Criminal Appeal (SJ) No. 272 of 1996 Against the judgment and order dated 16.10.1996 and 14.10.1996 passed by Shri Rameshwar Tiwary, learned 3rd Additional Sessions Judge, Madhubani in Sessions Trial No. 17 of 1996 1. Sajjad Alam @ Md. Sajjad Alam, Son of Md. Jamshed Alam. 2. Sahnawaz Alam alias Md. Sahnawaz Alam, Son of Md. Shamshaid Alam. Both residents of village – Bansbariya, P.S. – Bela, District – Sitamarhi. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 307 of 1996 Md. Parwez Alam @ Khusharu, Son of Md. Sakir Hussain alias Jhaggu, resident of village – Makiya, P.S. –Benipatti, District – Madhubani. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. -------------- For the Appellants : Md. Iftkhar Mahmood, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ------------ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. These two appeals are being heard together and disposed of by the common judgment and order as both the appeals arise out of the 2 judgment passed in same Sessions Trial No. 17 of 1996 by Sri Rameshwar Tiwary, 3rd Additional Sessions Judge, Madhubani by order dated 14.10.1996. 3. All the appellants in the two appeals have been convicted under Section 402 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and the appellants of Cr. Appeal No. 272 of 1996 have further been convicted under Section 25 (1-A) and 26 (B) of the Arms Act and have been sentenced to undergo rigorous imprisonment for seven years. 4. The prosecution case as alleged is that the police on patrolling duty when reached near Boudh, heard sound of whispering from the orchard and taking Bidi and cigarette and then police lit the torch chased and caught hold of the two persons where as the others managed to escape. The two persons caught hold of disclosed their names as Sajjad Alam @ Md. Sajjad Alam and Sahnawaz Alam @ Md. Sahnawaz Alam. From the possession of Sajjad Alam one loaded revolver with six cartridges were recovered with endorsement of made in England and the word W.B.L.Y and SCOUT/380” which they threw away and from the possession of Sahnawaz Alam also whereas revolver loaded with six cartridges with mention of word Japan. 5. On the basis of the written report of the informant FIR was lodged after investigation, charge-sheet was submitted subsequently 3 cognizance taken and the case was committed to the Court of Session. However, during the trial nine witnesses were examined and after considering the oral and documentary evidence, the documentary evidence adduced are Ext. 1 is the signature of witness on seizure list, Ext. 1/1 is also signature of seizure list, Ext. 2 fardbeyan, Ext. 3 formal FIR, Ext. 4 seizure list, Ext. 5 report of Sergeant Major, Ext. 6 sanction order, Ext. 7 explanation regarding the report of O.C., Benipatti and the material Ext. 1 to 1/1 are the two revolvers, material Ext. II to II/13 are fourteen cartridges. The documentary evidence adduced on behalf of the defence is Ext. A, is the signature of Fakirchand Mahto. On considering the oral and documentary evidence the conviction and sentence recorded as mentioned above. 6. However, out of the nine witnesses examined, P.Ws. 1 and 2 are the independent seizure list witnesses. However, they turned hostile and have not supported the prosecution case. 7. P.W. 6 is the Chaukidar, he has also turned hostile and has not supported the prosecution case. P.Ws. 4, 5 and 6 are members of the raiding party who have come to support the prosecution case. 8. P.W. 9 has stated in his evidence that P.Ws. 1, 2 and 3 have stated in their statement before him that they have taken part in chasing the accused persons. When the patrolling party reached near the miscreants, they heard that miscreants were talking among themselves 4 that they will commit dacoity in the house of one Hari Singh as per evidence of P.W. 9 in para 19 and 13. 9. P.Ws. 4, 5 and 6 have supported the prosecution case that during the patrolling they heard the sound of talk and then they lit the torch and on seeing the torch light the accused persons started fleeing away then they chased and caught two persons and from their possession two pistols were recovered; one disclosed his name Sajjad Alam and another Sahnawaz Alam. 10. P.W. 9 in his evidence has stated that he is the informant as well as the I.O. and supported the occurrence about the raid and accused persons caught hold after chasing and on search the firearm was recovered from the two appellants and the seizure list was prepared and took the signature of the accused persons on seized articles. However, he has formally proved the signature as well as the report of the Sergeant Major which has been marked as Ext. 6 and Ext. 5. However, in cross-examination he has stated that he did not prepare the seizure list of article separately. He has further stated that the seized articles were handed over to the Havildar of the Gastidal, Fakirchand Mahto and they took those articles in their pocket and they came to Makiya Police Centre and they remained at the Makiya Police Centre for whole night. He has stated that no receiving was taken from the accused persons. He has further stated that he has not mentioned in the diary 5 where these seized articles were kept and there is no mention in the case diary that when these articles were kept in the Malkhana of the police station. However, he has further stated that in para 30 and 31 that during the investigation he did not show those articles but himself tendered that he has seen those articles while he was sending for examination. He has further stated that he had sent the seized articles thrice for examination and first time on 19.09.1995 and while sending the articles for examination the seal of the police station was given. 11. Hence, taking into consideration the evidence it is apparent that there is no material to suggest that the accused persons have collected there for making plan for dacoity and the statement of the Chaukidar recorded by the I.O that P.Ws. 1, 2 and 3 disclose before him that dacoits were talking among themselves that they will commit dacoity in the house of Hari Singh is inadmissible in evidence as P.Ws. 1, 2 and 3 has taken hostile. Moreover, when the Chaukidar has turned hostile and has not supported the prosecution case and hence the conviction of the accused persons for offence under Section 402 of the Indian Penal Code is not substantiated by the legal, cogent and reliable evidence. 12. However, taking into consideration the fact that in the evidence though P.Ws. 3, 4 and 5 have supported the prosecution case about the recovery of the articles but under the facts and circumstances the informant is the I.O. as well as he is member of the raiding party and 6 this has always been deprecated by the this Court as well as by the Apex Court. However, the articles seized were not kept in a sealed and as per the evidence of the I.O. that it was given to the Havildar. There is no mention where the seized article was kept. The seized article was sent after three months for examination to Sergeant Major. However, the Sergeant Major examined and gave the report. The report has been formally proved but Sergeant Major not examined. However, these circumstances cast a serious doubt about the fact whether the article seized or firearm seized was sent for examination and the probability that the seized articles were changed cannot be ruled out. 13. Hence, having regard to the fact that since the I.O. was the Officer-In-Charge as well as the member of the raiding party and the seized firearm was not kept in sealed cover nor there is mention and it was handed over to the member of the raiding party without having been received, there is no mention where it was kept for several days in the police station. Though it is stated that seized artilce was sent as per the instruction of the C.J.M but which article sent has not been established. The Sergeant Major has not been examined and hence I find and hold that the prosecution has not been able to prove beyond doubt that the article seized was effective. Moreover, the conviction recorded under Section 25 (1-A) but it is also not established that arm was prohibited arm and hence 25(1-A) is not applicable rather 25(1-a) 7 but that also not establish that the seized article was effective to establish that it was firearm. Hence, under the facts and circumstances, the appellants are entitled for the benefit of doubt and hence I give the appellants benefit of doubt and hold that the prosecution has not been able to prove the charges under Section 402 of the Indian Penal Code and 25 of the Arms Act beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 15th July, 2011 N.A.F.R./Kundan.