Criminal Appeal (SJ) No.556 of 2007 Against the judgment of conviction dated 15.05.2007 and order of sentence dated 16.05.2007 passed by Additional District & Sessions Judge, Fast Track Court-V, Katihar in Sessions Trial No.320 of 2005, Trial No.36 of 2005. MANOJ PODDAR @ RAJESH PODDAR, Son of Tirthanand Poddar, resident of village-Tikapatti, P.S.Tikapatti, District- Purnea .... APPELLANT VERSUS STATE OF BIHAR .... RESPONDENT With Criminal Appeal (SJ) No. 590 of 2007 1. TUNTUN SAH, Son of Dularchand Sah, resident of village-Durgapur, P.S. Vawanipur, Distrcti-Purnea. 2. ASHISH KUMAR @ SUBODH MANDAL, Son of Dhaneswar Mandal, resident of village-Tikapatti, P.S.Tikapatti, District-Purnea. 3. SHAILENDRA KUMAR @ SHAILENDRA KUMAR MANDAL, Son of Tulshi Mandal, resident of village-Tikapatti, P.S.Tikapatti, District-Purnea. 4. TAINU MANDAL, Son of Late Mahendra Mandal, village- Tikapatti Chandpur Tola, P.S.-Tikapatti, District- Katihar. 5. INDU DEVI @ REKHA DEVI @ MIRA DEVI, D/O Upendra Choudhary, resident of village-Tikapatti, P.S.Tikapatti, District-Purnea. -------APPELLANTS Versus STATE OF BIHAR .... RESPONDENT For the Appellants:-S/Sri Bimal Kumar Sanjeev Kumar Singh, Birendra Kumar, J.P.Bhagat & D.N.Tiwary, Advocates. (In Both the Appeals) For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA 2 Dharnidhar Jha,J The two appeals arise out of the judgment dated 15.05.2007 passed by Fast Track Court-V, Katihar in Sessions Trial No.320 of 2005, Trial No.36 of 2005. By the judgment, while acquitting one of the seven accused persons, namely, Chandra Shekhar Sharma @ Chandeshwar Sharma, put on trial, the learned trial Judge was holding the six appellants in the two appeals guilty of having committed offences under Sections 395 and 412 IPC and Sections 25(1-B)26(i)and 35 of Arms Act. The learned trial Judge directed all the appellants to suffer rigrous imprisonments for ten years each on the two counts, like, Sections 395 and 412 IPC. So far as the offences under the Arms Act were concerned Manoj Poddar @ Rajesh Poddar, Tuntun Sah and Tainu Mandal, after being held guilty, were directed to serve simple imprisonment for three years each under each of Sections 25(1-B), 26(1)/35 of the Arms Act whereas appellants Ashish Kumar @ Subodh Mandal and Indu Devi @ Rekha Devi @ Mira Devi were directed to suffer simple imprisonment for the same period of three years as in the case of the three other appellants for their conviction under Section 25(1-B)(a)/35 and 26(1)/35 of the Arms Act. 2. The informant Uday Singh(not examined)was the driver of a passenger bus bearing Registration No.BR-9B-3745 and he started with passengers from 3 Chapra to Siliguri via Begusarai. He reached Begusarai at about 1.30 P.M. on 04.04.2003 and there seven passengers boarded the bus which included the seven accused persons as may appear from the narration which was unfolded by the driver Uday Singh. It was stated that they had purchased tickets from the counter of the transport office which was running the bus and after it had left Begusarai and had reached somewhere near Kursela appellant Indu Devi @ Rekha Devi @ Mira Devi asked to stop the vehicle on the ground that she wanted to attend to the call of nature. Two of the appellants are also said to have accompanied her by getting down the bus. 3. It was further stated that after they had re-boarded the bus they started making allegations against the cleaner of the bus that he had misbehaved with the lady appellant Indu Devi @ Rekha Devi @ Mira Devi. The seven accused persons who were put on trial including the six appellants created a pandemonious situation inside the bus and got the bus stopped at a particular place and they themselves are said to have got down the bus. It is stated that one of the accused persons mounted the bus through the window near the driver’s seat and put a revolver at him to command him to drive the bus slowly and put the body 4 lights inside the bus on. The informant stated that he put the lights on inside the bus whereafter he could find that two criminals were standing on the two gates of the bus whereas other criminals were moving inside the bus and were assaulting the passengers and looting them of their belongings. The informant stated that he was purposely moving the bus slowly so as to being confronted with a police patrolling party. Sensing that, the criminals asked him to speed up the bus but he did not do it and continued driving the bus in a slow speed in expectation that the police on patrolling meets generally at Kishoreganj Chawk and may be that the driver sights them and seeks their help. Incidentally, when it had reached the Kishoreganj Chawk he found the patrolling jeep parked there and as such stopped the bus and started shouting ‘dacoits, dacoits’ which attracted the police party which rushed to the bus. The police surrounded the bus. One of the constables came on the window side of the bus where a criminal had put his arms upon the driver and by targeting him with his rifle asked him to surrender. Other police personnel including that constable on the window side, mounted the bus, arrested the appellants and brought them down the bus and on search of their persons, it is alleged, 5 recoveries were made of looted properties, like couple of cellular phones and Rs.900 in cash and from the personal search of the appellants, country made revolvers/pistols and six cartridges. 4. The above recoveries were recorded by preparing the seizure list (Ext-2) in presence of two independent witnesses, namely, Vidya Sagar Singh and Mahesh Kumar, both of whom have not been examined. 5. On account of the passengers and the cleaner of the bus being assaulted by the dacoits they had perceptible injuries on their persons and they appear examined by P.W.9 Dr. Nand Kishore Singh who was the Medical Officer, Primary Health Centre, Korha and he after examining them issued the medical certificates Exts-1 to 1/2. The recovered arms and ammunition were sent to the Sergeant Major for examination and he submitted his report Ext-6. After examination of the witnesses and obtaining the sanction of the District Magistrate, the police submitted chargesheet which resulted in the trial of the appellants and ultimately in the judgment impugned herein. 6. The defence of the appellants appears of innocence and of false implication on the ground that the cleaner of the bus had misbehaved with appellant Indu Devi @ Rekha Devi @ Mira Devi and that was 6 vehemently opposed by the appellants and the driver and others who were running the bus in order to teach a lesson to the appellants and in connivance with the police, fabricated a false case so as to implicating them. 7. It was contended by S/Sri Bimal Kumar and J.P.Bhagat on behalf of the appellants that the real victims of the offence, i.e., the passengers who are alleged to be looted by the appellants were not produced for their evidence. No one came at any stage of the proceedings to claim that any property recovered, may be the part of the money or any of the two cellular phones, was belonging to him. The informant was not examined and the solitary evidence of P.W.11 Babloo Singh was not sufficient to hold that it could be a case of dacoity. Likewise, the evidence of test identification parade of recovered properties as appears from the record was also not produced either by examining the Circle Officer who was supervising the test identification parade or from the support of the P.Ws.3 and 4. Contention further was that the seizure list witnesses were not examined and if the occurrence was taking place at a village or a Chawk where the people must have attracted, then those independent witnesses or any of them should have been produced for evidence. 7 Contention was that the sanction order passed by the District Magistrate for prosecuting the appellants under the Arms Act was defective and not valid and further the recovered arms and ammunitions were not ever sealed so as to eliminating, the scope of substituting the arms and ammunitions so as to supporting the allegations. In support of this contention, the learned counsel appearing for the appellants has placed reliance upon Sahib Singh Vrs. State of Punjab (1996)11 SCC 685. 8. Answering the above contention, Sri Ajay Mishra, the learned Additional Public Prosecutor was submitting that it was an established fact that the appellants plundered the passengers of the bus at gun point and recoveries of guns were duly made by the police officers and those were brought before the court as may appear from the evidence of P.W.5. It was contended that the passengers were looted of their belongings and some part of it, like, the cellular phones were produced by the police in the court below. Contention further was that as regards the other part of the looted property, the prosecution evidence indicated that one of the accused, namely, Chandra Shekhar Sharma @ Ghanshyam Sharma had run away from the scene of occurrence and there could be no possibility of finding it on that 8 account. 9. Before, I take up the arguments for scrutiny it may be relevant to point out that the prosecution examining eleven witnesses, out of whom, P.Ws.1, 2, 3 and 4 were declared hostile. P.W.1 was a witness to the seizure memo and he did not state that anything was recovered in his presence from anyone though he stated that P.W.10 S.I. Ram Shanker Singh was the investigating officer of the case and had asked him to accompany him up to the police station where he put his signature on some papers. It may be said that on account of having admitted his signature on any document the witness could be said to be part of the proceeding but when his evidence is that nothing was recovered in his presence to which he could be a witness, then it could be very difficult to hold that he could be a witness to any document specially when P.Ws.1 and 4 do not appear to be witnesses to the seizure memo. They were rather two persons, like, Vidya Sagar Singh and Mahesh Kumar and they were not produced. So far as other witnesses, like, P.Ws.2, 3 and 4 are concerned they have supported none of the parts of the investigation or the occurrence except that P.W.3 stated that no identification parade had been organized and he had not participated in any. This statement of P.W.3 9 could have been tested had the prosecution produced the identification chart which could have been prepared at that occasion by any other officer on that account. The best evidence could have been produced by the prosecution after it had examined the officer who could have supervised the exercise but that evidence is completely lacking. P.W.4 Kumod Jha does not appear stating anything nor does appear any record in the deposition as to what was the relevance of that particular witnesses and how his non support was detrimental to the prosecution charges. The other witnesses, like, P.Ws.5, 6, 7 and 8 were all police personnel who were on patrolling duty and who supported the allegation that after hearing the shouts of the driver and others of ‘dacoit, dacoit’ they were attracted and went near the bus, surrounded it and after mounting inside it arrested the appellants. The appellants were brought down from the bus and on search some properties were recovered which have been marked material Exts-II and II/1, besides, the effective country made weapons have been marked Exts-I to I/2 and further that these appellants were arrested and the statement of the driver was recorded. P.W.9 Dr. Nand Kishore Singh had examined three injured as I have noted earlier and had issued the report, but those three persons who 10 were examined by him do not appear coming to the witness box except P.W.11 Babloo Singh who was the conductor of the bus. None of the witnesses who is said to have been looted or relieved of his properties was also coming. Thus, none of the police officers except P.W.11 could be said to be an eye witness to the occurrence of plundering the bus passengers and thereby relieving them of their properties. 10. The most curious aspect of the matter was that while hearing the present appeal, I roved through the pages of the lower court record right from the receipt of the FIR till the judgment was delivered, but I could not find any order passed on any petition filed by any person who could have come before the court with a prayer that any property which could have been seized by the police after recovery of the same, should be released as the property belonging to him. This particular aspect of the case raised a doubt in my mind as to whether the occurrence could be true or could it be a complete fabrication and thorough manipulations by the informant and others in connivance with the police personnel. The informant was not coming forward to support the charges. I hold a view that the evidence of the informant may not be necessary, his non- 11 examination may not be entailing any defect upon the prosecution case if other witnesses, who come to support the charges are found reliable and trustworthy. The reason is that the informant is also a witness in any criminal case and his evidence has to be judged on the balance of probability like that of any other witness and as in case of other witnesses, if he does not come to support the case that is not going to have much bearing upon the merits of the charges. But, when none of the victims of the offence was produced by the prosecution and the recovered properties appear quite lesser than what is alleged to be recovered by the police personnel then it creates a doubt in my mind as to why the informant could be shying away from deposing in court. The evidence of P.W.10 was that cash of Rs.25,000/- was looted appears without any basis inasmuch as only Rs.900/- was recovered from the possession of the seven accused persons who were also travelling in the same bus on validly purchased tickets. The explanation given by P.W.10 was that acquitted accused Chandra Shekhar Sharma @ Ghanshyam Sharma had taken away the remaining part of the booty as regards the cash. I am at least not convinced by the explanation furnished by P.W.10. Even the recovery of Rs.900/- was not matching the loot of 12 Rs.1300/- from the possession of P.W.11. It was still short of Rs.400/-. 11. Above all, the witnesses who were associated with the recoveries or the witnesses who had participated in the test identification parade to identify the theft properties were not coming either to support the factum of recovery or of identification of the recovered properties. The respectable persons of the locality have to be associated. It may not be a case always. May be that persons are available but they are not ready to associate themselves with the search and recovery procedure and may be that they had once having associated themselves do not come to support the story. But when I come to the document, Ext-2, what appears to me is that in spite of the evidence of P.W.10 to the effect that a copy of the seizure memo was handed over to all the accused persons, the same does not appear handed over to any of them. It was rather handed over to one Mahesh Kumar who was signing as a witness the document, Ext-2. Law requires that a copy of the seizure memo in respect of recovery of any properties should either be given to the person from whom the recoveries have been made or should be provided to any of his family members. In the present case, the family member of any of the 13 appellants may not be present as may appear from the evidence of the case, but out of the seven accused persons if the police had handed over even a single copy to any of them, I could have accepted the compliance of the provision. 12. So far as the conviction of the appellants under various Sections of the Arms Act is concerned, the evidence is consistent that recoveries were made from the accused persons. But, from whose possession which weapon was recovered, there is no evidence to point that out. It was rightly contended that in spite of the story of recovery and the evidence adduced in that behalf, the prosecution was failing to point out to the court that it had properly secured the weapons by properly sealing it under proper identifying features so as to eliminating any chance of the same being a transplant. The weapons were produced by P.W.5 in court and he was simply tendering the weapons as may appear from paragraph-1 of his evidence. There is nothing on record to point out that those were properly wrapped and tagged with proper and appropriate seals put thereon. 13. In addition to the above, what I find is that the very cognizance and prosecution of the appellants for offences under Section 25 and 26/35 of 14 the Arms Act may not be recorded unless there is a valid sanction order from the District Magistrate as is required by Section 39 of the Arms Act. While granting sanction to prosecute an accused for violating any of the conditions of Sections 3, which has been made punishable under various Sections of the Arms Act except 27, it is too well known to be pointed out that the facts of the case have to be presented before the District Magistrate so that he could apply his mind to them and, then, could form an opinion that the facts indicated commission of offences punishable under Sections 25, 26 or 35 of the Arms Act on account of the violation of conditions of Section 3 of the Arms Act. If it is found that the facts were not properly placed before the District Magistrate or that there could be circumstances pointing out that he did not have the occasion or in fact he did not indeed apply his mind to the facts of the case so as to forming his independent opinion regarding the violation of the conditions of Section 3 of the Arms Act, then in that case the very grant of sanction to prosecute a person gets vitiated and the sanction no longer remains valid sanction. There could be a series of decisions which could be pointing out that facts have to be properly placed before the District Magistrate and 15 the sanction order must indicate that he had considered those facts by applying his mind to them and then had reached a particular conclusion on the violation/non-violation of the conditions of Section 3 of the Arms Act requiring or not requiring the grant of sanction by him. While I was perusing Ext-7 which is order sanctioning the prosecution of the appellants under various Sections of the Arms Act, I found that it was a photo copy of a printed form with spaces left for filling-in different details, like, the memo number with date by which the sanction order was being communicated, the names of the accused persons and the grant of sanction by which their prosecution was ordered. On perusal of Ext-7 what appears is that there is no fact stated as regards the prosecution story. There is no mention as to from whose possession which weapon was recovered, what was the nature of that particular weapon and further that the weapon was found effective. Not only that who was the informant of the case, where the occurrence had taken place and how the weapons could be falling under the definition of the ‘Arms’ as contained under the Arms Act were also not stated. The District Magistrate was simply noting that the Superintendent of Police had pointed out to him by a particular memo number of a particular date that the appellants had 16 committed the offences under Sections 25, 26 and 35 of the Arms Act which required the sanction from him for their prosecution and, accordingly, he was agreeing and granting that particular sanction. I have already noted that it was in a printed form and the printed form had vacant spaces left for filling up some of the informations. But, there was no space left even for putting down the bare facts of the case or even a shamble of it so as to indicating as to how the appellants were found in possession of it so that they could be said to violate conditions of Section 3 of the Arms Act which violations are punishable under Sections 25, 26 or 35 of the Arms Act. The sanction order as appears in the form of Ext-7 was in fact not an order which could be said to be passed after due application of mind by the District Magistrate and as such it stood vitiated which could never be utilized by any court of law to justify the proof of charges under the Arms Act under which the appellants were convicted and sentenced. Thus, what I find is that the conviction of the appellants under Sections 25, 26 or Section 35 of the Arms Act was completely vitiated on account of the lack of proper sanction. 14. I have already considered the evidence as regards the conviction of the appellants under 17 Sections 395 and 412 IPC. The evidence is deficient. In fact the evidence which could have proved the charges and which could have come on record of the trial court by examining the victims of the offences or even the informant of the case was not produced and that created a big void in the prosecution case as regards the proof of the charges. 15. In the result, the two appeals succeed. The judgment of conviction and the orders passed upon the appellants are hereby set aside. The appellants are acquitted of the charges for which they were convicted. All the appellants, except Indu Devi @ Rekha Devi @ Mira Devi are in custody. They shall be released forthwith, if not wanted in any other case. As regards appellant Indu Devi @ Rekha Devi @ Mira Devi she shall stand discharged from the liabilities of her bail bonds. Patna High Court, Dated, the 12th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)