If the court has not committed any illegality or irregularity, the revision won’t succeed. : Jharkhand High Court

 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 312 Doma Munda son of Late Bair Munda Resident of Village Rabo P.O. & P.S. Tamar District Khunti Versus The State of Jharkhand ... Petitioner … … … … Opposite Party CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Amit Kumar Choubey Adv. Mr. Navin Kumar Singh A.P.P. For the Petitioner For State Opp. Party C.A.V. on 23.03.2021 Through Video Conferencing Pronounced on 09.04.2021 Heard Mr. Amit Kumar Choubey the learned counsel appearing on behalf of the petitioner. Heard Mr. Navin Kumar Singh learned A.P.P. appearing on behalf of the Opposite Party State. The present criminal revision application is directed against the judgment dated 21.11.2009 passed by the learned Additional Judicial Commissioner F.T.C. Khunti in Cr. Appeal No. 07 of 2009 whereby and whereunder the learned appellate court confirmed the conviction and sentence of the petitioner for the offence under Section 25(1 b)a read with Section 35 of the Arms Act but set aside the conviction and sentence of the petitioner for the offence under Section 26 of the Arms Act passed by the learned trial court and dismissed the criminal appeal preferred by the petitioner and others. The petitioner alongwith Dhono Munda and Budhlal Munda had jointly preferred the criminal appeal against the judgment of conviction and the order of sentence dated 18.12.2008 passed by learned Sub Divisional Judicial Magistrate Khunti in G.R. No. 2806 T.R. No. 2608 arising out of Arki P.S. Case No. 23 2006) whereby and they were for offence under Section 25(1 b)a 26 35 of the Arms Act and were sentenced to undergo rigorous imprisonment for 2½ years and fine of Rs.2 000 for both of the offences under Sections 25(1 b)a and 26 read with Section 35 of the Arms Act and in default of payment of fine they were directed to undergo simple imprisonment for further 6 months under both the offences. Both the sentences were directed to run concurrently and the period undergone by them during trial were directed to be set off. However the learned trial court acquitted all the three accused persons from the charges under Section 17 of C.L.A. Act. Submissions on behalf of the Petitioner Learned counsel for the petitioner while challenging the impugned judgments submitted that the impugned judgments are perverse and are fit to be set aside. The learned counsel further submitted that so far as the seizure list witnesses are concerned they have not supported the prosecution case inasmuch as P.W. 4 had turned hostile and P.W. 1though admitted his signature on the seizure list but stated that he had put his signature in the police station. So far as P.W. 2 is concerned he also denied the occurrence but he proved his signatures on the seizure lists which were marked as Exhibits 1 2 and 1 3 respectively. Without prejudice to the aforesaid submissions the learned counsel further submitted that the present offence is the first offence of the petitioner and accordingly the petitioner may be given the benefit of Section 360 of Cr.P.C. The learned counsel also submitted that the occurrence is of the year 2006 and much time has elapsed since then and the petitioner has faced the rigour of the criminal case for about 15 years and as such the sentence of the petitioner may be confined to the period already undergone by him in custody. Submissions on behalf of the Opposite Party State Mr. Navin Kumar Singh the learned A.P.P. appearing for the Opposite Party State on the other hand opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and there is no scope for re appreciation of evidences under revisional jurisdiction. He also submitted that the official witnesses have fully supported the prosecution case and they were also fully cross examined by the defence. He submitted that the learned appellate court has considered the fact that due to fear the local people do not come forward to give evidence against extremists. He also submitted that considering the nature and seriousness of the offences the petitioner is not entitled for any benefit under Section 360 of Findings of this Court After hearing the learned counsels for the parties and going through the impugned judgments as well as the lower court records of the case this Court finds that the prosecution case is based on the self statement of Sub Inspector Digvijay Singh Officerincharge Arki Police Station recorded on 21.05.2006. It was alleged that on 21.05.2006 the Informant received a confidential telephonic information that some naxalites have stayed with arms in the house of one Dhono Munda and after registering the sanha the matter was informed to higher police officer and thereafter police officials reached Arki Police Station and proceeded at about 3 A.M. to verify the information. When they reached the place of occurrence at about 4 O’clock in the morning they took two independent witnesses namely Sukhram Munda and Lakhindra Nag and in their presence they conducted the raid after surrounding the house of Dhono Munda. When the door was opened and one person armed with double barrel gun was arrested who disclosed his name as Dhono Munda. Two other persons were found sleeping who disclosed their names as Budhan Lal Munda and Doma Munda a 26 35 of the Arms Act and Section 17 of Criminal Law Amendment Act against three persons namely Dhono Munda Budhan Lal Munda and Doma Munda witnesses to prove its case. P.W. 1 is Sukh Ram Munda who is a seizure list witness P.W. 2 is Lakhindra Nag who is also a seizure list witness P.W. 3 is Chintu Das S.I. Police P.W. 4 is Sanjay Munda P.W. 5 is Mona Munda P.W. 6 is S.I. Anjani Kumar P.W. 7 is S.I. Gupteshwar Singh and P.W. 8 is S.I. Digvijay Singh. P.W. 1 is the search cum seizure witness. This witness has not fully supported the prosecution case and has stated that he did not know anything about the alleged occurrence but at the same time he has not denied his signature and has stated that he had put his signature on blank paper as asked by the police personnel. P.W. 2 is another search cum seizure witness. This witness has also not fully supported the prosecution case as he has stated that nothing was seized in his presence and further stated that his signature was obtained by police at the police station. This Court finds that the fact remains that P.W. 1 and P.W. 2 have not denied their signatures on the seizure lists. P.W. 1 exhibited his signatures on two search cum seizure memos as Exhibits 1 and 1 1 respectively and similarly P.W. 2 has also exhibited his signatures on the two search cum seizure memos as Exhibits 1 2 and 1 3. P.W. 4 and P.W. 5 are independent witnesses namely Sanjay Munda and Mona Munda respectively who have stated that they have no knowledge about the occurrence and have been declared hostile by the prosecution. P.W. 6 and P.W. 7 are S.I. Anjani Kumar and S.I. Gupteshwar Singh who were members of the raiding team. P.W. 8 namely S.I. Digvijay Singh is the informant of the case and was also a member of the raiding team and P.W. 3 is the Investigating Officer of the case. P.W. 6 has stated that on 21.05.2006 he was posted as Officer in charge of Tamar Police Station and during the course of his duty at around 1 O’clock at night he along with Bundu Sub Division Police Officer Sanjay Ranjan Singh and Officer in charge of Bundu Police Station Gupteshwar Singh and various CRPF officers had left from Tamar Police Station and had reached Arki Police Station at about 3 O’clock in the morning and had met the Officer in charge of Arki Police Station namely Digvijay Singh. He alongwith Digvijay Singh and other police officials reached village Korba at about 4 O’clock in the morning and in presence of two independent witnesses they had raided the house after surrounding it and upon knocking the door one person came out of the house having fire arm who was taken into custody and upon asking he disclosed his name as Dhono Munda. He has supported the prosecution case by further stating that upon entering his house two persons were found sleeping on the bed and under the mattress of the bed one loaded country made pistol of .315 bore was recovered and the two persons disclosed their names as Budhan Lal Munda and Doma Munda Petitioner). He identified the fire arm recovered from the possession of Dhono Munda which was already marked as Exhibit 1 and he also identified the fire arms recovered from the possession of Budhan Lal Munda and Doma Munda petitioner) and also identified the live cartridge which was found in the fire arm recovered from their possession which was already marked as Material Exhibits II and III. He has also stated that upon being asked about the documents regarding the fire arms they did not produce any documents and during the course of interrogation Dhono Munda disclosed that he was the President of Kishan Committee and Budhan Lal Munda disclosed that he was the Secretary of Kishan Committee and that they are involved in collection of levy for terrorists. P.W. 6 further stated that the petitioner namely Doma Munda had disclosed that he is RMP Doctor and is engaged in treating the terrorists. This witness has also supported the prosecution case by further stating that the fire arms were recovered and seizure lists were prepared and the accused were brought to the police station. He identified the Budhan Lal Munda and the petitioner in the court. He has also described the place of occurrence. He could not disclose the name of the independent witnesses but he has stated that the seizure lists were prepared at the place of occurrence itself. This Court finds that P.W. 6 is also an eye witness to the entire occurrence and was also a member of the raiding party. Similarly P.W. 7 who was also a member of the raiding party has also fully supported the prosecution case and has narrated the entire incident and has also stated that the investigating officer of the case was not a part of the raiding team. He has stated that the seizure lists were prepared on the spot and a copy of the same was handed over to the accused persons. He has also stated that the raid was conducted in presence of two independent witnesses. P.W. 8 is the informant of the case who was also a part of the raiding team. He has also fully supported the prosecution case. He has also narrated the entire incident and has also supported the recovery of fire arms from the place of occurrence. He has also stated that in presence of two independent witnesses the raid was conducted and the seizure lists were prepared a copy of which was given to the accused persons. He is a witness who had prepared the search cum seizure list in his writing and he has exhibited his signatures as Exhibits 1 4 and 1 5 in the two seizure lists. He has identified the accused persons in court. This Court finds that the aforesaid prosecution witnesses have been duly cross examined by the defence. P.W. 3 has stated that after taking the charge of the investigation which was handed over to him after the registration of the F.I.R he had recorded the re statement and the statement of the witnesses and he had also recorded the statement of the seizure witnesses i.e. P.W. 1 and P.W. 2. He had also described the place of occurrence which he had investigated. He has stated that during the course of investigation the seized materials were sent for verification and he has exhibited the application for sending the seized fire arms for verification and verification report of Sergeant Major which he has marked as Exhibits 3 and 4 respectively. He has On 04.12.2008 the accused were examined under exhibited the double barrel gun as Material Exhibit I and the country made pistol and cartridge of .315 bore as Material Exhibits II and III respectively. He has also exhibited the sanction for prosecution which has been marked as Exhibit 5 and has stated that he had submitted the charge sheet in the case. This witness has also been fully cross examined by the defence. Section 313 of Cr.P.C wherein they completely denied the incident and claimed to have been falsely implicated. The accused persons did not lead any evidence in their defence. This Court finds that the learned trial court after considering the evidences and also the arguments of the parties was of the considered view that P.W. 1 and P.W. 2 are the seizure witnesses who have not supported the prosecution case regarding seizure in their presence but they have identified their signatures on the seizure list and apart from that the prosecution witnesses P.W. 4 and P.W. 5 who are independent witnesses have not supported the prosecution case and both have been declared hostile by the prosecution. P.W. 3 is the Investigating Officer of the case. P.W. 6 and P.W. 7 are the members of the raiding team and P.W. 8 is the informantcum member of the raiding team. After scrutinizing the evidences of P.Ws. 3 6 7 and 8 the learned trial court recorded that all these witnesses have fully supported the prosecution case in the same voice. Upon scrutinizing the evidences the learned trial court recorded that the evidences reveal that on 21.05.2006 at about 4 P.M. double barrel gun was recovered from the possession of Dhono Munda and search cum seizure list was prepared in presence of two witnesses and further from the possession of Budhan Lal Munda and Doma Munda under their mattress where they were sleeping one country made pistol with .315 bore live cartridge was recovered. The search and seizure have been fully supported by P.Ws.3 6 7 and 8 coupled with the recovery of the fire arms which have been exhibited by the investigating officer of the case P.W. 3 and have been marked as Material Exhibits I II and III. The seized fire arms were sent for examination before competent authority and examination report of the fire arms have been exhibited as Exhibit 4. The sanction for prosecution has also been exhibited. The learned trial court also considered the arguments of the defence regarding contradictions in the evidences of the witnesses and recorded that the defence could not point out any material contradictions to question the prosecution case or to create any doubt in the prosecution case. The learned trial court recorded that the prosecution has been able to prove the case against the accused beyond all reasonable doubts but recorded that the prosecution has not been able to prove the offence under Section 17 of Criminal Law Amendment Act and accordingly acquitted the accused persons for offence under the said section but convicted all the accused persons under Section 25(1b)a 26 35 of Arms Act. The learned trial court while sentencing the accused persons refused to give the benefit of Probation of Offenders Act and sentenced them accordingly. The learned lower appellate court also scrutinized the evidences on record and also considered the arguments of the parties and recorded its finding as follows: “According to the case of the prosecution after getting confidential information about staying of the criminals with arms the informant along with his associates went to the house of Dhono Munda and from there in presence of the independent witnesses recovered a country made pistol live cartridge and a double barrel gun. The police seized those arms as per law in presence of the independent witnesses and arrested all the three appellants and thereafter started investigation. After completing of investigation the police submitted charge sheet against the accused appellants for the offences u s 25(1 b)a 26 35 of Arms Act as well as 17 C.L.A Act in the court of A.C.J.M. Khunti. After conducting trial of the case the learned S.D.J.M Khunti found and held the accused appellants guilty for the offences u s 25(1 b)a 26 35 Arms and convicted them thereunder. To support the case of the prosecution altogether eight witnesses have been examined. Learned defence lawyer has submitted that there is no independent witness on the record to support the case of the prosecution. Seizure list witnesses have turned hostile and they have not supported the case of the prosecution and they have said in their evidence that nothing was recovered from the possession of accused appellants in their presence but on perusal of evidence of P.W. 6 Anjani Kumar S.I I find that double barrel gun which has been recovered from the possession of Dhono Munda has been marked material ext 1 and the country made pistol recovered from the possession of Budhan Lal Munda and Doma Munda has been marked Ext 2 and the cartridge of .315 bore has been marked Ext 3. Although seizure list witnesses namely Sanjay Munda and Sukhram Munda have not supported the seizure in their evidence but as P.W. 6 has produced the arms in court and those have been marked material exhibits seizure of the arms from the possession of the accused appellants stands proved. P.W. 2 Lakhindra Nag has although denied the occurrence in his evidence but has proved his signature on the seizure list which is marked Ext 1 2 and 1 3. He has identified the signatures on the seizure list. That goes to show that at the time of seizure he was at the P.O. P.W. 3 Chinto Das P.W. 6 Anjani Kumar P.W. 7 Gupteshwar Singh and P.W. 8 Digvijay Singh have fully supported the case of the prosecution in their evidence. Ithas been argued by the defence counsel that apart from the evidence of the appellants there is no evidence of any independent witness on the record. There is also no evidence of any witness to show that they have got any anguish against the accused appellants from before the alleged occurrence. Hence there is no chance of giving false evidence against the accused persons or connection of the case. P.W. 5 Sanjay Munda has also not supported the case of the prosecution and has been declared hostile. This area is under the direct control of hard core extremist who are in human and their cruelty is in explicable. They are playing with lives of the local people for their pleasure and to satisfy their animosity against the government. Maoist have stepped up violence in Jharkhand and due to their fear not even a single witness is daring to appear in court and depose against them. Even in the case of murder of their own son father comes to court and turns hostile due to fear of the extremist. They do not want to loose their own lives at the hands of the extremists after deposing in any case against them. Where such situation is prevailing evidence of independent witness in support of the prosecution case is rare found. As such if independent witness have turned hostile in court that should not be taken against the prosecution case but that is natural due to fear of their own life and property. All the other witnesses who are members of the raiding party have supported the case of the prosecution. Material exhibits have been produced in the court. Sanction report has also been proved by the prosecution in this case. Expert has not been examined in this case but report has been exhibited which supports the case of the prosecution. On careful perusal of the evidence available on the record as well as the impugned judgment I find and hold that the prosecution has become able to prove its case as alleged beyond the shadow of all reasonable doubts against the accused appellants for the offence u s 25a read with section 35 of the Arms Act. So far as offence under Section 26 of the Arms Act is concerned the learned appellate court was of the view that the offence was not proved and accordingly all the accused persons were acquitted for offence under Section 26 of the Arms Act. In the case of Yogesh Singh versus Mahabeer Singh reported in11 SCC 195 it has been held in para 15 that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts however the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. This Court is of the considered view that even when the seizure witnesses turned hostile the evidence of the other official witnesses who were members of the raiding team and also the evidence of the Investigating Officer were found credible by the learned courts below and their evidence has been rightly made the basis to believe the seizure. The fact remains that although the seizure witnesses did not support the case but had admitted their signatures on the search cum seizure lists. This Court finds no illegality or perversity with the aforesaid approach of the learned courts below. The witnesses have been thoroughly cross examined by the defence and the evidences of the official witnesses were found to be consistent by both the learned courts below. There is nothing on record and there is no such argument advanced by the learned counsel for the petitioner regarding any reason for false implication of the petitioner. In State of Kerala v. M.M. Mathew 4 SCC 65 the Supreme Court held prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being pubic servants they are interested in the success of their case. This view was reiterated by the Supreme Court in State of U.P. v. Krishna Gopal 4 SCC 302. The Hon’ble Supreme Court in Rameshbhai Mohanbhai Koli and others versus state of Gujarat reported in 11 SCC 111 while dealing with the appreciation of evidence in connection with hostile witnesses has held that merely because a witness is hostile the evidence of such witness cannot be said to be completely washed off. In para 16 to 18 it has been held as under: “ Hostile witness 16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. 17. In State of U.P. v. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra Gagan Kanojia v. State of Punjab Radha Mohan Singh v. State of U.P. Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. 18. In C. Muniappan v. State of T.N.11 this Court after considering all the earlier decisions on this point summarised the law applicable to the case of hostile witnesses as under:“83. … the evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence. 84. In the instant case some of the material witnesses i.e. B. Kamaland R. Maruthuturned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants but we find them to be very trivial in 85. It is settled proposition of law that even if there are some omissions contradictions and discrepancies the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth exaggeration and improvements the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus an undue importance should not be attached to omissions contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution’s witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident minor discrepancies are bound to occur in the statements of witnesses.4 SCC 649 the Hon’ble Supreme Court while considering the scope of revisional power held in paragraph 5 as follows: 5. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and therefore it would have been justified in refusing to re appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse." The Hon’ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in5 SCC 659 at para. 9 as under: “Incidentally the object of the revisional jurisdiction as envisaged u s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals. . The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however the same has been an appeal the application would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order the revision cannot succeed. If the impugned order apparently is presentable without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice interference cannot be had in exercise of revisional jurisdiction.” The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in1 JCR 684at para. 13 as follows: “It is well settled that revisional interference may be justified where: i) the decision is grossly erroneous. ii) there is no compliance with the provisions of law. iii) the finding of fact affecting the decision is not based on evidence. iv) material evidence of the parties is not considered and judicial discretion is exercised arbitrarily or In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case this Court is of the considered view that the learned courts below have passed well reasoned judgements considering every aspect of the matter. There being no perversity or illegality in the impugned judgements no interference is called for. Accordingly this criminal revision petition is hereby Bail bond furnished by the petitioner is hereby cancelled. Interim order if any stands vacated. interlocutory application if any is also Let the lower court records be immediately sent back to dismissed as not pressed. the learned court below. Let a copy of this order be communicated to the learned court below through ‘e mail FAX’ 

Summary: The revision cannot succeed where the court concerned does not appear to have committed any illegality, material irregularity, or impropriety in passing the impugned judgement and order. If the impugned order appears to be presentable, without any flaw that would render it completely perverse or unacceptable, and there is no failure of justice, revisional jurisdiction cannot be exercised. Said, Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Doma Munda Son Of Late Bair Munda vs The State Of Jharkhand [ Criminal Revision No. 33 of 2012] This judgement was provided over the facts that read the learned counsel for the petitioner has vehemently argued that the seizure list witnesses have not supported the prosecution’s case by stating that there was no seizure in their presence, but it is undeniable that they have admitted signing the seizure list. In the current case, the investigation officer and other official witnesses, as discussed in the trial and appellate court decisions, have fully supported the prosecution case, including on the point of seizure. While the learned counsel of the opposition opposed the prayer, arguing that there are concurrent findings recorded by the lower courts and that there is no scope for evidence re-appreciation under revisional jurisdiction. He also claimed that the prosecution’s official witnesses fully supported the prosecution’s case and were fully cross-examined by the defence. He argued that the learned appellate court took into account the fact that local residents do not come forward to testify against extremists due to fear. He also claimed that, given the nature and gravity of the offences, the petitioner is ineligible for any relief under Section 360 of the Cr.P.C. After hearing the learned counsel for the parties and reviewing the impugned judgments as well as the lower court records of the case, this Court concludes that the prosecution case is based on the self-statement of Sub-Inspector Digvijay Singh, Officer-in-Charge, Arki Police Station, recorded on May 21, 2006. On 21.05.2006, the Informant allegedly received confidential telephonic information that some Naxalites had stayed with arms in the house of one Dhono Munda, and after registering the sanha, the matter was informed to higher police officers, and thereafter, police officials reached Arki Police Station and proceeded to verify the information at around 3 A.M.When they arrived at the scene around 4 a.m., they took two independent witnesses, Sukhram Munda and Lakhindra Nag, and conducted the raid in their presence after surrounding Dhono Munda’s house. When the door was opened, one person was arrested and identified as Dhono Munda, who was armed with a double-barrel gun. Two more people were discovered sleeping, and their names were revealed to be Budhan Lal Munda and Doma Munda (Petitioner). It was also claimed that one loaded country-made gun was recovered from the bed and that, when asked, neither any paper nor a satisfactory explanation was provided. As a result, a seizure list was prepared in the presence of independent witnesses, and all three people were arrested. It was also claimed that Dhono Munda disclosed that he is the president of the Kishan committee and that his co-accused, Budhan Lal Munda, disclosed that he is the secretary of the Kishan committee. The petitioner stated that he is an RMP Doctor who treats extremists. Budhan Lal Munda and Dhono Munda also admitted to assisting extremists in collecting the levy.