YOGENDRA KUMAR OJHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN these three appeals, the appellants have challenged the judgment dated 23.3.2007 passed by the Addl. judicial Commissioner, Ranchi, in Sessions Trial No. 691 of 1997 whereby two of the appellants namely Yogendra Kumar Ojha and Anil Kumar Ojha alias Raju Ojha have been convicted for offences under Section 25(1A) of the Arms Act and sentenced to imprisonment for eight years and line of rupees 20,000/ - each for the said offence, while the appellant Jitendra Bohra was convicted for the offence under Section 25(1A) read with Section 35 of the Arms Act and was also sentenced to undergo rigorous imprisonment for eight years and fine of rupees 20,000/ - (rupees twenty thousand).

(2.) THE appellants along with one co -convict Surendra Singh @ Surendra Singh Bangali were charged with and put on trial for offences under Section 25(1A) and Section 35 of the Arms Act and Section 414 of the Indian Penal Code. The case against the appellants was registered on 24.6.1997 at 5.00 p.m. on the basis of a written report lodged by Rana Pratap Singh, Sub Inspector of Police of Namkom Circle. The case of the prosecution as per the written report is that on 24.6.1997 at about 2.00 -3.00 p.m. the informant was present at the Tatisilwai Police Station. At that time, the officer incharge of Lalpur Police Station, namely Rajiv Ranjan Kumar came to the Police Station along with S.I. Vijay Kumar Prasad, ASI Surendra Singh and armed personnel and bought along with them one accused Surendra Singh @ Surendra Singh Bangali who was arrested in connection with Lalpur PS Case No. 31 dated 4.4.1996 which was registered for offences under Sections 302/307/324 of the Indian Penal Code, and Section 27 of the Arms Act. S.I. Rajiv Ranjan Kumar informed that the arrested accused had confessed that he had kept illegal firearms under the care of Bharat Mineral Ceramics Industries' owners namely Yogendra Kumar Ojha and Anil Kumar Ojha @ Raju Ojha, in the room of the residential house and in a room on the first floor of their office at their factory situated within the campus of the Bharat Mineral Ceramics Industries. The above information was recorded as Station Diary entry No. 499 dated 24.6.1997 at the Tatisilway Police Station and a raiding party consisting of the officer incharge of Tatisilway PS Naresh Bahadur Singh; SI. Dilkeshwar Ram; armed havildar Bhavesh Chandra Jha, constables Chandrika Rai, Ram Singh, Mahendra Srivastava and a Havildar Lakshmi Singh was constituted. The armed police personnel who came from Lalpur Police Station also accompanied the raiding party together with the informant and the arrested person Surendra Singh @ Surendra Singh Bangali. On the way, they requested two independent witnesses of the locality namely Sitaram Singh and Sunil Das to accompany them. The informant along with the raiding police party proceeded to the factory of Bharat Mineral Ceramic Industries with the arrested accused Surendra Singh @ Surendra Singh Bangali. It is alleged that the arrested accused Surendra Singh @ Surendra Singh Bangali led the police raiding party to the residential house of the factory owners situated in the northern portion within the factory premises. After entering into the bed room of the residential house of the appellant Anil Kumar Ojha @ Raju Ojha, Surendra Singh @ Surendra Singh Bangali opened a steel almirah with a key which was in his possession and brought out a magazine of AK47 Rifle and produced the same before the informant. Surendra Singh @ Surendra Singh Bangali next entered into the bed room of the appellant Yogendra Kumar Ojha and opened a wooden almirah with a key which was in his possession and from the almirah, he brought out a revolver of Smith & Watson Co., made in USA, which was loaded with three live cartridges of .38 calibre and also 20 rounds of cartridges and handed them over to the informant. At the time of raid and recovery of the firearms, both the owners of the factory i.e appellants Yogendra Ojha and Anil Kumar Ojha were present in the house. It is further slated that thereafter Surendra Singh @ Surendra Singh Bangali led the raiding party to the first eastern room on the upper floor of the office of the factory and with a key in his possession, he opened the lock of the door and from within the pile of husk in the room, Surendra Singh @ Surendra Singh Bangali brought out a black bag containing carbine of 9 mm size with marks - No. KR 767483 inscribed on it, besides a magazine and 39 rounds of live cartridges and produced the same before the informant. Both the owners of the factory were also present at the time of the recovery. Thereafter, Surendra Singh @ Surendra Singh Bangali proceeded to another room situated on the same floor and with the key which was in his possession, he brought out from underneath the pile of coal bags, one AK 47 rifle bearing No. NH350593, two magazines of AK 47 rifle, 100 rounds of live cartridges of AK47 rifle bearing the inscription 7 -62 mm. The informant found all the recovered firearms to be regular firearms for the possession of which neither Surendra Singh @ Surendra Singh Bangali, nor the appellants Yogendra Ojha, or Anil Kumar Ojha produced any licence or paper, nor could they give any satisfactory reply to the informant. It is alleged that at the time of raid in the factory, the appellant Jitendra Bohra was also present and on the belief that the recovered firearms were kept in the factory premises within his knowledge and since he could not produce any paper or give satisfactory reply, he along with Yogendra Kumar Ojha and Anil Kumar Ojha was also arrested. The recovery of the firearms was made in presence of the aforesaid two witnesses and a seizure list was prepared in their presence and their signatures were obtained on the seizure list and a copy of the seizure list was handed over to each of the arrested accused/appellants. Besides, the recovered firearms, the lock and key of two rooms pertaining to the office rooms on the upper floor of the factory, were also seized and a seizure list thereof was prepared in presence of the two witnesses. It is further alleged that a blue coloured Maruti Car bearing No. 14B 9911 was found near the residential house within the factory premises. On the basis of the disclosures made by the arrested accused Surendra Bangali that he used the aforesaid vehicle in commission of various offences, the informant seized the vehicle and prepared a seizure list thereof in presence of the above named independent witnesses. The informant adds further that the appellant Surendra Bangali had confessed that he had concealed the firearms within the factory premises and house of the factory owners Yogendra Kumar Ojha and Anil Kumar Ojha and it was within the knowledge of the appellant Jitendra Bohra that he used to visit the premises since he was in partnership with the appellants Yogendra Kumar Ojha and Anil Kumar Ojha.

(3.) ALTOGETHER 21 witnesses were examined by the prosecution at the trial including the informant (PW1) and other police personnel who had constituted the raiding party and in whose presence the firearms were recovered. Both the seizure witnesses (PW 3 and PW 15) were examined as independent witnesses to the seizure. PW2, who is Sergeant Major, was examined as a ballistic expert who has claimed to have examined the seized firearms and ammunitions and certified the same to be usable and functional. In addition, PW21 had been examined to prove the sanction accorded by the Collector, Ranch, for prosecution of the appellants for the aforesaid offences. PW10, the investigating officer was also examined. The appellants in their defence had also examined six witnesses. Several documents were also brought on record in evidence both by the prosecution as well as the defence.