Arms Act of 1878

Material evidence on record to be proved unanimously

29 February 2020


High Court Division :
(Criminal Appellate Jurisdiction)
Obaidul Hassan J
SM Kuddus Zaman J
Chitta Gain ………………    
Accused-Appellant
           vs
State………..Respondent
Judgment     
May 20th. 2019
Arms Act (XI of 1878)
Section 19A        
The informant, members of the police special operation team and the seizure list witness have given materially contradictory and different versions as to the place and manner of recovery of gun and cartridges and the type or class of the firearms from the possession of the appellant. Tribunal had miserably failed to analysis the material evidence on record properly, The judgment guiders from serious legal infinity which is not lendable in law ……(15 & 23)
Sarwar Ahmed, Advocate-For the Appellant
Rafi Ahmed DAG with Md Shafquat Husain, AAG-For the Respondent
Judgment
SM Kuddus Zaman J : This criminal Appeal under Section 30 of the Special Powers Act, 1974 at the instance of the accused-appellant is directed against the impugned judgment and order of conviction and sentence dated 17-8-2003 passed by the learned Judge, Special Tribunal No.3, Satkhira in Special Tribunal Case No. 150 of 1999 convicting the appellant under Section 19A of the Arms Act, 1878 and sentencing him thereunder to suffer imprisonment for life.
2. The prosecution case, in short, is that in course of conducting special operation duty in the deep forest area of Sundorbon on 19-4-1999 at 4-30 am SI Abdul Malek and his accompanying force challenged one motorized trawler at South Talpatty Borokhal area. The miscreants from above trawler started firing gun shots at the police boat and for self defence police returned fire. During above encounter all the miscreants excepting the appellant fled through the forest. The appellant was apprehended along with a country made gun (†`kxq e›`yK). Besides three cartridges were found in the pocket of underwear of the Appellant.
3. Some country made firearms, cartridges and other articles were found in the abandoned trawler of the miscreants. It turned out that infamous Indian Pirates namely, Girendro Biswas, Omal Biswas, Krishno Biswas, Mono Joyaddar, Nittyo Gain, Probas Gain, Gafur Mondai, Sontosh Mondal, Tapon Mondal, Sonnasi Koyal and Nunu Mondal and others abducted five fishermen from inside Bangladesh for realizing ransom and confined them in the above trawler. Above incrementing materials and abandoned trawler were seized by a seizure-list in presence of witnesses. Stating above facts SI Malek lodged ejahar of this case on 14-4-1999.
4. The investigation of the case was assigned to Mr Mizanur Rahman SI of police, who, on completion of necessary investigation submitted charge-sheet against the appellant under Section 19A and 19(f) of the Arms Act read with Section 26 of the Special Powers Act, 1974. But the investigation officer did not send up for trial accused Girondro Biswas and another 10 alleged Indian pirates mentioned in the body of the FIR.
5. On date the learned Judge of Special Tribunal No.2, Satkhira framed charge on 17-7-2002 against the accused-appellant under Section 19A and 19(f) of the Arms Act, 1878 for alleged recovery of seizure list mentioned arms and cartridges from his control and possession. Above charge was read over to the appellant who claimed to be not guilty and demanded trial.
6. At trial the prosecution examined 7 PWs who were cross-examined by the defense and tendered 3 PWs whose cross-examination was declined by the defence. On completion of prosecution evidence the appellant was examined under Section 342 of the Code of Criminal Procedure, 1898 who reiterated his claim of not guilty and declaimed to adduce any evidence on his behalf.
7. The defence case as it transpires from trend of cross-examination of prosecution witnesses and the statement made by the appellant under Section 342 of the Code of Criminal Procedure is that the appellant is an Indian fisherman and he was kidnapped by the dacoits and kept hostage in the seized trawler. But he was mistakenly made as accused in this case with a country made gun and cartridges abandoned by the dacoits.
8. On consideration of facts and circumstances of the case and evidence on record the learned judge of the Tribunal was pleased to convict the appellant under Section 19A & 19(f) of the Arms Act, 1878 and sentenced him there under to suffer imprisonment for life as mentioned above,
9. Being aggrieved by and dissatisfied with the above judgment and order of conviction and sentence the accused-appellant has preferred this appeal,
10. Mr Sarwar Ahmed, the leaned Advocate appearing on behalf of the accused-appellant submits that the appellant is an Indian national.  He was arrested from the occurrence place and allegedly from his possession is country made gun and three cartridges were recovered. The appellant is in custody in connection of this case from 13-4-1999 and he has already served out more than 19 years. As such the appellant does not oppose or challenge the legality of the conviction inflicted by the learned Judge of the Tribunal, The appellant challenges the legality of sentence of life imprisonment inflicted upon him in this case. Alleged recovery of one country made gun and three cartridges does not justify above sentence. The sentence of life imprisonment is excessive, irrational and disproportionate which may be reduced to 19 years as has already been served out by appellant. Accordingly, the appellant may be released from prison and this appeal may be dismissed with above reduction of sentence, concluded the learned Advocate.
11. On the other hand, Mr Rafi Ahmed, the learned Deputy Attorney General appearing on behalf of the State-respondent submits that the learned Judge of the Tribunal has on proper appreciation of facts and circumstances of the case and evidence on record rightly convicted the appellant and sentenced him as mentioned above Since the impugned judgment does not suffer from any legal infirmity or inconsistency or the same does not suffer from misreading or non-reading of any material evidence the impugned judgment and order of conviction and sentence do not warrant any modification, reduction or interference from this court. As such this appeal is liable to be dismissed.
12. We have heard the submissions of the learned Advocates for both sides and examined and other materials on record.
13. As mentioned above at trail the prosecution has examined 7 PW and tendered 3 to bring home the charge leveled against the appellant. PW I, SI Abdul Malek Khan is the informant and leader of the Special Operation Team who arrested the appellant after an armed encounter with the miscreants. In his examination-in-chief he stated that when they started counter fire the miscreants fled away in the forest. ASI Halim caught hold of appellant Chitta Gain with a country made gun in his hand. Three cartridges were found in the pocket of his underwear. The witness proved the FIR, seizure-list and material exhibits and his signatures on those documents which were marked as Exhibits-1,1(1),2,2(1) and Material Exhibits No.-I, II, III, IV and V respectively. In his cross-examination the witness denied that appellant is a fisherman who was kidnapped and made a hostage by the dacoits and he has falsely implicated the appellant in this case with the gun and cartridges abandoned by the dacoits.
14. PW 2 constable Moyazzem was a member of the Police team who stated in his examination-in-chief that they had an armed encounter with the dacoits on 19-4-1999 morning in the Sundorban area. Appellant was arrested by ASI Halim while other dacoits fled in the jungle. From the appellant gun and cartridges were recovered. In his cross-examination the witnesses stated that he does not know what kind of gun was recovered from the possession of the appellant. He denied that the appellant was a fisherman and he was made a hostage by the dacoits.
15. PW 3 constable Babor Ali, the PW 4 Mahbub  Gazi and the PW 9 Md Mukul Mollah were tendered  by the prosecution whose cross-examination were declined by the defence.
16. PW 5 Nur Mohammad was abducted by the dacoits and subsequently rescued by the Special Operation Police Team. The witness stated in his examination in chief that when he was catching fish in the jungle a band of dacoits bearding a trawler came to him and demanded money. Since he could not pay any money he was abducted by the dacoits. On 19-4-1999 there was an armed encounter between dacoits and police. At one stage Appellant Chitta Gani was apprehended and from his possession three cartridges were recovered. Police also rescued him. In his cross-examination the witness stated that the appellant was arrested by police from the jungle. He does not know whether appellant was a fisherman or not.
17. PW 6 Md Mobarak Gazi is a witness to the seizure-list. In his examination-in-chief the witness stated that one cartridge loaded gun was found in the possession of the appellant. The witness proved his signature on the seizure list which was marked as Exhibits-2/2. In his cross-examination the witness stated that the appellant was apprehended from inside the trawler. He denied that the appellant was a fisherman and he was kidnapped by the dacoits and kept confined in the seized trawler.
18. PW 7 ASI Md Halim Hossen stated in his examination-in-chief that when they challenged a trawler and the miscreants boarding the trawler started firing gun shots. They also shot counter fires. He jumped from the boat and apprehended the appellant with a country made pipe gun. Other accused-persons fled in the jungle abandoning three guns, one shooter gun loaded with a bullet and three rounds of cartridges. Live cartridge was found in the pocket of the appellant. In his cross-examination the witness stated that the appellant said to him that he was a fisherman and he catches fish in the jungle.
19. PW 8 Girendro Chandro Mondal is another witness to the seizure-list. In his examination-in-chief the witness stated that after an armed encounter with the police some people went into the jungle while one person remained seated in the trawler. ASI Halim apprehended one person. Halim also seized the trawler. He gave signature in the seizure list. The witness proved his signature in the seizure list which was marked as Exhibits-2/3. In his cross-examination the witness could not recollect whether the appellant stated that he catches fish in the river and he was made hostage by the dacoits.
20. PW 10 SI Md Mizanur Rahman is the investigating officer of this case. In his cross-examination the witness stated that in the FIR there is no mention of the place of arrest of the appellant.
21. Above is all about the evidence oral and documentary adduced by the prosecution to prove the charge framed under Section 19A 19(f) of the Arms Act against the Appellant.
22. At the very outset it is to be mentioned that in the FIR clear mention has been made that the one country made gun and three cartridges were recovered from the possession of the appellant and remaining three guns, one shooter gun and cartridges were abandoned by alleged Indian pirates, namely, Girendro Biswas, Amol Biswas, Krisho Biswas, Mono Joyardar, Nitto Gain, Probash Gain, Gafur Mondal, Sontosh Mondal, Tapon Mondal, Sonnasi Royal and Nunu Mondal. Full addresses of above persons were provided in the body of the FIR but they were neither made accused in this case nor did the investigator forward them for trial. No explanation at all has been provided by the prosecution in this regard.
23. The seizure-list (Exhibit-2) shows that three countries made gun, one country made shooter gun, one round bullet, three round cartridges, four empty cartridges, one engine driven trawler, five dao and one old underwear with pocket were all seized by above seizure list. It turns out from the charge framed by learned Judge of the Tribunal on 17-7-2000 that instead of describing the offence with all necessary particulars a mere mention has been made that "seizure list mentioned" arms and cartridges were recovered from the possession of the appellant. The relevant portion of the charge is as follows:
" Mwnb my›`ieb eøK bs-55 NUbv¯'‡j Avcbvi `Lj I wbqš¿Y nB‡Z mxRv‡i ewY©Z A¯¿ I ¸wj D×vi nq|Ó
All the guns and cartridges mentioned in the seizure list were not recovered from the possession of the appellant. As such, the charge farmed against the appellant suffers from legal infirmity which has impacted negatively on the defence of the appellant.
24. In order to prove a criminal charge against an accused the prosecution has to prove the manner of the alleged occurrence besides the place, date and time of the same. PW 10 Md Mizanur Rahman who is the investigating officer of this case has stated that the place of arrest of appellant has not been stated in the FIR. PW 1 SI Md Abdul Malek Khan stated that Halim apprehended the appellant from river with a gun in his hand and three cartridges were found in the pocket of his underwear. PW 2 Moazzem could not say what type of gun and how many cartridges were recovered from the possession of the appellant. Nor he could say where from those were found. PW 5 Nur Mohammad stated that the appellant was arrested from inside the forest. This witness does say anything about recovery of gun or cartridge from the possession of the appellant. He could not say who apprehended the appellant. PW 6 Md Mobarak Gazi, a witness to the seizure list, stated that the appellant was apprehended from inside the trawler. Another seizure list witness PW 8 Girendra Nath Mondal has supported PW 6 Md Mobarak Gazi in this regard and stated that the appellant was apprehended from inside the trawler. PW 8 Girendra Nath Mondal did not say anything about the recovery of gun or cartridges from the possession of the appellant. PW 6 Md Mobarak Gazi stated that a cartridge loaded gun was recovered from the appellant. PW 7 Md Halim Hossain, who allegedly apprehended the appellant, stated that he apprehended the appellant along with a country made pipe gun. As far as recovery of cartridges is concerned the witness stated that he found live cartridge in the pocket of the Appellant. The witness neither mentioned the number of cartridges nor did he specify from which pocket he recovered those. It is to be mentioned that a country made gun or (e›`yK) is quite different from a pipe gun and it is the case of the prosecution that a country made gun or (e›`yK) was recovered from the appellant not a pipe gun.
25. It is crystal clear from above evidence that the informant, members of the Police Special Operation Team and the seizure list witnesses have given materially contradictory and different versions as to the place and manner of recovery of gun and cartridges and the type or class of the firearms from the possession of the appellant.
26. It has been stated by the PWs 1, 2, 6 and 7 Halim that all the dacoits except the appellant fled in the forest after armed encounter with the police. It has been proved by mutually supportive evidence of two independent seizure list witnesses, PW 6 Md Mobarak Gazi and PW 8 Girendra Nath Mondol, that the appellant was apprehended from inside the trawler of the miscreants not from the jungle or from the river.
27. It is the defence case that the appellant is a fisherman and he was kidnapped by the dacoits and kept in the trawler but he was mistakenly made as accused in this case with the abandoned arms and cartridges of the dacoits. PW 7 Halim has stated that after being arrested the appellant stated to him that he is a fisherman and he catches fish in the jungle. PW 5 Nur Mohammad was abducted by the miscreants and rescued by Special Operation Team during the occurrence of this case. Above witness did not say that the Appellant was a member of the dacoit party or he saw him among the dacoits with a gun in hand. In his cross-examination he expressed his ignorance as to whether the appellant was a fisherman or not and whether he was catching fish in the jungle. Had the appellant been a member of the, dacoits he would have fled in the jungle together with others. The appellant remained seated in the trawler of the dacoits and after the dacoits had escaped the police arrested him. In view of above facts and evidence the defence version of the case that the appellant is a fisherman who was kidnapped by the miscreants for ransom and detained in the occurrence trawler-appears to be more probable, reasonable and believable.
28. On consideration of above facts and circumstance of the case and evidence on record we are of the view that the prosecution has failed to prove by legal evidence that one country made gun and three cartridges were recovered from the possession of the appellant. The learned Judge of the tribunal has miserably failed to analysis the material evidence on record properly and arrive at an appropriate decision in this case. The impugned judgment suffers from serious legal infirmity and the decision of the leaned Judge is based conjecture and surmise and the impugned judgment suffers from serious legal infirmity which is not tenable in law.
29.    In the result, the appeal is allowed.
30.    The impugned judgment and order of conviction and sentence dated 17-8-2003 passed by the learned Judge, Special Tribunal No.03, Satkhira in Special Tribunal Case No. 150 of 1999 convicting the appellant under Section 19A of the Arms Act, 1878 and sentencing him there under to suffer imprisonment for life is set-aside and Appellant Chitta Gain be acquitted of above charge. Let appellant Chitta Gain be set at liberty at once if not wanted in connection with any other case.

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