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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, JORHAT
PRESENT: Smt. P. Kataki, A.J.S.
Addl. Sessions Judge, Jorhat
Criminal Appeal No. 11 of 2015
(This appeal against conviction has been filed under Section 374(3)(a) of the
Code of Criminal Procedure, 1973 challenging the impugned Judgment and Order
dated 02.04.2015 passed by the learned CJM, Jorhat in GR Case No. 1280 of
2007 u/s 25(1-B)(a) of the Arms Act, 1959)
Satyajit Phukan@ Kan ……… Appellant
-Versus –
1. Apurba Kr. Bora
2. The State of Assam ……....Respondents
Appeal filed on: 02.05.2015
Arguments heard on: 19.07.2019
Judgment Delivered on: 29.07.2019
ADVOCATES WHO APPEARED IN THIS CASE ARE:
Smt. Bijulata Das………………………………….Advocate for the Appellant
Shri Siddique Ali, Addl. PP………………….. Advocate for the State
JUDGMENT
1. This appeal under Section 374 of the Code of Criminal Procedure, 1973 is
preferred against judgment and order dated 02.04.2015 passed by the learned
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CJM, Jorhat, Md. D. Ullah in GR Case No. 1280 of 2007 u/s 25(1-B)(a) of the
Arms Act, 1959 convicting the Appellant and sentencing him to undergo rigorous
imprisonment for one year and pay fine of Rs.5000/- (Rupees Five Thousand
only) in default to further rigorous imprisonment for two months.
2. In order to appreciate the merit of this appeal, the essential factual
details as per the version of the prosecution is that on receipt of an ejahar before
the officer-in-charge, Jorhat police station, filed by S.I. Apurba Kumar Bora of
Moriani police station, alleging therein that on 17.10.2007, at about 2.10 p.m.,
getting secret information, he along with the SDPO, Titabor, and other staff
followed two persons proceeding on a motor cycle and on the road from Jorhat
to Moriani, stopped the motor cycle bearing registration No.AS03E-7665 and
during search, six round of 9 m.m. live cartridges were recovered from the
pocket of one of the occupants, namely Satyajit Phukan. The other occupant of
the said motor cycle was one Monoj Sharma and both of them could not produce
any valid document in support of the possession of the said ammunitions and the
said ammunitions were being brought to Jorhat from Nagaland.
3. On receipt of the said ejahar, the officer-in-charge of Jorhat police
station, registered the Jorhat P.S. case No.643/07, u/s 25(1-A) Arms Act and
caused the investigation and after completion of investigation, the concerned I.O.
submitted the charge sheet against accused persons Satyajit Phukan alias Kan
and Monoj Sharma alias Raju u/s 25(1-A) of Arms Act, 1959.
4. In due course, the accused persons appeared before the Court, the
copies of relevant documents were furnished to them u/s 207 of the Cr. P.C. and
having found sufficient incriminating materials against both the accused persons,
charge of offence u/s 25(1-B)(a) of Arms Act, 1959 were framed, read over and
explained to the accused persons to which they pleaded not guilty and claimed to
be tried.
5. In order to bring home the charges levelled against the accused persons,
the prosecution examined five witnesses. After closure of prosecution evidence,
the statements of the accused persons u/s 313 of the Cr.P.C. was recorded. The
defence plea of the accused is total denial. The accused persons declined to
adduce any defence evidence.
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6. The learned trial court framed the following point for determination:-
“ Whether the accused persons, on 17.10.2017, at about 2.10 p.m., on the
Jorhat Moriani road, at Jorhat town near G.K. Palace, were found unlawfully
possessing 6(six) Nos. of factory made (KF) 9 mm live ammunitions, and thereby
committed an offence punishable u/s 25(1-B)(a) of Arms Act?”
7. After examining the evidence on record and hearing the arguments
advanced by the learned counsels for both the sides, the learned Trial court
acquitted accused Monoj Sharma of the offence under Section25(1-B)(a) of Arms
Act, 1959. The above point was decided in the affirmative in so far as accused
Satyajit Phukan @ Kan is concerned and passed the impugned judgment and
order dated 02-04-2015, convicting him as aforesaid.
8. The accused feeling aggrieved by the order of conviction has preferred an
appeal before this Court. In the appeal, the Accused persons have taken the
following grounds namely:-
(a) The judgment and order of conviction and sentence of payment of fine
are untenable in law as well as on facts.
(b) That there is no corroboration in testimony of the witnesses.
(c) That the witnesses are all prejudicial and there is no outside to support
the occurrence if any.
(d) That evidence for any common intention is lacking.
(e) That the charges have been also defectively framed and not according to
the complained, charge-sheet of which the copies were furnished to the
accused.
(f) That the statements of the accused should not have been disbelieved by
the Trial Court.
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(g) That evidences are not sufficient for such conviction and sentence and
the Trial Court failed to appreciate the evidences and previous records,
conduct and age of the accused.
(h) For the statements of the Appellant /accused were not recorded in
conformity to the law and procedure.
(i) That nothing was heard regarding the quantum of sentence, conviction
and fine and the Trial Court failed to appreciate his age, avocation,
antecedents and statements.
(j) That the Trial Court failed to appreciate the evidence on record.
POINT FOR DETERMINATION
9. From the materials available on record the point for determination in the
instant appeal is “Whether the impugned judgment and order dated 30.04.2015
is sustainable in the law and facts of the case? “
10. I have carefully examined the impugned judgment and order dated
30.04.2015, the memorandum of appeal, the evidence and the documents on
record and after hearing the arguments advanced by the learned counsels for
both the sides, give my decision as follows:-
11. The learned counsel for the accused vehemently argued that the learned
court below erred in law and facts in passing the impugned judgment and order
dated 30.04.2015 in as much as the prosecution has failed to prove their case.
Therefore, the learned counsel for the accused has submitted that the impugned
judgment and order is liable to be set aside and quashed.
12. On the other hand, the learned Addl. PP for the State has argued that
applying judicial mind and relying on the evidence on record, the learned trial
court has rightly passed the impugned judgment and order dated 30.08.2016.
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Therefore, the learned Addl. PP has submitted that the appeal may be dismissed
and the impugned judgment and order may be upheld.
13. In order to appreciate the rival contention set forth by the parties, let me
now discuss the evidence on record.
14. PW- 1 Sri Jiban Saikia deposed that on 15.12.2007, while he was working
as Armourer at Assam police Training Centre at Dergaon, on that day he received
one sealed packet sent from Jorhat P.S. through special messenger. The same
was given to him for examination by their Commandant of the training centre
with reference to Jorhat P.S. case No.643/07, u/s 25(1)(a) of the Arms Act. The
sealed packet contained 6 Nos of factory made (KF) 9 mm live ammunitions and
then the same were made Ext.A. On examination of the said ammunition he
found that the same were factory made live ammunitions and were serviceable
condition. He has confirmed his report as Ext.1 wherein Ext.1 (1) is his signature.
15. In his cross examination he stated that he had not found any authority
slip endorsing him to examine the above ammunitions. He has not seen the
exhibited item before the court and he has also not produced any document to
show that he is an Armourer.
16. PW-2 Sri Lalit Doley deposed that on 17.10.2007 they came to know from
the SDPO that some persons had entered into the area with arms and
ammunitions. Then the SDPO Titabor along with other staff including himself
followed one motor cycle and near GK Palace, Jorhat, they stopped the motor
cycle and the two occupants were searched. During search, some ammunitions
were recovered from their possession. Then both the accused were brought to
Moriani police station and the recovered ammunitions were seized vide Ext.2
wherein Ext.2 (1) is his signature. Material Ext.1 is the seized ammunitions.
17. In his cross examination he has stated that he does not remember the
registration number of the motor cycle rode by the accused persons at that time.
He had stated before the police that the search was made near the Rail gate and
not near GK palace. He put his signature on the seizure list at the police station.
At the relevant time accused Monoj Sharma was riding the bike and accused
Satyajit was the pillion rider from whose pocket the alleged ammunitions were
recovered. The defence suggestion to him that he has deposed falsely against
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the accused persons in favor of the SDPO Titabor, but he has denied the said
suggestion. He, however, did not notice out of the two accused who rode the
bike at that time.
18. PW-3 Debasis Bora deposed that he knows the accused persons as wsell
as the informant. On 17.10.2007 while he was working as the SDPO, Titabor, on
that day at about 12.30 p.m. he went to Moriani police station for inspection.
Then having come to know that two youths were proceeding from Moriani side
towards Jorhat on a motor cycle, he along with other police personnel came
towards Jorhat and near the rail gate, and a hotel namely GK palace seeing the
motor cycle bearing registration No.AS03B/7665, searched its riders and from the
possession of accused Satyajit Phukan, six rounds of live 9 mm ammunitions
were recovered.
19. In his cross examination he stated that nothing was seized from the
possession of accused Monoj Sharma. The ejahar of this case was filed at Moriani
police station and he does not know who had investigated into the case. He also
did not put his signature in the seizure list vide which the alleged motor cycle
was seized.
20. PW-4 UBC 487 Mohan Changmai deposed that on 17.10.2007, while SI
Apurba Kumar Bora seized six rounds of 9 mm live ammunitions along with one
motor cycle from the accused persons, he put his signature in Ext.2, the seizure
list, wherein Ext.2(2) is his signature. Though the seized ammunitions were
shown to him at that time, but he cannot specially state whether M. Ext.1 are the
same ammunitions or not.
21. PW-5 Sri Apurba Kumar Bora, the I.O. stated that having come to know
from the statements of one Naga person and another that Satyajit Phukan had
used arms and ammunitions, they were attempting to apprehend him. On that
day, while he along with the SDPO, Titabor and others were coming from Moriani
towards Jorhat, on the Jorhat Moriani road, near G.K. Palace at Jorhat, seeing
said Satyuajit Phukan proceeding on a motor cycle, road by accused Monoj
Sharma, they stopped them and searched their persons. During search, they
recovered six round of 9 mm live ammunitions from the possession of accused
Satyajit Phukan and he seized the said ammunition and the motor cycle vide
Ext.2, wherein Ext.2(3) is his signature. Ext.2 (4) is the signature of accused
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Satyajit Phukan and Ext.2 (5) is the signature of accused Monoj Sharma. As the
place of recovery is under the jurisdiction of Jorhat police station, so he filed the
ejahar at Jorhat police station. Ext.3 is the ejahar wherein Ext.3 (1) is his
signature. He has also seen the seized ammunitions ie. material Ext.1, before the
court.
22. In cross examination he stated that he does not know about the
ownership of the seized motor cycle. He has not submitted any document before
the court in support of the statements of any person, from which he came to
know that accused Satyajit Phukan used arms and ammunitions. He has admitted
that 9 mm ammunitions are the same all over the world. He however did not
mention the number of each cartridge in the seizure list.
23. The first contention of the learned counsel for the Appellant is that there
are serious contradictions in the prosecution case in as much as PW-2 Lalit Doley
stated before the police that the search was made near the Rail gate and not
near GK palace whereas the seizure list (Ex.2), vide which 6 Nos. of live
ammunitions and one motor cycle bearing registration No.AS03E/7665 were
seized from the possession of Satyajit Phukan and Monoj Sharma states that the
search and seizure was made in front of GK palace. As per the Learned Counsel,
this contradiction makes the entire case of the prosecution doubtful.
24. In Sohrab s/o Beli Nayata and Anr. vs. The State of Madhya
Pradesh (1972) 3 SCC 751 , the Hon’ble Apex Court dealing with the issue of
minor contradictions in the statements of prosecution witnesses held as under:
".....It appears to us that merely because there have been discrepancies
and contradictions in the evidence of some or all of the witnesses does
not mean that the entire evidence of the prosecution has to be discarded.
It is only after exercising caution and care and sifting the evidence to
separate the truth from untruth, exaggeration, embellishments and
improvement, the Court comes to the conclusion that what can be
accepted implicates the appellants it will convict them. This Court has
held that falseus in uno falsus in omnibus is not a sound rule for the
reason that hardly one comes across a witness whose evidence does not
contain a grain of untruth or at any rate exaggeration, embroideries or
embellishments. In most cases, the witnesses when asked about details
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venture to give some answer, not necessarily true or relevant for fear that
their evidence may not be accepted in respect of the main incident which
they have witnessed but that is not to say that their evidence as to the
salient features of the case after cautious scrutiny cannot be considered
though where the substratum of the prosecution case or material part of
the evidence is disbelievable it will not be permissible for the Court to
reconstruct a story of its own out of the rest....."
25. In Hari Om vs State (N.C.T)[Crl.A.No.605 OF 2007], the Hon’ble
Delhi High Court discussing the aspect of contradictions in the testimony of a
witness held as under:
16. ……..The contradiction, if any, on the question as to what the father
of the prosecutrix was doing in the house, cannot at all be said to be
material considering the fact that reply to such questions related to
peripheral aspects of the case are given only by whatever one is able to
recollect at the time when he is examined in court. Everyone cannot
recollect minor details of a past incident with complete accuracy and he,
while replying to such questions, gives an answer based upon his
recollection of the event at that point of time. Therefore, minor
contractions on such peripheral issues which do not constitute the core of
the matter, cannot be said to be material and not much importance can
be attached to these minor discrepancies which are otherwise bound to
come in the case of truthful witnesses. Since everyone does not have
equal power of observation, retention and reproduction, which varies
from individual to individual, there is bound to be some difference while
giving details un- related to the main incident. The approach of the court
while evaluating the testimony of a witness should be to see whether
his/her evidence, when examined as a whole, appears to be true, or not.
If the impression formed by the court is that the witness appears to be
truthful and trustworthy, his/her evidence needs to be scrutinized
taking into consideration the discrepancies and infirmities pointed out in
his /her evidence and the court should then evaluate the testimony of the
witness, to decide whether the evidence given by him/his in the court
stands impeached or shaken, rendering him/her unworthy of reliance, in
the light of the discrepancies or infirmities pointed out in his/her
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testimony. This is more so, when the witness comes from a lower strata
of the society and, therefore, does not have the temperament or the
capacity to match the skills and training of an experienced lawyer who
cross-examined him/her in the court. Minor discrepancies in the testimony
of such witness, which are not related to the core issue involved in the
case, need not be given much importance and the testimony of such
witnesses should not be discarded on account of such minor discrepancies
or infirmities.
26. Thus, it is clear that not all contradictions have to be thrown out from
consideration but only those which go to the route of the matter are to be
avoided or ignored. In the case on hand, merely on the basis
of minor contradictions in the deposition of PW-2 about the place of search and
seizure, the statements of the PWs cannot be ignored in toto. On the other hand,
I agree with the conclusion of the Learned Trial Court that PW.2 Lalit Doley,
PW.4 Mohan Changmai and PW.5 Apurba Kumar Bora have proved the seizure
list(Ex.2), vide which 6 Nos of live ammunitions and one motor cycle bearing
registration No.AS03E/7665 were seized from the possession of the accused
persons and PW.2 Lalit Doley, PW3 Debasis Bora, PW.4 Mohan Changmai and
PW.5 Apurba Kumar Bora have proved that the seized 9 mm ammunitions were
found from the possession of accused Satyajit Phukan. Contradictions pointed
out by the Learned counsel for the accused does not go to the substratum of the
case and as already stated above, the law is well-settled that minor discrepancies
which do not affect merits of the case cannot be given undue importance and it
is duty of the Court to separate grain from chaff. Accordingly, I reject the claim
of the accused.
35. Learned counsel appearing for the accused has also assailed the
impugned judgment by submitting that no independent witnesses were present
during the search and seizure and the Complainant including all other
prosecution witnesses were official witnesses. She further submitted that no
witnesses of the public or of the place of occurrence were examined which itself
raises serious doubt on the prosecution version.
36. Appreciating the above materials on record, it is found that the search
and the seizure was made by PW-5 Apurba Kumar Bora, IO , PW-2 Lalit Doley
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and PW-4 UCB 487 Mohan Changmai are the seizure witnesses of Ext. 2 seizure
list dated 17.10.2017. Both PW-2, PW-4 and PW-5 are official witnesses. It is
settled law that evidence of official witnesses is not to be disbelieved or
discarded merely for reason that they are official witnesses. Presumption is that
every witness is impartial and independent unless proved contrary. There is no
presumption for doubting credibility of official witnesses in principle. Statements
of official witnesses can be basis for conviction of accused. However, before
basing conviction on evidence of official witnesses, strict scrutiny with care and
caution is required particularly when there are material contradictions and
discrepancies in evidence of official witnesses.
37. In Yakub Abdul Razak Memon Vs. State of Maharashtra [2013
(13) SCC 1], reiterating the principle laid down in judgment reported in (1995)
4 SCC 255, the Apex Court has held as under:-
"360. In Pradeep Narayan Madgaonkar and Ors. vs. State of
Maharashtra this court upheld that:-
"11...........the evidence of the official (police) witnesses cannot be
discarded merely on the ground that they belong to the police
force and are either interested in the investigating or the
prosecuting agency. But prudence dictates that their evidence
needs to be subjected to strict scrutiny and as far as possible a
corroboration of their evidence in material particulars should be
sought. Their desire to see the success of the case based on their
investigation and requires greater care to appreciate their
testimony".
38. In Kulwinder Singh and another Vs. State of Punjab [(2015) 6
SCC 674], the Hon’ble Supreme Court has held as under:-
"23. ...........When the evidence of the official witnesses is trustworthy
and credible, there is no reason not to rest the conviction on the basis of
their evidence".
39. Appreciating the materials on record, the Learned Trial Court rightly came
to the conclusion that PW.2 Lalit Doley, PW.4 Mohan Changmai and PW.5 Apurba
Kumar Bora have proved the seizure list(Ex.2), vide which 6 Nos. of live
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ammunitions and one motor cycle bearing registration No.AS03E/7665 were
seized from the possession of Satyajit Phukan and Monoj Sharma. Similarly, after
perusal of the statements of the prosecution witnesses, being PW.2 Lalit Doley,
PW3 Debasis Bora, PW.4 Mohan Changmai and PW.5 Apurba Kumar Bora, the
Trial Court rightly concluded that the seized 9 mm ammunitions were found from
the possession of accused Satyajit Phukan. During cross examination although
the defence suggested that no such seizure was made from their possession, but
they could not able to rebut the material evidence in respect of the seizure of the
item vide Ext.2, more specially, the seizure of 6 Nos of 9 mm ammunition from
the possession of accused Satyajit Phukan. As such, I not find any justification
to interfere with the impugned judgment and order of the Learned Trial Court
only on the ground that the seizure witnesses were official witnesses.
40. Another ground urged by the Learned Counsel appearing for the accused
for upsetting the impugned judgment and order is that no prosecution sanction
was obtained for launching prosecution against the accused.
41. Section 3 of the Arms Act, 1959 provides that no person shall acquire,
have in his possession, or carry any firearm or ammunition unless he holds in this
behalf a licence issued in accordance with the provisions of the Act and the rules
made thereunder. Further, Section 39 of the Arms Act, 1959 provides that No
prosecution shall be instituted against any person in respect of any offence under
section 3 without the previous sanction of the district magistrate.
42. This being a prosecution for contravention of Section 3 of the Arms Act,
1959, sanction of the District Magistrate was necessary under Section 39 of the
said Act. Perusal of the case record reveals that the sanction order granted by
the District Magistrate, Jorhat on 29.08.2008 permitting launching of prosecution
against the accused Satyajit Phukan @ Kan and Monoj Sharma under Section
25(1-A) of the Arms Act , 1959 for possessing ammunitions without any valid
license as required under the Act. While sanctioning the said prosecution, it was
mentioned that the prosecution be carried out under Section 25(1-A) of the Arms
Act.
43. In the present case, the accused Satyajit Phukan @ Kan was found in
possession of 6 Nos. of 9 mm ammunition and he could not show any papers for
possession of said ammunition. Prosecution has proved the Armourer’s report
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Ext.1 and perusal of the same shows that the seized 6 Nos. of 9 mm ammunition
were live, serviceable and factory made. The armourer Jiban Saikia has been
examined as PW- 1 and he has proved his report. It is, thus, found that the
prosecution has been able to establish actual possession of firearms in the
possession of the accused Satyajit Phukan @ Kan without any valid papers. The
accused person has, thus, contravened provisions of Section 25(1-B)(a) of the
Arms Act, 1959.
44. Section 25(1-A) of the Arms Act provides that whoever acquires, has in
his possession or carries any prohibited arms or prohibited ammunition in
contravention of section 7 shall be punishable with imprisonment for a term
which shall not be less than five years, but which may extend to ten years and
shall also be liable to fine. On the other hand, as per Section 25(1-B)(a) of the
Arms Act whoever acquires, has in his possession or carries any firearm or
ammunition in contravention of section 3 shall be punishable with imprisonment
for a term which shall not be less than one year but which may extend to three
years and shall also be liable to fine. As per the proviso, the Court may for any
adequate and special reasons to be recorded in the judgment impose a sentence
of imprisonment for a term of less than one year.
45. From the perusal of Section 25(1-A) and Section 25(1-B)(a) of the Arms
Act, it is apparent that offence u/s 25(1-A) attracts higher punishment than the
offence u/s 25 (1-B)(a)and further considering that possession of firearm is basic
ingredient in both offences, the offence u/s 25(1-B)(a) can be said to minor
offence of Section 25(1-A) of the Arms Act. Thus, though sanction for
prosecution was granted under Section 25(1-A) of the Arms Act and the charge
was framed under Section 25(1-B)(a) of the Arms , that said variation in my
opinion has no bearing in the prosecution against the accused/appellant. No
prejudice can be said to have been caused to the accused since he is being
punished for a minor offence under Section 25(1-B) (a) of the Arms Act even
though the sanction was obtained for prosecution for offence under Section
25(1-A) of the Act.
46. In view of above discussions, I hold that the prosecution has been able to
prove the guilt of the accused u/s 25(1-B)(a) of the Arms Act beyond all
reasonable doubt as the evidence is a definite pointer towards the guilt of the
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accused person. Therefore, I do not find any illegality or infirmity in the
impugned order and judgment dated 02.04.2015 passed by the learned Trial
court convicting the accused/appellant under the above provision of law.
47. Now, whether the sentence awarded to the accused/appellant in respect
of above provision of law by the learned Trial court is in accordance with law. In
the instant case the accused/appellant has been held guilty of offences u/s 25(1-
B)(a) of the Arms Act and sentenced to undergo rigorous imprisonment for one
year and pay fine of Rs.5000/- (Rupees Five Thousand only) in default to further
rigorous imprisonment for two months which is the minimum period of
imprisonment provided under Section 25(1-B) (a) of the Act. Given the nature of
the crime committed by the accused and in view of the fact that the Learned
Trial Court has imposed only the minimum statutory period of imprisonment on
the accused/appellant, I do not deem it appropriate to interfere with the same.
48. Accordingly, the appeal is dismissed.
49. The order of stay is hereby vacated.
50. The accused are directed to surrender before the Ld. Trial Court to serve
out the sentence for offence under Section 25(1-B)(a) of the Arms Act, 1959.
51. Send back the case record alongwith a copy of this judgment to the Ld.
Trial Court immediately.
52. Signed, sealed and delivered in the open Court on this the 29th day of
July, 2019 in Jorhat.
(Smt. P. Kataki) Addl. Sessions Judge, Jorhat
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