Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.202 OF 2001 =========================================================== AGAINST THE JUDGMENT OF CONVICTION AND THE ORDER OF SENTENCE DATED 12TH JUNE, 2001 PASSED BY SHRI B. P. PODDAR, 1ST ADDITIONAL SESSIONS JUDGE, KHAGARIA IN SESSIONS TRIAL NO. 104 OF 1999 ARISING OUT OF KHAGARIA POLICE STATION CASE NO. 94 OF 1999 =========================================================== AMBO SHARMA, SON OF SHRI PREM SHARMA, RESIDENT OF VILLAGE MATHAR, POLICE STATION KHAGARIA, DISTRICT KHAGARIA .... .... APPELLANT VERSUS THE STATE OF BIHAR .... .... RESPONDENT =========================================================== APPEARANCE : FOR THE APPELLANT : MR. ARBIND KUMAR, ADVOCATE MR. PREM CHAND YADAV, ADVOCATE FOR THE S T A T E : MR. SUJIT KUMAR SINGH, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT DATE: 11-12-2012 Sheema Ali Khan, J. The appellant has been found guilty under Sections 25 (1) (a), 25(1-b)A, 26 (i) and 26 (ii) of the Arms Act and has been sentenced to undergo rigorous imprisonment for five years, two years, two years and five years respectively. 2. The prosecution case has been instituted on the statement of PW 7 Md. Sujauddin. According to the First Information Report, he along with the Raiding Party was visiting different villages in order to arrest the accused of Mufassil Shivir Police Station Case No. 455 of 1998 under [STATUTE] . In course of their duty, they learnt that the appellant Ambo Sharma is running a mini-gun factory in village Mathar. Before reaching Mathar, they had also conducted raids Patna High Court CR. APP (SJ) No.202 of 2001 dt.10-12-2012 2 / 5 2 at Tikarampur and some other villages. On reaching Mathar, they stopped their jeep at some distance and entered into the house of Ambo Sharma, which was situated in the middle of the village and found several items which were utilized for the purpose of manufacturing illegal arms. At the time of raid, two persons ran away from the hut of Ambo Sharma, who were caught hold of on chase by the Raiding Party and a pistol was recovered from each of them. The seizure was prepared and thereafter the First Information Report was instituted. 3. At the outset, it may be stated that the seizure list witnesses, although they have admitted their signatures on the seizure list, claimed that the seizure was not made in their presence and as such, PW 2 Uday Kumar Mandal and PW 4 Arun Yadav have been declared as hostile witnesses. PW 1 Yogendra Mandal, PW 3 Mahendra Das, PW 5 Premchand Yadav, PW 6 Praphullit Kujur, PW 7 Md. Sujauddin (informant) and PW 8 Prembir Jha (Investigating Officer) are witnesses with respect to the actual raid. Out of the witnesses aforesaid, it is stated that PWs 3, 6 and 8 would be actual persons who had entered into the hut of the appellant and seized illegal arms. The rest of the witnesses were present at the place of occurrence and had surrounded the house of Ambo Sharma while their Officers were conducting the search. This aspect of the matter is supported by PWs 1, 5 and 8, the Investigating Officer who was present at the place of occurrence. There is no material in their cross- Patna High Court CR. APP (SJ) No.202 of 2001 dt.10-12-2012 3 / 5 3 examinations, which would lead this Court to disbelieve the evidence of these witnesses. It is admitted by all the witnesses that the house/hut of the appellant was a temporary construction i.e. it was a thatched room made of straw, which is the spot from where the recovery was made. 4. PW 3 Mahendra Das claims that he was present at the time when the raid was made, he remained at the door of the house while the informant was searching the house. Thereafter, he along with the informant prepared the seizure list of the seized articles from the place of occurrence. 5. PW 6 Praphullit Kujur has also supported the prosecution version and has stated that he had seized the articles. The defence has cross-examined this witness in some details and has submitted that the cross-examination reveal that there are certain contradictions in the manner in which the raid was conducted. It has been pointed out by the Counsel for the appellant that the witnesses do not remember the house that they had raided, while they were conducting the raid at Tikarampur, they do not remember the time it took them at village Tikarampur, they have not disclosed the source of information from where they learnt that Ambo Sharma had stored illegal arms and other tools utilized for manufacturing illegal arms. It has been stated that they learnt by a secret informer that there is a mini-gun factory in the house of Ambo Sharma and that he indulges in selling these illegal arms. Great Patna High Court CR. APP (SJ) No.202 of 2001 dt.10-12-2012 4 / 5 4 pains have been taken on behalf of the defence to show that the house which was searched did not belong to Ambo Sharma, which in the opinion of this Court, has not been proved by the witnesses. Counsel for the appellant relies on the statement under Section 313 of the Code of Criminal Procedure in which the appellant has specifically stated that the raid was not made in his house. A vague suggestion has been given that the appellant has been made accused at the instance of the Sarpanch, but has not disclosed the reasons, as to why Sarpanch would implicate the appellant in a case, has not been pointed out during the evidence. The statements of DWs 1 and 2 indicate that the house of Ambo Sharma was not searched would have no importance as in the cross-examination, it is stated by DW 1 that the police had come to the house of Ambo Sharma. 6. In view of the aforesaid facts, it cannot be said that the contradictions of the defence taken on behalf of the appellant is correct. Lastly, Counsel for the appellant submits that it is admitted by all the witnesses i.e. PW 1 at paragraph 7, PW 8 at paragraph

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.