Patna High Court
Dasrath Yadav vs The State Of Bihar on 22 July, 2014
Author: Gopal Prasad
Bench: Gopal Prasad
Patna High Court CR. APP (SJ) No.783 of 20131dt.22-07-2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.783 of 2013
Against the judgment and order of conviction and sentence dated 07.12.2013
and 09. 12. 2013 passed by Sri Ashok Kumar Srivastava II, Ad hoc
Additional District & Sessions Judge II, Bagaha, District West Champaran,
in S. Tr. No. 91 of 2012/S. Tr. No. 244 of 2012 arising out of Bagaha P.S.
Case No. 264 of 2011/Bagaha P.S. Case No. 265 of 2011 for offence under
Sections 395/411 IPC and Section 25(1-B) of Arms Act.
Arising Out of PS.Case No. -265 Year- 2011 Thana -BHAGHA District-
WESTCHAMPARAN(BETTIAH)
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Dasrath Yadav, S/O Lalji Yadav, resident of Village- Puar House, P.S. Bagaha,
District- West Champaran.
.... .... Appellant.
Versus
The State of Bihar
.... .... opposite party.
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Appearance :
For the Appellant : Mr. Ravi Shankar Sahay, Advocate.
Mr. Vijay Kumar Singh No. 1, Advocate.
For the State : Smt. Abha Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL JUDGMENT
Date: 22-07-2014
Gopal Prasad, J.Heard learned counsel for the appellant and learned counsel for the State.
2. The appellant have been convicted under Section 25(1- B) of Arms Act and sentenced to under rigorous imprisonment for two years and fine of Rs.1000/- (Rupees one thousand) and in default of payment of fine he shall undergo rigorous imprisonment for one month.
3. F.I.R. was lodged on the basis of statement of S.I. A. Dutta of Officer-in-Charge, Bagaha Police that on 13. 07. 2011 at 2.45 P.M. he got information that a lady has been looted and on said information he along with police party proceeded by the Jeep and reached at the P.O. where several villagers were collected and it was learnt that Rs. 46,700/- has been snatched by criminals from one Most Patna High Court CR. APP (SJ) No.783 of 20132dt.22-07-2014 Bachni Devi and while miscreants were fleeing away after snatching, the villagers chased and caught hold of two persons namely, Dasrath Yadav and Md. Kaif. On search from the waist of full pant of Dasrath Yadav one country made revolver loaded with cartridge 0.38 recovered for which information was given and seizure list was prepared.
4. However, two cases were instituted. One case was instituted for offence under Section 395 I.P.C. bearing Bagaha P.S. Case No. 264 of 2011 out of which S.T. No. 91 of 2012 arise and another case was instituted for offence under Section 25 and 26 of the Arms Act bearing Bagaha P.S. Case No. 265 of 2011 out of which S.T. No. 244 of 2012 arise. Both the cases were clubbed together and trial by the Sessions Judge and both the cases disposed off by same judgment. However, the appellant has been acquitted for offence under Section 395 I.P.C. but convicted under Section 25 and 26 of the Arms Act. So this appeal against the order of conviction passed under Section 25 and 26 of the Arms Act.
5. Fourteen witnesses were examined. Seizure list prepared which has been marked as Exhibit-1 with regard to recovery of revolver from the possession of the appellant.
6. During trial, P.W. 12, 13 and 14 have supported the prosecution case regarding recovery of fire arms from the possession of this appellant. Seizure list has been proved as Exhibit-1 by the informant-I.O. P.W.11 is Sergeant Major who has deposed that he examined fire arms recovered from the possession of the appellant and taking into consideration the evidence of P.W. 10, 11, 12, 13 and 14, the trial court convicted and sentenced the appellant as mentioned above.
7. Learned counsel for the appellant however contends Patna High Court CR. APP (SJ) No.783 of 20133dt.22-07-2014 that seizure list witness has not been examined. The informant has been prepared the seizure list who is himself Investigating Officer and has contended that informant being I.O. has always been deprecated. It has further been contended that informant has not stated anything prior to the recovery and preparing seizure list. It has further been contended that the informant in the seizure list has not mentioned that he put any mark on the fire arms and hence contended that prosecution has not been able to prove the charge framed against the appellant.
8. Learned counsel for the State however, contends that there is cogent and reliable evidence that the appellant was apprehended and on search one country made revolver along with cartridge was recovered from his possession. P.W. 8, 10, 11, 12, 13 and 14 have supported the prosecution case. It has been deposed by the witnesses that seized fire arm was examined by the Sergeant Major and Sergeant Major has given his report which has been marked as Ext. 10. The seizure list has been proved and examination of the arms by the order of the A.C.J.M. has been done.
9. On the respective submission, the question for consideration whether the prosecution has been able to prove the charges. The objection raised that the informant being a member of the raiding party and before whom arms were recovered is also I.O. of the case. It is also true that informant being I.O. deprecated but there is no law or prohibition in law that informant cannot be an I.O. the only principle for deprecation is that a consideration of bias. Thus unless the prosecution able to show the bias or he has been prejudice by the investigation by I.O. the bare objection that informant is I.O. is of no consequence.
10. However, P.W. 8, 10, 12 and 14 have stated in their Patna High Court CR. APP (SJ) No.783 of 20134dt.22-07-2014 evidence that firm arm was recovered from the possession of the appellant. Seizure list has been prepared which has been proved and marked as Exhibit-6. The informant has proved seized article exhibit 1 and 2 revolver and cartridge produced from Malkhana and P.W. 11, has proved seized revolver and cartridge which he examined and found the same is effective.
11. However, learned counsel for the appellant has challenged that it is not proper that investigation be done by the P.W.10, who is himself informant and I.O. However, merely on the ground the prosecution case cannot be disbelieve and if evidence found to be reliable and trustworthy. Though, P.W. 8, 10, 12, 13 and 14 have identified the appellant, Dasrath Yadav, the person, from whose possession seized article was recovered. P.W. 10 has proved the said article as material exhibit 1 and 2. P.W. 11 has also deposed that these are the articles which were produced before him in court were the same articles which he has examined and found to the effective.
12. Learned counsel for the appellant however challenged the order of sentence on the ground that there are some contradictions, infirmities evidence of witnesses. However, infirmities pointed about contradiction are minor in nature. However, on this ground, the prosecution story cannot be disbelievable. It has further been contended that informant has not been stated in his evidence he has given his search report before proceeding for search and seizure. However, no question has been raised in cross-examination in this regard.
13. However, P.W. 10 in his evidence in cross-
examination in para 20 stated that before proceeding to search he has not given his search report and hence in view of evidence of this Patna High Court CR. APP (SJ) No.783 of 20135dt.22-07-2014 witness, P.W. 10, there is no merit in the submission and since P.W.11 has proved that he examined the seized articles produced before him and articles recovered from the possession of the appellant was fire arms are effective. However, great emphasize in para 21 of the evidence of P.W. 10 that Malkhana register has not been produced. and P.W. 10 stated that in the seizure list he has not made any sign. However, in genuineness to this fact, he has further stated that after recovery of arms, case number is mentioned on it and thereafter is deposited in Malkhana. In the evidence of P.W.11 stated that arms produced before him are the same arms recovered from the possession of the appellant.
14. Having regard to the facts and circumstances of the case, I do not find any illegality in the order of conviction recorded by the trial court and hence the same is confirmed and appeal is dismissed.
15. Learned counsel for the appellant however submits that having regard to the sentence is concerned, two cases were instituted for offence under Section 395 I.P.C. and Section 25 and 26 of the Arms act as both act done in same transaction. The appellant apprehended in connection with alleged robbery of a woman and from his possession the arms was recovered and hence two cases were instituted; one under Section 395 IPC and other under Section 25 and 25 of the Arms act. Two cases were proceeded together by the order of Hon'ble High Court. From perusal of the order, it appears that appellant remained in jail custody since the date of his apprehension on 13. 7. 11. However, bail was granted in the case for offence under Section 25 and 26 of the Arms Act i.e. Bagaha P.S. Case No. 265 of 2011 and even on submission of bail bond, though, bail bond accepted and release order was issued but the appellant did not release as his Patna High Court CR. APP (SJ) No.783 of 20136dt.22-07-2014 bail for offence under Section 395 IPC in Bagaha P.S. Case No. 264 of 2011 was rejected and case was ordered to be heard together in view of the order of the Hon'ble Court. Hence both the cases proceeded analogously, although, the appellant has been acquitted under Section 395 IPC but convicted under Section 25 and 26 of the Arms Act and remained in jail for more than three years, but since he was granted bail for offence under Section 25 and 26 of the Arms Act, though, release order was issued, it appears that he was deemed to have been released in Bagaha P.S. Case No. 264 of 2011 but the appellant in fact not release from jail since both the cases were being heard together analogously and so at the time of judgment it was ordered that his bail bond was cancelled and taken in custody and he was shown to have been remanded on the date of judgment in this case.
16. It is submitted that in fact the appellant remained in jail since date of his apprehension on 13. 07. 2011. But since he was granted bail for offence under Section 25 and 26 of the Arms Act and fill up bail bond and in pursuance a release order was issued, so he was deemed to be released in the case from the date of his filing the bail bond on 19.03. 2012 and was deemed to be on bail till the date of conviction. However, in the order sheet it shows that on the date of judgment of this case he was produced from jail but having acquitted in case for offence under Section 395 I.P.C. and convicted for offence under Sections 25 and 26 of the Arms Act and was shown that his bail bond cancelled and taken in custody.
17. Hence, though, he remained in jail for three years, but subsequently, he remained in jail for fifteen months for offence under Sections 25 and 26 of the Arms Act, even it be taken that release order was issued on 19. 03. 2012 after acceptance of his bail bond for Patna High Court CR. APP (SJ) No.783 of 20137dt.22-07-2014 offence under Section 25 and 26 of the Arms Act.
18. Regard being had to the fact that at the end of justice shall meet by modification in sentence for the period already undergone. The appellant is released forthwith if not required in any other case.
m.p. (Gopal Prasad, J)
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