Patna High Court
Sanjeev Kumar Yadav @ Sanjeev Kumar @ ... vs The State Of Bihar on 2 January, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.155 of 2015
Arising Out of PS.Case No. -77 Year- 2012 Thana -SARSI District- PURNIA
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Sanjeev Kumar Yadav @ Sanjeev Kumar @ Dalda Yadav @ Dalda, son of
Ghan Shyam Yadav, Resident of village- Murliganj, P.S.- Murliganj, District-
Madhepura
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Uday Chand Prasad-Advocate
Mr. Manoj Kumar-Advocate
For the Respondent/s : Mr. Abhay Kumar-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 02-01-2018 Appellant Sanjeev Kumar Yadav @ Sanjeev Kumar @ Dalda Yadav @ Dalda has been found guilty for an offence punishable under Section 393 of the I.P.C., but he has not been sentenced thereunder, under Section 398 of the I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs.10,000/- and in default thereof, to undergo S.I. for three months, under Section 25(1-B)a of the Arms Act and sentenced to undergo R.I. for two years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo S.I. for three months, under Section 26(i)/35 of the Arms Act and sentenced to undergo R.I. for two years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 2 to undergo S.I. for three months, additionally, with a further direction to run the sentences concurrently with a further direction to set off of the period having undergone during course of trial in terms of Section 428 of the Cr.P.C. by the Additional Sessions Judge-3rd, Purnea in Sessions Trial No.59 of 2013.
2. The prosecution case in nutshell is as follows:-
informant, Raghunandan Yadav (PW-6) on 16.10.2012 at about 11.50 a.m. while was going to deposit Rs.3,84,000/- to the State Bank of India, Sarsi Chowk Branch and as soon as reached at Sarsi Chowk, three motorcycle borne criminals intercepted him and one of them on the pretext of firearm, attempted to snatch away bag containing the amount. During course of sitting over motorcycle, he was caught hold by the informant from behind as a result of which, he fell down. On an alarm raised by the informant, so many persons assembled, caught hold the miscreant. During course thereof, police party also arrived and took control over the miscreant, who disclosed his identity as Sanjiv Kumar Yadav @ Dalda (appellant) and further, a loaded arm was seized which he carrying in his hand and further, on search, four live cartridges were seized and for that, seizure list was prepared in presence of PW-2 Bijendra Kumar Sah and PW-3 Atul Kumar Singh. His fard-bayan was also recorded at that very moment, whereupon Sarsi P. S. Case No.77 of 2012 was registered followed with an Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 3 investigation as well as submission of chargesheet facilitating the trial which concluded in a manner, subject matter of instant appeal.
3. Defence case, as is evident from mode of cross-
examination as well as statement under Section 313 of the Cr.P.C. is that of complete denial of the occurrence. Furthermore, it has specifically been pleaded that appellant has been arrested on mistaken identity. Nothing has been recovered from his possession, but only to justify his detention, recovery has been shown. However, neither ocular nor documentary evidence has been adduced on behalf of defence.
4. It has been submitted on behalf of learned counsel for the appellant that the conviction and sentence recorded by the learned lower court happens to be wrong, illegal, perverse, cryptic on account of non-appreciation of the materials in its right perspective. In order to justify the same, it has been submitted that false implication/ mistaken identification of the appellant is itself apparent from the fact that from the evidence of the PWs, it is evident that the petrol pump of which, informant happens to be Munshi lies at a distance less than half kilometer from the alleged P.O. That being so, presence of PW-2, who happens to be nozzle man of the aforesaid petrol pump and PW-3, who happens to be son of owner of the aforesaid petrol pump would Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 4 not have been, more particularly as seizure list witnesses and their presence is sufficient to disown the prosecution case. In likewise manner, it has also been submitted that none of the witnesses have stated that during course of commission of the alleged occurrence, appellant had put the informant (PW-6) under threat of murder/ grievous hurt with the firearm (deadly weapon) which he was possessing and that being so, no offence under Section 398 of the I.P.C. is made out. In the aforesaid eventuality, in worst case, even accepting the version of the prosecution that there was attempt, it would be only under Section 393 of the I.P.C. along with Section 25(1-B)a, 26(i)/ 35 of the Arms Act and for that, appellant remained under custody for more than two and half years. So, maintaining the conviction under Section 393 of the I.P.C. as well as under Section 25(1-B)a, 26(i)/ 35 of the Arms Act, in absence of criminal antecedent the period already undergone will satisfy the sentence.
5. On the other hand, learned Additional Public Prosecutor opposed the submission made on behalf of learned counsel for the appellant and submitted that firearm was recovered from the possession of the appellant at the spot is indicative of the fact that he was in possession of the deadly weapon which he used during course of commission of the crime and that being so, learned lower Court rightly convicted and sentenced the appellant for an offence Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 5 punishable under Section 398 of the I.P.C. along with other allied offences. That being so, instant appeal is fit to be dismissed.
6. In order to substantiate its case, prosecution had examined altogether eight PWs, who are PW-1 Ramanuj Singh, I.O., PW-2 Bijendra Kumar Sah, one of the seizure list witnesses, PW-3 Atul Kumar Singh, another seizure list witness, PW-4 Jitendra Kumar Singh, PW-5 Neetu Singh, PW-6 Raghunandan Yadav, PW-7 Ranjeet Pandey, Sergeant Major and PW-8 Vimal Kumar the than O/c of Sarsi P.S. as well as had also exhibited the documents viz. Exhibit-1, the endorsement on the fard-bayan, Exhibit-2 signature of Vimal Kumar on fard-bayan, Exhibit-3 seizure list, Exhibit-4 sanction order, Exhibit-5, examination report of arms expert, Exhibit-6 signature of witness Atul Kumar Singh on the seizure list, Exhibit-7 signature of witness Bijendra Kumar on seizure list, Exhibit-8 signature of Atul Kumar on the fard-bayan, Exhibit-9, signature of Raghunandan Yadav on fard-bayan, Exhibit-10, signature of arms expert on the pistol, Exhibit-11 to 11/d five cartridges, Exhibit-12, signature of expert on the examination report, Exhibit-13, fard-bayan, Exhibit-14, signature of Vimal Kumar on his endorsement and Exhibit-15, signature of Vimal Kumar on seizure list.
7. From the fard-bayan as well as from the evidence of Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 6 PW-6, Raghunandan Yadav, it is evident that he was alone while in a way from petrol pump to State Bank of India, Sarsi Branch in order to deposit cash appertaining to Rs.3,84,000/-. It is evident that in the fard-bayan, there was specific disclosure with regard to activity of the accused, who had brandished his pistol during course of making an unsuccessful attempt to commit robbery by way of snatching a bag from the possession of the informant containing cash appertaining to Rs.3,84,000/-, but during course of evidence, he had simply stated that while carrying Rs.3,84,000/- in a bag from petrol pump on 16.10.2012 at about 11.00 a.m. and as soon as he reached at Sarsi Chowk, one boy after snatching his bag, sat over motorcycle, who was caught hold by him from behind and pulled down. During course thereof, so many persons rushed, apprehended, snatched away bag. Police also arrived and took control over the miscreant. Then he was searched and during course thereof, a loaded pistol along with four cartridges were recovered from his possession in presence of two seizure list witnesses namely Bijendra Kumar and Atul Kumar Singh for that seizure list was prepared. His fard-bayan was recorded. The accused further disclosed names of his associate, who succeeded in their escape, identified the accused in dock. So, from his evidence, it is apparent that he had given some slip from his initial version which the prosecution failed to perceive and that happens to be with regard to Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 7 absence of positive material having with regard to an allegation against the appellant that during course of commission of robbery, he had shown firearm as well as had put the informant (PW-6) under threat of life. Mere recovery of firearm, when it has not been used in order to keep the victim under fear of death or grievous hurt during course of commission of robbery will not attract Section 398 I.P.C., though recovery may justify his conviction and sentence relating to Section 25(1-B)a, 26(i) of the Arms Act. Moreover, conviction and sentence under Section 26(i) of the Arms Act is indicative of the fact that arms and ammunition were kept, concealed in such manner that it could not be known to the public servant regarding its possession by an accused. So far evidence of other witnesses are concerned, in the background of evidence of PW-6, remaining evidences are not relevant on that very score. Because of the fact that there happens to be recovery from the conscious possession of the appellant, on account thereof, there happens to be no applicability of Section 35 of the Arms Act.
8. That being so, the conviction and sentence recorded by the learned lower Court with regard to Section 398 of the I.P.C. is set aside maintaining the conviction and sentence relating to Section 393 of the I.P.C. as well as Section 25(1-B)a, 26(i) of the Arms Act. From the judgment impugned, it is further evident that appellant has Patna High Court CR. APP (SJ) No.155 of 2015 dt.02-01-2018 8 been sentenced to undergo R.I. for two years as well as to pay fine appertaining to Rs.5,000/- relating to both the Sections of the Arms Act while no sentence has been passed by the learned lower Court relating to Section 393 of the I.P.C., which is upto seven years. That being so, the sentence relating to Section 393 of the I.P.C. is hereby identified as period already undergone as appellant remained under custody from 17.10.2012 to 22.05.15, on which date, he has been granted bail by this Court. In terms thereof, this appeal is partly allowed.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 06.01.2018 Transmission 06.01.2018 Date