Jharkhand High Court
Santu Singh ? Abhishek Jee ? Vinoy Jee ? ... vs State Of Jharkhand on 9 February, 2016
Author: Ravi Nath Verma
Bench: R.N.Verma
Criminal Appeal (D.B.) No. 556 of 2010
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(Against the judgment of conviction dated 28.04.2010 and
order of sentence dated 05.05.2010 respectively passed by
Additional Sessions Judge, F.T.C.-II, Latehar in Sessions Trial
No. 110 of 2007)
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Santu Singh @ Abhishek Jee @ Vinoy Jee @ Abhishek Kumar @
Abhishek Singh, son of Rumeshwar Singh, resident of
village- Sikid, PO & PS Balumath, District- Latehar
... ... ... Appellant
--Versus--
The State of Jharkhand .... .... ...Respondent
For Appellant : M/s. S.K.Murari & Rohit, Advocates
For the State : Mrs. Vandana Bharti, A.P.P.
PRESENT
The Hon'ble Mr. Justice R.R. Prasad
The Hon'ble Mr. Justice R.N.Verma
C.A.V. ON: 27/01/2016 Delivered on 09/02/2016
R.N. Verma, J. Calling in question the legality of the judgment of
conviction dated 28.04.2010 and order of sentence dated 05.05.2010
passed by the learned Additional Sessions Judge-cum-F.T.C.-II,
Latehar in Sessions Trial No. 110 of 2007 whereby the appellant
has been convicted under Section 25(1-b)a of the Arms Act and
under Section 17 of the C.L.A. Act and sentenced to undergo
rigorous imprisonment for three years on each count with fine of
Rs.1,500/- and 3,000/- respectively with default clause and also
found guilty under Section 25(1-A), Section 26(i) and (ii)/35 of
Arms Act and under Section 5 of the Explosive Substance Act and
sentenced to undergo rigorous imprisonment for ten years on each
count with fine of Rs.10,000/- each with default clause. The
appellant has further been convicted under Section 4 of the
Explosive Substance Act and sentenced to undergo rigorous
imprisonment for life with fine of Rs.10,000/- with default clause.
2. Filtering the unnecessary details, the prosecution case,
which is based on the self-statement of Sub-Inspector Bharat Ram
Officer in-charge of Balumath Police Station, Latehar recorded on
2
24.05.2007at Harkatwa Jungle, in short, is that at about 2:15 A.M. on the said night, he received telephonic call of Ravindra Kumar Rai (PW-1), the Officer in-charge of Latehar P.S. informing that M.C.C. (Maoist) extremist Santu Singh @ Abhisehk Jee @ Vinoy Jee has been arrested near Zere-Zere forest of village Dihi Murup and in his confessional statement disclosed that huge quantity of arms and ammunitions, bombs, cartridges, levy receipts and cash have been concealed in bunkers in Harkatwa Jungle adjacent to village Sikid. On the said information, the informant along with armed personnel of JAP-4 and Reserve Police personnel proceeded for the Harkatwa forest situated adjacent to village Sikid and reached there at 6:15 a.m. and met with officer in-charge of Latehar P.S. and from there along with armed force and the said apprehended M.C.C. extremist entered into Harkatwa Jungle as per the disclosure of the said extremist. In presence of the two independent witnesses namely Swatantra Singh (PW-9) and Ram Kumar Singh (PW-10), the police team started searching and came near a Nala on the information given by the said extremist and recovered one 500 liters of black plastic water tank from a bunker and after opening the cover of the said tank, found 100 kg. gelatin inside the said tank. Almost at a distance of 20 feet, the searching team found another bunker and at that place also, one 500 Litres black plastic water tank was found and after removing the cover, naxal literatures, uniform, jersey and belt were recovered. Again at a distance of almost 15 feet from the above bunker, 200 Litres of plastic jar was recovered and on opening altogether 11,403 live cartridges of different bores were recovered. Approximately 4,400 live cartridges of 0.315- 0.8 M.M. bores were recovered from the same plastic jar and 780 cartridges were also recovered. Besides the above, another 770 cartridges fitted in 154 chargers and 22 empty charges were recovered and from another Jar 250 cartridges of .30 calibers were recovered. From another 100 Ltrs. Plastic Jar, 424 live cartridges of 12 bors, 175 cartridges of special 12 bores kept in 7 packets, 170 live cartridges of special 12 bores kept in 17 3 Shaktiman Express packet, 2740/- cartridges of 30.06 bores kept in 137 packets were recovered and on his further disclosure, another plastic tank of 500 ltrs. from a distance of 12 feet from the previous tank was unearthed and regular 9 M.M. stengun with magazine with wooden butt having sealing of military colour and arsenal no. 22821, one regular rifle with magazine of 303 bores having rifle no. 01, marked-III of black colour sealing with arsenal no. AF-2206, three barrel of DBBL gun having length 30‖-30‖, one SBBL regular gun barrel in damaged condition having length of barrel 32‖, one country made single barrel rifle having length of barrel 36‖ with wooden body, one air gun having length of barrel 21‖ in damaged condition were recovered. Again at a distance of 17 feet, another bunker was found with 500 ltrs. of a tank and after removing the cover of the said tank, white and gray coloured electric were, one coil electric aluminum wire, mobile battery charger, 30 pieces detonators, telephone billing machine, cordless telephone with cord antenna, camera flash, calculator, mobile set of Motorola, soldering iron multimeter, mobile charger wire, pencil battery case were recovered. Further at a distance of 6 feet from the earlier bunker, another tank of 500 ltrs. was unearthed and after removing the cover, two pipe bomb cylinders, one big stapler of Rexel company and several other items including leather made revolver holster, 50 grams white powder kept in a plastic Dibba and explosive powder were recovered. On the instruction of apprehended Maoist, almost at a distance of 8 feet from the previous bunker, another 300 ltrs. water tank containing explosive substance in liquid form was recovered, which was destroyed then and there and from there at about 4 feet, two water tanks were also unearthed and from one tank, one Abhishek file, levy receipts and account of expenditure of the extremist were recovered and from another tank, extremist literatures in damaged condition were found. All the recovered articles were seized before the aforesaid two independent witnesses after preparing a seizure list and on the seizure list, the two independent witnesses voluntarily 4 put their signatures and the said extremist also put his signature voluntarily on the seizure list. The apprehended extremist further disclosed that he along with one Ram Kumar Ganjhu @ Lawlesh Jee of village Pepra Toli, Chhotu Kharwar @ Chhotu Jee of village Sikid and Khairu Parahia of village Sikid, who are the top commanders of extremist, have kept concealed all the recovered articles after constructing those bunkers and he alongwith Khairu Parahia were in conscious possession of the above recovered illegal articles and organizing extremist activities.
3. On the basis of the said self-statement of the informant, Balumath P.S. Case no. 31 of 2007 was instituted on 25.05.2007 and in course of investigation, the recovered arms and ammunitions were sent for ballistic examination and the explosive materials were sent to Forensic Science Laboratory, Ranchi and the reports of Forensic Expert and ballistic expert established that the samples on being tested confirms the explosive materials and also the arms in working condition. On completion of the investigation, the police submitted the charge sheet whereafter the cognizance of the offence was taken. The sanction order was obtained from the authority concerned under Arms Act and Explosive Substance Act. After commitment, the learned Additional Sessions Judge, Latehar framed the charges as indicated above against the appellant only.
4. The prosecution in order to prove the accusation examined 15 witnesses. Of them, PW 1- S.I. Ravindra Kumar Rai, an eye-witness to the occurrence, PW 2-Pawan Kumar Singh, Assistant Commandant, another eye witness, PW 3- S.I. Om Prakash and PW 4- S.I. Md. Rahid of C.R.P.F.-B Company, eye witness, PW 5- Hawaldar Maheshwar Oraon of Manika Police Station, PW 6 - Hawaldar Pradeep Pandey- an eye witness, PW 7 - Ravindra Prasad, Sargent Major, the Ballistic Expert, PW 8 - Radhe Shaym- Security Officer-another eye witness, PW 9 - Satwant Singh, seizure list witness, PW 10 - Ram Kumar Singh, another seizure list witness, PW 11- Tuleshwar Prasad Kushwaha-
5the I.O., PW 12- Lalan Kumar-a formal witness, PW 13- Ashutosh Kumar Sinha- Senior Scientific Officer, F.S.L., Ranchi, PW 14 - Bharat Ram, the informant and PW 15- Birendra Kumar Sharma- Commandant of 133 Battalion C.R.P.F. an eye witness to the occurrence.
5. Besides the oral evidence, prosecution has brought on record several documents and they were marked exhibits of which the relevant exhibited documents are as follows:-
(i) Ext.1- The ballistic expert report dated 04.06.2007.
(ii) Ext.2- Self-statement of the informant (FIR).
(iii) Ext. 3 series- Search-cum-seizure list and the signature of witnesses.
(iv) Ext. 5 series- Sanction order of competent authority under Arms Act and Explosive Substance Act dated 20.07.2007 and 04.01.2008 respectively.
(v) Ext. 6 series- F.S.L. report with signatures.
(vi)Ext. 7 series- Challan regarding production of material exhibits.
(vii)Ext. 8-Confessional statement of the accused leading to recovery.
6. The prosecution in order to prove the seizure of huge articles containing arms, ammunitions, explosives etc. produced in court all those articles and those material articles were marked as exhibits. The relevant material articles with exhibit marks are given hereinbelow for proper appreciation of the prosecution case:-
(i) Material Exhibit-I- Gelatin
(ii) Material Exhibit IV- Detonators fuse wire
(iii) Material Exhibit V series, VI series, VII series, VIII series, IX series, X series, XI series, XIX series, XX series, XXI series, XXII series, XXIII series, XXIV series are all live cartridges, which comes to almost 11,403 in number of different caliber and bores.
(iv) Material Exhibit XIII, XIV, XV, XVI and XVII series are sten gun, regular revolver, three barrels of DBBL gun, Single barrel gun, country made SBL gun, Air gun respectively.
(v) Material Exhibit XLIV is Abhishek File kept in recksin bag along with levy receipt and account of extremist.
(vi) Material Exhibit XLV - Water tanks of different capacities.
7. The trial court on the basis of the evidence brought on record, found the accused-appellant guilty of the charges and, accordingly, convicted him as indicated above. Hence, this appeal.
68. Learned counsel for the appellant assailing the impugned judgment of conviction and sentence as perverse and bad in law seriously contended that since the finding of the court below is completely based on testimony of the witnesses, who happen to be non-else but the police personnel, the prosecution case suffered from the vice of paucity of independent evidence. It was also canvassed that the court below without applying the judicial mind and appreciating the materials on record in its right perspective came to an erroneous conclusion relying upon the testimony of interested witnesses. Though the two independent witnesses PW 9 and PW 10, who were the seizure list witnesses had not supported the prosecution case. As such, the recovery of the alleged huge catch of arms becomes doubtful. It was vehemently contended that the conviction based on confessional statement, which was not voluntary, cannot sustain. Learned counsel further seriously contended that since the seized articles like arms and ammunitions and explosives were never sealed and marked properly, it is violative of the provisions of Section 52 of the Evidence Act. Learned counsel further submitted that the alleged recovery was made from an open place inside the jungle and not from the conscious possession of the appellant and the prosecution has miserably failed to prove either the actual possession or conscious possession. As such, the finding of the court below is vitiated and that the prudence dictates that evidence of police witnesses cannot be relied upon and need to be subjected to a strict scrutiny upon being them as interested witnesses and from the search-cum-seizure list (Ext.-3), it would appear that the same was prepared subsequently at the police station, since the case number with the name of Police Station is mentioned on the said list and this creates a doubt over the entire seizure and prosecution case. Lastly it was submitted that the conviction of the appellant under section 4 of the Explosive Substance Act is not sustainable rather at best the appellant would have been convicted under Section 5 of the said Act as there is no 7 allegation or evidence on record showing any explosion or any intention to explode the seized explosive substance. In support of his contention, learned counsel has relied on the judgment of the Hon'ble Supreme Court in the case Samsher Khan Vs. State (NCT) of Delhi; (2000) 8 SCC 568 and submitted that no evidence had been led in by the prosecution to show that by keeping those materials in concealed stage was likely to cause death to any person nor any evidence was brought on record to show that the appellant had the knowledge that by keeping those articles would possibly be caused to any one being without any other act being done and there was no explosion of any nature to endanger life or to cause serious injury to the property.
9. As against the above submission, learned counsel representing the State supported the conviction and sentence and pointed out that merely because the police witnesses have been examined, their entire evidence cannot be discarded and the entire seizure was made on the basis of voluntary disclosure of the appellant. Even if there are contradictions in the evidence of police witnesses, they are not of much relevancy and do not affect the very unimpeachable evidence of the witnesses.
10. Before we enter into the veils of submissions of the counsels, it is necessary to consider the most important circumstance for prosecution in this case, which is the disclosure of the accused-appellant and recoveries of huge catch of arms and ammunitions consequent upon such statements. The admissibility of the confessional statement made by the accused to the police as though not seriously challenged by the learned counsel for the appellant but it was argued that factually no such voluntary statement was made and even if the statement was made, was not admissible in evidence. Secondly, even if the seizure was made that was not from the conscious possession of the appellant.
11. Section 25 of the Evidence Act clearly mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly, Section 26 of the said Act 8 provides that confession made by the accused persons while in custody of police cannot be proved against him but the legislature at their wisdom carved out an exception by incorporating Section 27 of the Evidence Act, which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, the said information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Such statement is generally termed as disclosure statement leading to the discovery of facts or materials, which are presumably in the exclusive knowledge of the maker. The condition necessary to bring the section into operation is that the seizure of articles in consequence of information received from a person accused of an offence in the custody of a police officer must be deposed to, and thereupon so much of information as relates distinctly to the fact thereby discovery may be proved. It is no doubt, there is a chance of misuse by police and so the courts are required to be vigilant about its application. The court must ensure the credibility of the evidence by a witness because this provision is vulnerable to abuse but that does not mean that any statement made in terms of the aforesaid section should be seen with suspicion. The Section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that information was true and accordingly can be safely allowed to be given in evidence.
12. In the case Earabhadrappa Vs. State of Karnataka; (1983) 2 SCC 330, the Hon'ble Supreme Court while considering the applicability of Section 27 of the Evidence Act held that two conditions are prerequisite viz. (i) information must be such as has caused discovery of the fact, and (ii) the information must ―relate distinctly‖ to the fact discovered.
13. In another case State of Maharashtra Vs. Damu; (2000) 6 SCC 269, the Hon'ble Supreme Court held in paragraph 35 as follows:-
9"35. The basic ideal embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be sued as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya Vs. Emperor is the most quoted authority for supporting the interpretation that the „fact discovered‟ envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
14. In the instant case also, on the basis of the confessional statement of the appellant, huge quantity of the arms and ammunitions and explosive substances were seized from a place disclosed by the appellant. The question, which has come up for our consideration in view of submission of the learned counsel for the appellant, is whether the possession of the seized arms and ammunitions and explosive as shown by the prosecution was from the conscious possession of the appellant? The word ―conscious‖ means ―awareness of a particular fact‖. It relates to existence of mental state. This word ―possession‖ is not purely a legal concept but a polymorphous term and implies a right and involves power of control and intent to control. As regards, recovery of the arms and ammunitions under the seizure list can also be said to be in the conscious/constructive possession of the appellant. The Hon'ble Supreme Court in the case Mohan Lal Vs. State of Rajsthan; (2015) 6 SCC 222 examined this aspect and held in paragraph 11 as follows:-
"11. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody".
Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word "possession". The classical theory of the English law on the term "possession" is fundamentally dominated by Savigny- ian "corpus" and "animus" doctrine. Distinction has also 10 been made in "possession in fact" and "possession in law"
and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession".
Thus, there is a degree of flexibility in the use of the said term and that is why the word "possession" can be usefully defined and understood with reference to the contextual purpose for the said expression. The word "possession" may have one meaning in one connection and another meaning in another."
The Hon'ble Supreme Court while dealing with term ―possession‖ in paragraph-12 of the said judgment has further held that the said term consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. The Hon'ble Court has further discussed the definition of possession given in Black‟s Law Dictionary and held that the said word ―possession‖ in view of the above dictionary means a control over the thing with the intent to have and to exercise such control. It has further been explained that the law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. To constitute ‗possession' of a concealable weapon under statute proscribing possession of a concealable weapon, it is sufficient that the person has constructive possession and immediate access to the weapon.
15. Now, in the light of above discussions, let us scrutinize the evidence of prosecution witnesses. P.W.1 Ravindra Kumar Rai, who was the officer in-charge of the Latehar Police Station, has testified that on 23.05.2007 at about 9.00 P.M., he received secret information that the appellant- a C.P.I. Maoist is about to move village Sajju through Zere-Zere jungle in the night and thereafter on the instruction of the senior police officers, he along with Assistant Commandant Pawan Kumar Singh (PW 2) of C.R.P.F. Battalion along with Platoons reached Zere-Zere jungle at about 11 11:30 P.M. and at about 0.10 hours, he saw light of motorcycle coming from Dihi Murum village side and when the motorcycle came near, he gave signal to stop, but the motorcyclist tried to escape from there by turning his motorcycle but the pillion rider fell down and tried to escape towards forest. On chase, he was apprehended but the person driving the motorcycle anyhow managed to escape. The witness has further testified that on interrogation, the apprehended persons disclosed his name as Santu Singh @ Vinoy Jee, @ Abhishek Jee (the appellant) and further disclosed that he is the Zonal Commander of C.P.I. Maoist. The apprehended person was searched before two independent witnesses Satwant Singh (PW-9) and Ram Kumar Singh (PW 10), who had accompanied with the informant (P.W. 14) and on search, one six round regular revolver of Bebbly scot loaded six cartridges of .384 bore was recovered from his waist, 5 live cartridges of .384 bore were also recovered from his left pocket besides the currency note worth Rs. 81,000/- and two Nokia Mobile Sets, levy receipt and other documents. The apprehended person further disclosed about the huge concealment of arms and ammunitions and explosives in water tanks in Harkatwa Jungle situated almost one kilometer away from village Sikid. After receiving this disclosure statement, the witness immediately informed to the S.P. Latehar and requested him as well as the Officer in-charge, Balumath Police Station to come to the village Sikid with additional police force and the seizure witnesses along with other police force moved towards village Sikid. After sometime, S.P., Latehar along with B.K.Sharma (PW -15), the Commandant of 153 Battalion C.R.P.F., Armed Personnel of C.R.P.F., Officer in-charge of Balumath P.S. Bharat Ram (PW-14) and JAP forces reached there. They took search of Harkatwa jungle on pointing of the apprehended accused and recovered cartridges, explosive detonators, stengun, regular rifle, DBBL gun and naxal literatures kept concealed in water tanks at 10 places. All the water tanks were kept concealed under earth and they were all belonging to 12 Maoist organization. The witness has given a vivid description of the seized articles and seizure list was prepared. This witness during extensive cross-examination has deposed that he had recorded the confessional statement of the accused-appellant in Harkatwa Jungle on the separate sheet at the time of incident itself and all the seized articles were sealed and signatures of witnesses were also obtained. The witness during his re-examination has deposed that at the time of recovery at Harkatwa Jungle, the Officer in-charge, Bharat Ram of Balumath Police Station, Commandant of C.R.P.F. Pawan Kumar Singh and Armed Police Constables were also present. The above witness was extensively cross-examined by the defence but nothing was elicited during his cross-examination to impeach or question the truthfulness of the witness.
16. The another most important witness is PW- 14 Bharat Ram, the informant, who on 24.02.2007 was posted as Officer in- charge of Balumath police station and on the self-statement of this witness, the instant case was instituted. This witness in his evidence has testified that he recorded his self-statement in Harkatwa Jungle at 05:15 a.m. On the said date at about 2:15 at night, he received a telephonic information from the Officer in- charge, Latehar (P.W.1) that Maoist extremist Santu Singh @ Abhishek Jee has been arrested with arms, ammunitions, levy receipts and cash in Zere-Zere jungle of Dihi Murum and also informed that the accused Abhishek Jee has confessed that he has concealed a large number of arms, ammunitions, explosives, levy receipts, extremist's literature under the earth by making bunkers. On the basis of the said information, he informed the senior police officers and alongwith police party proceeded for Harkatwa Jungle and reached in the said Jungle at 06:15 a.m. and met with Officer in-charge of Town Police Station and then at the pointing out of the apprehended person, this witness along with police personnel and the said apprehended person entered into the Harkatwa jungle and started the search operation with the help of 13 Officer in-charge of Town Police Station along with other police officers and C.R.P.F. personnel. The Officer in-charge of Town Police Station had reached there with two independent witnesses namely Satwant Singh and Ram Kumar Singh and the entire search operation was conducted in their presence and huge quantity of arms and ammunitions and explosives, levy receipts, cartridges of different bores kept in tank and buried in the earth were recovered. The witness has further testified that all those articles were buried within the radius of 20-30 feet. They had also recovered water tanks of different capacities and explosives from the tank of 500 ltrs. of capacity, which was destroyed at the spot itself. The witness has also stated that he had prepared the seizure list (Ext.-3) and on the said seizure list, he had obtained the signatures of the two seizure list witnesses as also the signature of the apprehended appellant. The witness has further deposed that in a water tank of a capacity of almost 300 ltrs., regular stengun, rifle, 3 DBBL gun and from two water tanks of 100 ltrs. capacity, live cartridges of different bores were recovered and from one water tank, gelatin was also recovered. The levy receipts, Abhishek File and details of expenditure were recovered from another tank and some of the seized articles were packeted and properly sealed. During cross-examination, the witness has stated that the water tanks were firstly brought to the police station and there those were sealed. He has further deposed that he had not arrested the accused-appellant and even he had not recorded his confessional statement but while the accused-appellant was making his confessional statement, he was also present there.
Apparently, this witness has fully corroborated the evidence of PW-1 to the extent of seizure of the arms and ammunitions and other articles. This witness on recall had produced all the seized articles tallying with the seizure list in court and accordingly, the seized articles were marked as exhibits and has also stated that the arms and ammunitions and explosives were sent to the respective experts i.e. Ballistic Expert and Forensic 14 Expert and they found the articles in working condition and explosive substance respectively. The witness has also stated that on almost all the seized articles, Police Station Number and M.R. Number were mentioned in his handwriting with his signature. Even after extensive cross-examination, nothing could be elicited from him also by the defence to declare his testimony untrustworthy or unreliable.
17. The other eye-witnesses of the seizure PW 2- Pawan Kumar Singh, PW 3- Om Prakash, PW 4- Md. Rashid, PW 5- Hawaldar Maheshwar Oraon, PW 6-Pradeep Pandey, PW 8- Radhey Shyam and PW 15- Birendra Kumar Sharma have all fully corroborated the fact that huge quantity of arms and ammunitions and explosives were seized by the police personnel.
18. The Investigating Officer PW 11- Tukeshwar Prasad Kushwaha has fully supported the recovery and seizure of the articles and that he obtained the prosecution sanction from the Deputy Commissioner, Latehar under the Arms Act as well as the Explosive Substance Act. The witness has also testified that after taking charge of investigation, he sent the arms and ammunitions for its examination by Ballistic Expert and also sent the explosive substance to Forensic Science Laboratory, Ranchi for its chemical examination after obtaining permission of C.J.M., Latehar and subsequently obtained the reports. The witness has also testified that since the seized articles were in huge quantity, he divided it in many parts with permission of the C.J.M., Latehar and, thereafter, it was separately sealed.
19. The two seizure list witnesses PW-9 and PW-10 have though identified their signatures on the seizure list but they were declared hostile.
20. PW-7 Ranvindra Prasad, the ballistic expert, has testified that he received cartridges of different caliber and bore and also regular rife, SBBL gun, stengun and DBBL gun in sealed packets and they were all found live in working condition. The witnesses has further stated that all the cartridges were live as 15 there was no striking pin mark at the bottom cap of the cartridge. Though the witness in cross-examination has stated that no sticker was pasted on those items though they were in packet and properly sealed.
21. PW-13 Ashutosh Kumar Sinha- the Forensic Expert has testified that on 25.06.2007, he had received one sealed cardboard related to Balumath P.S. Case No. 31 of 2007 and after opening, he found three polythene pakcets inside the cardboard, which contained two aluminium detonators about 5 c.m. and 4.5 c.m. attached with electric wire and in another polythene packet, brown colour substance along with brown colour paper was separately marked. On examination, high explosive mixture of Lead Azide and Lead Stiphnate were detected and the detonators were also found alive and effective. In one polythene, mixture of Nitro Glycerin, Nitro Cellulose and Potassium Nitrate were detected and the brown colour substance was live and high explosive mixture. The witness during cross-examination stated that the sample, which he had received had contained the signature of Chief Judicial Magistrate and seal of the Court.
22. We have further examined the statement of the accused-appellant recorded under Section 313 of the Code of Criminal Procedure. The accused was confronted with the incriminating materials collected in course of the trial, to which his reply was only of his false implication in the instant case and simple denial. The accused in his reply to the last question had stated that he had gone to Jamshedpur on 21st May, 2007 for the treatment of his child and from where he was apprehended and brought to Latehar and after keeping him in police station for 3-4 days, he was produced in Court.
23. From the evidence of the witnesses, which have been discussed above, we find that the prosecution by cogent evidence has fully established the case of seizure of huge catch of arms, 16 ammunitions, explosive materials and other articles and by producing those incriminating articles in Court proved the case beyond all reasonable doubts. The evidence of witnesses regarding the recovery of the illegal fire arms from the conscious possession of the appellant are consistent and trustworthy. Nothing specific has been assailed by the learned counsel for the appellant so as to make the evidence of those witnesses unreliable or unbelievable. We may point out that the appellant made no allegation at any stage of the case that there was any tampering with the seized articles at the instance of police. Not even a suggestion was made to any witness to that effect. That apart, the particulars of the weapon were given in the seizure memo and the same tallied with the arms and ammunitions produced in the Court. There is practically no challenge to the seizure memo admittedly prepared at the time of recovery of those arms and ammunitions.
24. We are not impressed by the contention of the learned counsel for the appellant that no independent witness was examined by the prosecution except the two seizure list witnesses PW- 9 and PW- 10 and both denied the seizure and declared hostile. The witnesses examined were all police personnel and they being interested witnesses cannot be relied upon. We may point out that merely because the seizure list witnesses examined at trial had turned volte face and seizure and guilt was sought to be established with the testimony of police officials, ipso facto credibility of police witnesses cannot be questioned and discarded if they are found to be reliable and trustworthy.
25. We are, therefore, in agreement with the finding recorded by the trial court that the appellant was in conscious possession of huge quantity of arms and ammunitions besides the explosive substance and other seized materials in violation of law and the court below has rightly convicted him under Arms Act.
1726. So far as the submission of the learned counsel for the appellant that the conviction of the appellant under Section 4 of the Explosive Substance act is not sustainable, we have given our conscious thought over his submission. For better appreciation of submission of learned counsel for the appellant, a reference of Section 4 and 5 of the Explosive Substance Act is necessary, which is reproduced hereinbelow:
"Section 4.- Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.- Any person who unlawfully and maliciously-
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,-
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 5. Punishment for making or possessing explosives under suspicious circumstances.- Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished,-
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
1827. On bare perusal of the aforesaid two provisions, it appears that there is very thin line of distinction between the two provisions and the punishments prescribed therein and the endeavour of the learned counsel for the appellant was to bring the case within the provision of Section 5 and not within the ambit of three alternatives of Section 4 of the said Act. Apparently, prosecution has not brought on record any evidence to show that any act with intent to cause or to endanger life or to cause serious injury to the property was made at the instance of the appellant. We are also of the opinion that the prosecution has not brought on record any substance or any evidence by which a court could remotely attribute knowledge to the appellant that by keeping and possessing the seized materials, death of any person was a likely consequence. By concealing and keeping or possessing those materials, no one can normally think that it would explode without anything more being done. Hence, we find that the conviction of the appellant by the court below under Section 4 of the Explosive Substance Act is not sustainable.
28. On the basis of the evidence discussed above, we are constrained to hold that the appellant was in conscious possession of seized materials or in other words, those seized materials were under his control and nothing has been brought on record on behalf of the appellant to show that those materials he had kept under his control were for a lawful object. As per the requirement of Section 5, the onus was upon the appellant to show that those seized articles/ materials were in his possession or under his control for a lawful object. We find that the court below has rightly convicted the appellant under Section 5 of the Explosive Substance Act. The sentence awarded by the trial court in the circumstance of the case needs no interference.
29. In the result, we partly allow this appeal and set aside the conviction and sentence passed on the appellant for the 19 offence under Section 4 of the Explosive Substance Act. Accordingly, the appellant is acquitted of the charge under Section 4 of the Explosive Substance Act. But, the appellant cannot escape from the other counts for which he was convicted and sentenced. We affirm the conviction and sentence in regard to those counts. This appeal with the aforesaid modification is dismissed.
(Ravi Nath Verma, J.) I agree.
R.R.Prasad, J.
(R.R.Prasad, J.) Jharkhand High Court, Ranchi Dated the 9th February, 2016 NAFR/Ritesh