kumar Pandey has brought the material exhibits from the Malkhana by the order of Station Officer of Pirtand Police Station in Pirtand PS Case Crime No. 05 of 2013. From the cloth bag one 9 mm country made carbine was brought out. On which the case crime number and sections were mentioned. There is also signature of the Chief Judicial Magistrate and also signature of Chhotka Marandi. One magazine containing therein 9 mm three round bullets were also produced which are marked Material Exhibits- M-1, M-II, M-III, M-III/1 and M-III/2.
In cross-examination this witness says that he had no knowledge in regard to the occurrence. On the malkhana register there is no time of withdrawing the material and depositing the same. 9.12 PW12- Rupendra Kumar Rana took the seized article to obtain the prosecution sanction and he received the prosecution sanction 10 Cr. Appeal (DB) No. 1588 of 2022 entry of the same was made in the general diary thereafter he was transferred.
9.13 PW13- Sadhan Kumar Mukherjee proved the prosecution sanction Exhibit-8 received from the Deputy Commissioner-cum-District Magistrate under section 25(1-b)(a), 26 and 27.
10. As per prosecution case informant Bimal Nandan Sinha who had received the secret information on 04.02.2013 from the SP, Giridih that the naxalite had assembled near the village Simarjori among them naxalite Chhotka Marandi who had escaped from the custody of police in Muffasil P.S. Case No. 290 of 2012 was also present and they were to commit the offence. As such by the order of the SP, Giridih under the supervision of ASP, Giridih the operation was conducted by the forces of CRPF and QRT. The police force which was of CRPF and QRT both were divided into two teams in one team there were 45 members and in another team there were 30 members. The date of conducting raid is 04.02.2013 and time is 10:00 PM.
11. All the prosecution witnesses have stated that it was dark night and there was no source of light. The police force which was divided into two teams which proceeded from the two sides to attack upon the naxalties. As the naxalties opened fire as they heard the sound of opening fire by the order of commander of each team the police force also opened fire. While conducting the raid one naxalite Chhotka Marandi was nabbed and from his possession one country made carbine and magazine containing therein three round bullet was also recovered. All other naxalite managed to flee away.
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12. While reviewing the weapons and the members of the police force it transpired that one constable Ajit Kumar Singh was injured who had sustained firearm injury he was taken to Giridih Sadar Hospital where he was declared dead.
13. It is the case of prosecution that the constable Ajit Kumar Singh deceased was shot by the naxalite. Though it is not the case of the prosecution that it was the apprehended accused Chhotka Marandi who shot the deceased yet it is the case since he was the member of the naxalite group who had formed the unlawful assembly and armed with deadly weapons and in prosecution of common object to commit the offence untoward event they had assembled and while conducing raid by the police force the naxalite opened fire. As such in opening fire by the naxalties deceased sustained bullets injury who died. As such under section 149 of IPC the apprehended accused Chhotka Marandi who is convict/appellant herein, is also liable being the member of naxalite unlawful assembly among them some one had shot the deceased constable Ajit Kumar Singh.
14. Herein it would be relevant to give the statutory provisions of section 149 of IPC and judicial pronouncements which read as under:
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, 12 Cr. Appeal (DB) No. 1588 of 2022 is a member of the same assembly, is guilty of that offence."
14.1 The Hon'ble Apex Court in "Sikandar Singh & Ors. v. State of Bihar" (2010) 7 SCC 477 held:
"15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and
(ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object.
The "common object" of an assembly is to be 13 Cr. Appeal (DB) No. 1588 of 2022 ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful."
15. First of all the prosecution has to prove the unlawful assembly which had armed with deadly weapon and in prosecution of common object i.e. to commit the untoward event they had assembled with deadly weapons and opened fire upon the raiding team of police force of CRPF and QRT as well. All the prosecution witnesses have stated that the naxalite including the apprehended appellant convict Chhotka Marandi had assembled with deadly weapons near the Simarjori village in a jungle and they were to commit untoward event. The secret information was received by the informant from SP, Giridih.
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16. Police force of CRPF and QRT which were divided into two team in one team there were 45 members and another there were 30 members all proceeded at 10 O'clock in night towards the Simarjori village in a jungle. The place of occurrence is a jungle it was utter dark night admittedly, there was no source of light as stated by the prosecution witnesses. The exchange of fire also took place from both the sides i.e. naxalties and police force as well.
17. In order to attract the section 149 of IPC prosecution has to first prove whether the deceased constable Ajit Kumar Singh who sustained bullet injury and ultimately died was shot by any one of the naxalties.
18. From the prosecution evidence it is proved that the exchange of fire took place from both sides i.e. from the side of naxalite and from raiding party of the police. At the time of occurrence it was utter dark night of winter. The place of occurrence is jungle admittedly there was no source of light even there was no dragon light or the torch light. No one prosecution witness had seen opening fire upon the deceased constable Ajit Kumar Singh. None of the prosecution witness has stated that whether the bullets were shot to deceased from the side of naxalties. Since no one was in condition to see on account of utter darkness.
19. Herein the medical evidence also become relevant. PW4 Dr. Ashok Kumar has shown two antemortem injury one was entry wound and another is exit wound. Entry wound is from the back side near the right posterior auxiliary and exit wound is left side of nipple of the chest 15 Cr. Appeal (DB) No. 1588 of 2022 and both the exit wound and the entry wound were in the die meter of 1/2'. These injuries were caused by the fire arm. Cause of death is chest injury caused by fired arm weapon. The doctor did not recover any pillet while conducting the postmortem of deceased. It means the bullet which entered from the back side came out from the chest wherein there is exit wound. As such this lacerated wound is through and through.
20. On behalf of the appellant convict this defense has been taken that the bullet was shot by the police force itself as is shot from the back side of the deceased and came out of the front side i.e. chest. Had the deceased being shot by the naxalite, the shot would have caused from the front side not from the back side. Certainly this possibility cannot be denied. More so admittedly deceased was in civil dress he was not in uniform. Although at the time of exchange of fire, no one was in a condition to see by whom the bullet were shot to the deceased constable Ajit Kumar Singh.
21. Admittedly exchange of fire took place 10 to 15 minuets between the naxalties and the police force. No empty cartridges were recovered from the place of occurrence.
22. There is nothing adduced on behalf of prosecution that the fire arm injury was caused by what kind of fire arm weapon. Which kind of bullet was used in shooting the constable Ajit Kumar Singh. Since no pillet was recovered by the doctor PW4 Dr. Ashok Kumar while conducting the postmortem of deceased. As such the size of the entry wound and exit wound might have through light as to what kind of bullet was used on the basis of the empty cartridges.
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23. The weapons arms and ammunition which was carried by the police force of CRPF and QRT which were used in countering the naxalties by opening fire arm whether how many cartridges and the bullets were spent in opening fire, the same might have been ascertained on the basis of the empty cartridges recovered from the place of occurrence. The same was not done by the IO. IO says that no one has handed over to any of the empty cartridges.
24. From the prosecution evidence it is not proved that with what kind of weapons the naxalties were armed. Only one naxalite Chhotka Marandi was apprehended from whose possession one country made carbine alongwith magazine containing therein three round bullets was recovered. As per prosecution case same was not used in shooting constable Ajit Kumar Singh.
25. Herein in order to attract the section 149 of IPC. Firstly prosecution has to prove whether the fire arm injury which the constable Ajit Kumar Singh sustained, was caused by the fire arms weapons which were used by the naxalties. Admittedly no one has seen from whose side deceased Ajit Kumar Singh sustained bullet injury. As it was the utter dark night.
26. Unless and until it is proved beyond reasonable doubt that the bullet were shot to the deceased Ajit Kumar Singh from the side of naxalite; the appellant convict Chhotka Marandi though who had not shot the deceased cannot be made liable vigorously under section 149 of IPC. As such in this case the prosecution has failed to prove firstly whether the constable Ajit Kumar Singh was shot dead by the bullets from the side of 17 Cr. Appeal (DB) No. 1588 of 2022 naxalties. By way of section 149 of IPC the appellant convict cannot be make liable for the murder of the deceased. There is reasonable doubt from whose side whether from the side of police or from the side of naxalite the bullet was shot to the deceased. Where there is a doubt the benefit certainly will go to the accused.
27. Herein in the case in hand the occurrence that the exchange of fire took place in utter dark night there was no source of light. All of the prosecution witness have stated that there was no source of light and it was not possible to see any one in the utter darkness. As such no one could see the assailant of the deceased, whether it was the naxalite or the police.
28. The bullet which the deceased had sustained which came from the back side of the deceased and came out from the front side also from that it is inferred that the bullet might being shot from the side of party which was from the back side. It is found that the bullet was shot from the back side as per location of the deceased at the place of occurrence. As the deceased though was in civil dress but was the member of police force certainly would have been in front of the naxalites just to face them at the time of countering them by exchange of fire. Had the bullet being shot from the side of naxalite it would have shot from the front side of the deceased. This also causes doubt whether the deceased was shot by the side of naxalite. Consequently, the appellant convict cannot be made liable under section 149 of IPC for the murder of the deceased.
29. So far as the offence under section 25(1-b)a, 26/27 of Arms Act and section 17 CLA Act are concerned. From the prosecution evidence it is 18 Cr. Appeal (DB) No. 1588 of 2022 found that the naxalite Chhotka Marandi was nabbed and from his possession one country made carbine and a magazine containing therein three round bullets were recovered. The seizure memo of the same are proved by the testimony of police personnel. There is no independent witness of the seizure memo.
29.1 From the prosecution evidence it is found that the recovered carbine and the magazine containing therein three round bullets were never sent for examination to the FSL for ballistic report or to the armourer to call for the armory report, to ascertain whether the carbine which was recovered from the possession of the appellant was in working order or not. So far as magazine containing therein three round bullets are concerned whether the same were live or not so as to bring it within the definition of ammunition it is necessary to prove that the bullets contained in the magazine were live since there is no ballistic report or armory report on record. 29.2 Herein it would be relevant to reproduce certain statutory provisions of the Arms Act, 1959 which reads as under:
"Section 2(e) "firearms" means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,--
(i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing,
(ii) accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof, 19 Cr. Appeal (DB) No. 1588 of 2022
(iii) parts of, and machinery for manufacturing, firearms, and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery;
Section 2(i) "prohibited arms" means--
(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or
(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti- tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms; Section 2(h)"prohibited ammunition" means any ammunition containing or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, [missiles,] articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition;"
29.3 Therefore the recovery of the country made carbine and the magazine containing therein three round bullet do not come in the periphery of the definition of the Fire Arm under section 2(c), 2(e) and prohibited ammunition 2(h) .
20 Cr. Appeal (DB) No. 1588 of 2022 29.4 The Hon'ble Apex Court in "Buta Singh v. State of Punjab"
1997 SCC (Cri.) 1217 held.
"4. We need not detain ourselves to consider the statements of PW 1 and PW 2, the recovery witnesses, as we find that the prosecution case suffers from a serious infirmity in this case. The objects allegedly seized from the appellant were not sent for any expert opinion either to the ballistic expert or to any armourer. There is no evidence on the record to show that the objects recovered from the appellant satisfied the definition of "arm" and "ammunition" or "firearm" as contained in the Arms Act. In the absence of any such evidence, the conviction of the appellant cannot be sustained. This appeal consequently succeeds and is allowed. The conviction and sentence of the appellant is set aside and he is hereby acquitted."
29.5 The Hon'ble Apex Court in "Surinder v. State of Haryana"
(1994) 4 SCC 365 held:
"4. In the report submitted by the Armourer, there is no mention of cartridges. Further, in his deposition he stated that the articles were handed over to him in open condition. In other words, they were not sealed. This is supported by the statement of the Investigating Officer who in his cross-examination admitted that pistol and cartridges were not sealed. In absence of sealing of these materials serious doubt is cast on prosecution. In any case even assuming that pistol was in working order, 21 Cr. Appeal (DB) No. 1588 of 2022 therefore it was arms, the prosecution could succeed only if the cartridges are held to be ammunition. The word has been defined in clause (b) of Section 2 of the Arms Act to mean ammunition for any firearms etc. A cartridge can be ammunition for any firearm if it is live. It was, therefore, incumbent on the prosecution to prove that the cartridges recovered on showing of the appellant were live. But no evidence was led on this behalf. The Armourer's report could not establish it as it was silent. It failed to discharge it. In absence of any evidence or material on record to establish that the cartridges were live, they were liable to be excluded and the appellant could be deemed to be in possession of arms only. In Paras Ram v. State of Haryana it has been held by this Court that a person could be prosecuted for an offence under Section 5 of the TADA Act only if he was found to be possessed of both arms and ammunition. If the cartridges are excluded because they were not live, it has to be held that the appellant was not in possession of arms and ammunition as contemplated under Section 5 of the TADA Act."
29.6 Therefore the offence under section 25(1-b)a is not made out against the appellant from the evidence on record.
30. So far as the offence under section 26 and 27 are concerned there is no evidence on record that the country made carbine and the magazine containing therein three round bullets were attempted to conceal by the appellant on the search being made. There is no evidence that there is 22 Cr. Appeal (DB) No. 1588 of 2022 secret contravention of the provisions of Section 3, 4, 5, 6, 7, 10, 11 and 12 of the Arms Act. As such no offence under section 26 is made out.
31. So far as the offence under section 27 of the Arms Act is concerned, from the prosecution evidence it is found that the deceased was not shot by the appellant from the weapon which was recovered from him. This is the admitted case of prosecution. There is no evidence on record that the appellant had used this country made carbine and the magazines in opening fire upon the police. There being no evidence in regard to use of this country made carbine in commission of the offence. The offence under section 27 of the Arms Act is also not made out.
31.1 The Hon'ble Apex Court in "Sudhir Kumar Jain v. State of Rajasthan" (2020) 18 SCC 725 held:
"11. The accused was arrested on the same day i.e. 17-4-2003 at 5.50 p.m. and the 12 bore countrymade pistol was recovered immediately thereafter. The opinion of the ballistic expert that the 12 bore countrymade pistol from packet 'C' is not serviceable firearm in the present condition due to some defect in its mechanism raises doubt about the weapon used in the occurrence. Of course PW 25 has stated that the twenty-one lead pellets contained in packets 'A' and 'B' are normally used in 12 bore ammunition and these pellets could have been fired from 12 bore countrymade pistol (W/1) from packet 'C'. Since the 12 bore countrymade pistol (W/1) recovered pursuant to the disclosure statement made by appellant was not in working condition due to some 23 Cr. Appeal (DB) No. 1588 of 2022 defects in its mechanism, this raises doubt about the user of the weapon. Considering the fact that all the eyewitnesses have turned hostile, in our view, it is unsafe to rely upon the recovery of the weapon and the opinion of the ballistic expert to sustain the conviction."
31.2 The Hon'ble Apex Court in "Mahendra v. State of West Bengal" (1974) 3 SCC 409 held:
"9. On the evidence on the record, therefore, it is not possible to hold that the existence of the arms in the almirah were without the appellant's knowledge or that his possession of the arms was unconscious. His conviction under Section 25(1)(a) of the Arms Act, 1959 is, therefore, fully justified. It is, however, difficult to sustain his conviction under Section 27 of the Arms Act. There is no evidence to support the offence under that section and indeed the trial court has convicted him without properly applying its mind to the ingredients of that offence. The judgment of the trial court seems to suggest that mere possession of the arms would also constitute an offence under Section 27 of the Arms Act. This view is clearly not correct. But since no separate sentence was imposed under Section 27, it is unnecessary to say anything more about it than that the conviction under Section 27 must be quashed.
24 Cr. Appeal (DB) No. 1588 of 2022
32. In view of the critical analysis of the evidence on record, the impugned judgment of conviction and order of sentence passed by the learned trial court is based on the perverse finding and the same needs interference. Accordingly, this criminal appeal deserved to be allowed.
33. This criminal appeal is, hereby, allowed. The impugned judgment of conviction and order of sentence passed by the court below is, hereby, set aside.
34. Let the appellant be released forthwith if not wanted in any other case.
35. Let the record of learned trial court be sent back alongwith copy of judgment for necessary compliance.
(Subhash Chand, J.) Per Ananda Sen, J. : I agree (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated: 22/04/2024 RKM AFR 25 Cr. Appeal (DB) No. 1588 of 2022