IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.68 OF 2007 Against the judgment of conviction and order of sentence dated 22.12.2006 passed by Additional Sessions Judge, Fast Track Court- I, Purnea in Sessions Trial No.286 of 1996, Trial No.123 of 1999. 1. Rajesh Thakur @ Rajesh Kumar Thakur,Son of Sri Kamla Kant Thakur, 2. Bablu Thakur alias Bablu Kumar Thakur, son of Late Gopalnath Thakur Both resident of village-Dhamdaha, P.S.Dhamdaha, District-Purnea.... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Shri Ashok Kumar Mishra, Advocate For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appellants have come up before this Court through the present appeal to challenge the appropriateness of the findings on their conviction recorded by the learned Presiding Officer of Fast Track Court-I, Purnea in Sessions Trial No.286 of 1996. By judgment delivered in that case on 22.12.2006 the appellants were held guilty of committing offences under Sections 25(1-B)and 26(2)of the Arms Act and each of them was directed to suffer rigorous imprisonment for three years and five years respectively on the two counts of their conviction. It was directed that the sentences were to run concurrently. 2 2. On 21.01.1993 P.W.1, as per his written statement had some information that a truck had been hijacked by some criminals. Accordingly. P.W.1 along with some of his police force was waiting for arrival of the truck which bore registration no.BR-1A/5147 and at about 12.20 A.M. he found the truck coming from Banmankhi side. The truck was intercepted at Dhamdaha chowk and the two appellants were found sitting inside. Their persons were searched in presence of P.Ws.3 and 4. An illegal country made pistol with one cartridge each was found in possession of each of the two appellants. 3. The seizure memo, Ext-2, was prepared and the two appellants were taken into custody. On the self statement(Ext-1)of P.W.1 the FIR of the case was drawn up and P.W.1 himself took up the investigation which ultimately ended in submission of chargesheet against the two appellants after their trial which ended finally in the impugned judgment. 4. The defence of the appellants was of false implication by planting fake arms on them. 5. Five witnesses were examined in support of the charges, out of whom P.W.2 Fazle Rabbani was a witness of formal character who tendered Ext-4 the order passed by the District Magistrate, Purnea sanctioning the prosecution of the two appellants for offences they had been found guilty. P.Ws.3 and 4, as just narrated, were witnesses to search 3 and seizure and they gave similar one line evidence that the appellants had neither been searched in their presence nor anything was recovered from any of the two appellants in their presence and further that they had not signed the seizure memo rather the police obtained their signatures on plain papers. P.W.5 was the Sergeant Major who tested the recovered arms and ammunitions for their effectiveness and submitted the report Ext-7 giving the opinion that the seized arms and ammunitions were effective. 6. P.W.1, the informant of the case who happened also to be the investigating officer supported his own case as I have just narrated. 7. The criticism fundamentally was that there was no evidence that the two appellants were searched firstly, and secondly, no arms or ammunitions were recovered individually from either of them. It was further submitted that the major flaw in the prosecution case was that the informant, A.S.I. Ganesh Das was himself taking over the investigation of the case which has been held not in the interest of justice as he might have created evidence in support of his case so as to obtaining an order of conviction from the court below. It was, lastly, contended that the lower court itself has recorded that the recovered arms and ammunitions were not produced in the court below making it further doubtful that there was any search and recovery as claimed by the police. 4 8. It is true that seizure witness, like, P.Ws.3 and 4 have not supported the story that the two appellants had been searched and anything was recovered from their possession. They have very categorically stated that the police obtained their signatures on plain blank papers and they individually did not know the two appellants. In absence of the evidence which was supposed to come from the seizure list witnesses it could be very difficult for me to sustain the finding of the court below that the arms and ammunitions which were tested by P.W.5, the Sergeant Major and reported as effective, had really been recovered from the appellants. That finding further gets support from the record of facts made by the learned trial Judge that the arms and ammunitions were not produced before him. If indeed the arms and ammunitions had been recovered on account of making the search of the two appellants, why was it that the prosecution was shying away from producing the recovered arms and ammunitions before the court below. Seizure list might be the evidence regarding holding the search and seizure, but when it is not being supported by witnesses who had signed the documents then some sort of doubt is created in the very story. 9. A series of decisions of this Court as also of the Supreme Court has pointed out that in case of the present nature, the investigating officer should be a person other than the police officer who was the informant 5 of the case, so that the truth of search and seizure with support of documentary evidence could have been unravelled. The reason behind such propositions has been pointed out to be the enthusiasm of the police, i.e., the informant of the case in creating and collecting evidence in a manner so as to justifying his action and thereby making a fit case for conviction. It has been held that such manner of investigating a case by the informant may entail adversely upon the principles of fair trial and justice. As such, the police officer-informant of a case should refrain from taking up the investigation of his own case to conclude it. Unfortunately, the informant of the present case was the investigating officer of the case. There is no evidence on record that it was an emergency situation that there was no officer available in Dhamdaha police station who could have been entrusted with the charge of conducting the investigation of the Dhamdaha P.S.Case No.10 of 1993. In fact the very FIR Ext-3 indicates that S.I. Mohan Jee Mishra was the officer-in-charge who had drawn up the FIR and still he had chosen to hand over the investigation to P.W.1 A.S.I. Ganesh Das. This appears more a disturbing situation inasmuch as if the offence could be tried by the court of Sessions, then it is necessarily to be a special report case under the Bihar Police Manual, 1978 and in that particular situation it was specially required that an Assistant Sub Inspector rank officer ought not to have 6 investigated it. This is one aspect of the matter which appears prejudicially influencing the result of the case and on that account I hold a view that the trial could not be said to be fair, as a result of which, the judgment of conviction passed upon the two appellants may also not be sustainable. 10. In the result, the appeal succeeds and the same is allowed. The judgment of conviction and order of sentence passed upon the two appellants are hereby set aside. The two appellants are in jail. They shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 8th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)