Kanchan Chakraborty, J.@mdashThe challenge in this appeal is to the judgment dated 24.08.2010, passed by the learned Additional District and Sessions Judge, Fast Track Court-II, Howrah in Sessions Trial No. 57 of 2009 thereby convicting the appellant u/s 25(1)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for two months. On 23.10.2006, Susanta Chatterjee, S.I. of Liluah Police Station, along with other police officials had been to Belgachia Bhagar near Sree Pally Unnayan Samity at about 7.00 A.M. to hold a raid and to apprehend one F.I.R. named accused in connection with Liluah Police Station Case No. 167 of 2006. When the police officials reached there to apprehend the F.I.R. named accused, Kiran Singh, he brought out an improvised country-made pipe-gun from his waist and attempted to fire towards Susanta Chatterjee, S.I. of Police. Before he could fire, other police officials caught hold Kiran Singh and take way the firearm from him. Kiran Singh could not produce any valid document in support of possession of such firearm. He was arrested then and there and the firearm was seized under seizure list. After returning back to the Police Station, S.I., Susanta Chatterjee lodged one First Information Report on the basis of which Liluah Police Station Case No. 168 of 2006 was started u/s 307 of the Indian Penal Code read with Sections 25/27 of the Arms Act against Kiran Singh. The case was investigated into and, ultimately, charge was filed. The appellant was arrayed to face the charges u/s 307 of the Indian Penal Code and Sections 25/27 of the Arms Act. He pleaded not guilty to the charges and, accordingly, trial commenced. In course of trial, prosecution examined as many as nine witnesses. The pipegun with live cartridge, recovered from the possession of the appellant, was sent to firearms Expert who had given a report stating therein that the arm and ammunition sent for examination in connection with Liluah Police Station Case No. 168 of 2006 dated 23.10.2006 was in order and fell under the purview of the Indian Arms Act and endanger for human life. The ammunition was live and endanger for human life. That report was admitted into evidence and marked exhibit-1 on behalf of the prosecution. Firearm and ammunition were placed before the Court and marked material exhibits. Seizure list was marked exhibit-4/1, Sketch map of the place of occurrence together with index has been marked exhibit-9, First Information Report was marked exhibit-7 and the Judicial Munshikhana order was also admitted into evidence and marked exhibit. 6 on behalf of the prosecution. No witness was examined on behalf of the appellant. No document was also filed by him in course of trial. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court came to the conclusion that the prosecution brought home the charge u/s 25 of the Arms Act and, accordingly, recorded judgment of conviction and sentence u/s 25(1)(a) of the Arms Act. The learned Court did not accept the prosecution case u/s 307 of the Indian Penal Code and u/s 27 of the Arms Act.
2. Being dissatisfied with and aggrieved by the said judgment, this appeal has been preferred by Kiran Singh, mainly, on the following grounds:
(a) that the learned Judge failed to appreciate the evidence on record in its true and proper perspective;
(b) that the learned trial Judge failed to take into consideration that no public witness was examined supporting the prosecution case of seizure of firearm from the possession of the appellant;
(c) that the learned trial Court failed to appreciate that the nature of gun was not stated clearly by any of the witnesses; and
(d) that the learned Judge relied on inadmissible evidences and recorded conviction, which is liable to be set aside.
3. Mr. Panchal, learned advocate for the appellant, contended that no independent witness of alleged seizure was examined by the prosecution. The witnesses supporting the prosecution case regarding seizure of firearm were only belonging to raid party, who allegedly laid by Susanta Chatterjee, S.I. of Liluah Police Station. Their evidences cannot be accepted sacrosanct in absence of evidence of independent witness.
4. The factual background of the case is to be looked into. The appellant, Kiran Singh was badly needed by the Liluah Police Station in connection of Liluah Police Station Case No. 167 of 2006. Police was fanatically searching for him. They had been to his residence situated at Belgachia Bhagar on 23.10.2006 at about 7.00 hours. Susanta Chatterjee, S.I. of Liluah Police Station, was the leader of the raid party. Susanta Chatterjee was examined as P.W. 8 in the case. He has corroborated the facts stated in the First Information Report. As P.W. 8 he had made it clear that at 7.00 hours on the relevant date, he along with forces had been to the house of the appellant and as soon as the appellant had seen the police officials, he tried to fire by using his pipe-gun, but could not succeed as the other police officials apprehended him and took away the loaded pipe-gun with live ammunition from his possession. The P.W. 8 also stated that the seizure list was prepared on the spot, some residents of the adjoining colony were also present, but they did not agree to sign the seizure list. That fact has been stated in the First Information Report clearly. The First Information Report, which has been marked as exhibit-7, shows clearly that all local witnesses were asked to be seizure witness, but they refused to be seizure witness. This is, perhaps, normal behaviour so far as those persons are concerned because they were the residents of the area where the appellant was a resident. The appellant was not a man of good reputation or not having good antecedents. So, no one could get courage to help the prosecution.
5. Mr. Chakraborty, learned advocate for the respondent/State of West Bengal, contended that the evidence of P.W. 8 was supported by other P.Ws., such as, P.Ws. 1, 2 and 4, who had specifically stated that on the relevant date and time, as stated by the P.W. 8 and as mentioned in the First Information Report, they had been to Belgachia Bhagar in order to apprehend Kiran Singh in connection with Liluah Police Station Case No. 167 of 2006 and that seeing the police officials, Kiran Singh tried to opon fire from his firearm, but could not do so as he was apprehended and his firearm and live ammunition were taken away by the other police officials. Mr. Chakraborty contended that there was no reason for the learned Trial Judge to disbelieve the statement of P.W. 8 and other witnesses examined on behalf of the prosecution in support of the seizure of firearm.
6. The firearm, which was allegedly seized, was placed before the Court and admitted into evidence and marked material exhibit. That was identified by all the witnesses, who had taken part in the alleged raid on the relevant date and time and witnessed the incident. The said firearm with live ammunition were also sent to the P.W. 3 for examination, who stated categorically in his report that the firearm was in workable condition and the ammunition found was live. Both the firearm and the ammunition were endanger for human life. He stated about empty cartridge, which was also marked material exhibit-2. This part of his evidence, however, is not matching with the prosecution case. No where it has been stated by any witness that an empty cartridge was recovered by the police officials who hold the raid from the spot.
7. There is no rule of law that evidence of police officials is to be discarded simply because they are police officials. It is clearly stated in the First Information Report that the all the local witnessed were asked to be the seizure witness but they refused to be seizure witness. This fact was supported by other P.Ws. also. In such a case, absence of independent witness to the seizure does not necessarily imply that what the witnesses have stated and what has mentioned in the seizure list and what was produced in Court were entirely fabricated and false. The fact that the firearm with live cartridge was seized from the possession of Kiran Singh, the appellant, has been established by consistent, cogent and credible evidence. Therefore, this court finds no wrong in the judgment of the learned Judge holding that the firearm in question was seized from the possession of the appellant for which he could not place any valid document.
8. Mr. Panchal, learned advocate for the appellant, contended that the witnesses have described firearm, which was allegedly seized, in a different way. Some witnesses described it as pipe-gun while another described as pistol or revolver. That being the fact, the nature of firearm was not proved and established.
9. I appreciate the contention of Mr. Panchal. But, this fact alone does not necessarily lead to a conclusion that the police party led by P.W. 8 had actually recovered one firearm with live ammunition from the possession of the appellant on that particular date and time. When the expert has stated that it was a country-made improvised type of shot pipe-gun, the nature and character of the firearm is clear irrespective of the fact that some witnesses described it as pistol and revolver. In fact, it was a pipe-gun and describing it as a pistol or revolver, has not demolished the prosecution case that an improvised country-made shot pipe gun was recovered from the possession of the accused/appellant.
10. The case record if perused minutely and the judgment impugned is read seriously, it would reveal that this appellant is a man having record of criminal activities. He was having criminal antecedents and connected with different cases. It is not unlikely that he attempted to open fire on police officials. He was so dare that he brought out the pipe-gun from his waist and aimed at the police personnel in order to avoid arrest. The local persons did not agree to sign seizure list as witnesses of the seizure, obviously, out of fear. The learned trial Court has taken everything into consideration as it appears from the judgment impugned. The learned Trial Court has rightly acquitted the appellant from the charge u/s 307 of the Indian Penal Code and Section 27 of the Arms Act but found him guilty for committing offence u/s 25(1)(a) of the Arms Act. This Court finds no reason to upset the judgment of conviction. Accordingly the judgment of conviction and sentence is upheld and the appeal fails.
11. Interim order, if any, stands vacated.
12. There will, however, be no order as to costs.
13. Learned trial Court is directed to see that the sentence passed by it is given effect to without delay.
14. Department is directed to send down the Lower Court Records without delay to the Court concerned. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities.
