RAVI NEPALI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant application is directed against the judgment dated 23.03.2013, passed by the learned Principal Sessions Judge, East Singhbhum at Jamshedpur, in Criminal Appeal No.24 of 2011, whereby the appeal preferred by the petitioner alongwith the co-accused-Binod Yadav has been dismissed and the judgment of conviction and order of sentence dated 04.02.2011 passed by the learned Judicial Magistrate-1st Class, Jamshedpur in G.R. Case No. 2101 of 1999 (T.R. No. 1751 of 2011) whereby the petitioner has been convicted for the offence punishable under Section 25(1-B)a and 26(1) of the Arms Act and sentenced to undergo R.I. for 2 years with fine of Rs. 1,000/- and in default of payment of fine further S.I. for one month, has been affirmed.

(2.) The prosecution case in brief is that the informant received information that the petitioners were sitting together. On this information, the informant alongwith other officers came near the place of occurrence. After seeing the police party, both the accused persons started fleeing away. However, they were apprehended and disclosed their names. The further case of the prosecution is that in presence of the witness, search was made and from the possession of the petitioner one country made loaded pistol was recovered, however, the accused persons did not produce any document for possessing the fire arm. Pursuant to that, the case was instituted.

(3.) Learned counsel for the petitioners has vehemently argued that the independent witness/seizure list witness has not been examined in this case and as such, the seizure itself has not been proved. He further submits that in the case in hand non-examination of independent witness would demolish the entire prosecution case. He further submits that even the I.O. has not been examined in this case and the learned trial court without considering the facts and circumstances of this case has passed the impugned order of conviction. Even the learned appellate court failed to appreciate that when no independent witness has been examined then no case is made out under Section 25(1-B)a and 26(1) of the Arms Act. The counsel for the petitioner relied upon the judgment passed in Naresh Kumar @ Nitu Vs. State of Himachal Pradesh, 2017 15 SCC 684 at paragraph-8, which is quoted hereinbelow: