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Muni Singh v/s State of Bihar

    Cri.A.(SJ) 98 Of 1992

    Decided On, 19 October 2005

    At, High Court of Bihar


    For the Appearing Parties: Ajay Kumar Thakur, Ali Mozaffar, Advocates.

Judgment Text

(1.) This appeal is directed against the judgment and order dated 4-6-1992 passed by Ist Additional Sessions Judge, Nawadah, in Sessions Trial No. 2 of 1988/28 of 1982 convicting and sentencing the appellants to undergo R. I. for 3 years under S. 25{A) of Arms Act, R I. for 5 years under Secton 26 of Arms Act and R. I. for 7 years under S. 5 of Explosive Substances Act. All the sentences were, however, ordered to run concurrently. Appellants were convicted under S. 35 of Arms Act but no separate sentence was awarded under this count.

(2.) Prosecution case, in short, is that informant Sureshwari Pandey (not examined) on 24-10-80 while investigating another case registered as Hasua P. S. Case No. 10/80 received secret information that appellants had kept stolen articles in their village. Informant entered this information in Station Diary as Entry No. 431 dated 24-10-80 and along with Sayabuddin and Md. Sayeed, both Executive-Magistrates (not examined), SI Govind Prasad (PW-4), Hawildar Dasarath Sah (PW-1), constable Ram Sumer Singh (PW-2), constable Gulzar Rai (PW-3), constable Naslmul Haque (not examined), constable Ramanand Ram (not examined) along with Dy. S. P., Nawadah and Hawildar Parshuram Singh (not examined), constable Ram Prasad Singh (not examined), constable Sukhdeo Paswan (not examined), constable Yogendra Mandal (not examined) and constable Ram Prakash Singh (not examined), proceeded for village of appellants and after reaching there surrounded the Joint house of the appellants. A search of the Joint house of the appellants was made in presence of Independent witnesses namely, Girija Nandan Pandey (not examined) and Suresh Singh (PW-5). During course of search appellant Parsuram Singh fled away from the house, appellants Rajendra Singh and Muni Singh were apprehended and on their indication countrymade gun and countrymade pistol were recovered from the tiled roof and a broken box. Six live cartridges and one tin containing explosive powder in small 'puriyas' were also recovered. Seizure list was prepared.

(3.) On the basis of written report of informant (Ext. 3), formal FIR (Ext. 2) under Sections 353/186, I. P. C. and 25/26/35 of Arms Act as well as under S. 5 of Explosive Substances Act was drawn and after Investigation chargesheet was submitted under the aforesaid sections and appellants were put on trial and after trial they were found guilty and were convicted and sentenced as indicated above.

(4.) The case of appellants is of complete denial of charges framed against them.

(5.) Altogether 7 witnesses have been examined on behalf of the prosecution to prove its case. Ram Sharan Jha (PW-7) is a formal witness who has proved sanction order of District Magistrate, Nawadah (Ext. 5) granting sanction for prosecution of appellants under the provisions of Arms Act. He has also proved another sanction order (Ext. 6) of the District Magistrate, Nawadah granting sanction for prosecution of appellants under Explosive Substances Act. Gulzar Rai (PW-3) is a tendered witness. Suresh Singh (PW-5), one of two seizure list witnesses, in his evidence has proved his signature (Ext. 3/1) on the seizure-list and although he has stated in his examination-in-chief that house of appellant Muni Singh was raided by police and all the appellants live in one house but in cross-examination he has said that on the day of occurrence he was called by Officer Incharge of Police Station where on the order of Officer Incharge he and Girija Nand Pandey put their signatures on the seizure list. He has clearly stated that seized articles were not produced before them and he had put his signature on a blank paper. In para 3 of his cross-examination he has contradicted his earlier statement that all appellants jointly live in one house. He has said that appellant Muni Singh and his sons are separate from each other and oral partition between them had already taken place. He has also added that he did not enter the house of appellant Muni Singh at the time of raid.

(6.) Hawildar Dasarath Singh (PW-1), Ram Sumer Singh (PW-2) and Govind Prasad (PW-4) are the witnesses who in their evidence have stated that in their presence house of appellants was searched and during search countrymade arms, cartridges and explosives were recovered from the joint house of the appellants. PW-1 has said that he had gone to the house of appellants along with other constables and magistrates. He has further stated that one Muni Singh and another person were arrested at the spot. In para 9 of his evidence he has said that he had not taken part in the search and he cannot say from which room of the house the articles were recovered. As stated earlier, Gulzar Rai (PW-3) has said that at the time of search this witness was standing outside the house. This witness also in para 11 of his evidence has stated that when hulla was raised he also entered the house and in the courtyard he saw the seized articles. In para 14 his attention was drawn whether during the Investigation he made statement that appellants Muni Singh and Rajendra Singh were arrested and some explosives were recovered from the house of appellants to which he replied in affirmative but then no contradiction on this point could be taken by defence because prosecution has not examined the I. O. who took charge of investigation on 4-1-81 from PW-4. Ram Sumer Singh (PW-2) although in his evidence has said that house of appellant Muni Singh was searched and at that time appellants Muni Singh and Rajendra Singh were present in their house and has further said that both were arrested but has also said that because of lapse of time he was not in a position to identify the apellants when he was examined as a witness. In para 4 he has said that constables of BMP surrounded the house of appellants and Officer Incharge of Hasua Police Station and some constables entered the house of appellants. His evidence shows that he had not entered the house of appellants at the time of search. Evidence of Gulzar Rai (PW-3) that this witness at the time of search was standing out- side the house of appellants. Govind Prasad (PW-4) has proved written report (Ext. 1) which according to him he wrote at the dictation of informant Sureshwar Pandey. He has also proved formal FIR in his pen and under the signature of Sureshwar Pandey which is marked Ext. 2. He has proved endorsement (Ext. 1/1) of Sureshwar Pandey on the written report. He has said that the contents of the written report were read over to him. In para 3 he has said that the house which was searched is joint house of appellants. He has further said that seized fire arms and live cartridges were sent to sergeant Major for examination who by his report (Ext. 4) found them to be effective. In para 6 he has said that at the time of seizure a number of villagers had assembled but except the witnesses who put their signature on the seizure list he could not name of any other villagers. He has further said that only on perusal of case diary he can say who told him that the house searched by police belonged to appellants. In para 9 of his evidence he has said that arrested appellants confessed their guilt but they did not give any statement where the fire arms were kept in their house.

(7.) PW-6 is a witness who produced fire arms said to be seized from the house of appellants in Court but then seized fire arms were not placed before other prosecution witnesses at the time of their examination.

(8.) In this case neither the informant nor any of the two Magistrates in whose presence house of appellants was searched has been examined. The Court below in its judgment has observed that because prosecution has examined Govind Prasad (PW-4) who wrote the written report on which informant put his signature and thereafter a formal FIR was drawn under the signature of informant, therefore, the evidence of PW-4 is as good as that of the informant of this case. It has further observed that had the informant been examined his evidence would not have been better than the evidence of PW-4. I do not agree with this finding because it was informant who first received a secret information that appellants had kept fire arms and explosive substance in their house and he then after getting this information entered the same in station diary, proceeded towards the village of appellants. I further find that the Court below in its judgment has observed that written report of informant indicates that appellants keep fire arms and explosive substance to supply to the criminals and on this basis it has come to a finding that action of appellants is for illegal purpose possessing illegal arms and ammunition and explosive substance only to supply them to the criminals. On the basis of mere statement in written report of Informant this finding is unwarranted particularly when informant has not been examined and there is no other evidence on this issue.

(9.) Suresh Singh (PW-5) is the only independent witness examined on behalf of the prosecution. He in his evidence has said that all the appellants live separately. Prosecution has not adduced cogent and reliable evidence to prove that all the appellants live Jointly in a house. On this issue the Court below in its judgment has observed that it is difficult to say how an old man Muni Singh aged about 85 years can live separately from his sons aged about 35 and 42 years. In absence of any cogent evidence that

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all the appellants are living together in a house the aforesaid finding is based merely on imagination. (10.) In this case appellants have been convicted and sentenced under S. 5 of Explosive Substances Act. The entire evidence on record shows that only this much has been alleged against the appellants that powder kept in a small 'puriya' in a small tin was recovered which appeared as explosive substance but there is no report of any chemical examiner to show that powder which is said to have been recovered from the house of appellants was explosive. (11.) Considering the entire evidence on record I find that prosecution has not been able to prove its case beyond all reasonable doubts and the Judgment and order of Court below convicting and sentencing the appellants cannot be upheld. (12.) In the result, this appeal is allowed. The judgment and order of the Court below is hereby set aside. As the appellants are already on ball, they are discharged from the liabilities of their bail bonds. Appeal allowed.