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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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