D.P.SINGH, J. - (1.) ALL the four appellants have preferred this appeal against the judgment dated 3.2.2001 passed by Shri Mazhar Imam, 7th Additional Sessions Judge, Palamau in Sessions Trial No. 365 of 1996 whereby and whereunder all the appellants have been sentenced to undergo R.I. for three years under Section 379, IPC and further sentenced to undergo R.I. for three years Under Section 414 of the IPC and all the appellants have been further sentenced to undergo R.I. for two years under Section 33 of the Indian Forest Act. All the sentences were ordered to be run concurrently.
(2.) BRIEF facts loading to this appeal are that in the morning of 11.9.1995 Officer -in -Charge, Sadar Police Station, Palamau received a confidential information that some illegal Kattha was being brought from Panki. Accordingly he arranged the raid on Daltonganj -Panki Road along with constables on a Jeep bearing No. BRO 6178 at about 5.40 a.m., and blocked the check/ Naka near Mela River Bridge. Further stated about 6.15 a.m., a Jeep bearing No. BRD 7267 reached there from which he got arrested three persons and searched the Jeep resulting in disclosure of large quantity of Kattha. All the arrested accused persons along with driver of the Jeep informed the police that said Kattha was being smuggled weighing about 120 kg and 170kg. The police arrested all of them and lodged a case Under Section 413, 414 of the Indian Penal Code and Section 33 of the Indian Forest Act. The informant accordingly registered a case, remanded them and handed over the investigation to S.I. Gauri Shankar Jha. The police finally submitted charge sheet against all of them for the offences under Sections 413, 414 of the Indian Penal Code and Section 33 of the Indian Forest Act. The trial of the appellant was initiated in the Court of Shri J.M. Sharma, 7th Additional District Judge, Palamau at Daltonganj who framed charges under Sections 413, 414 and 379/414 of the Indian Penal Code and Section 33 of the Indian Forest Act. The trial Court further found and held them guilty for the offences under Section 379, 414 of the Indian Penal Code and Section 33 of the Indian Forest Act and sentenced them further to serve R.I. for three years, three years and two years on each count. The present appeal has been preferred on the grounds that the learned trial Court has convicted the appellants on mere conjecture and surmises. It is further asserted that in absence of the informant, the entire prosecution case remains unsupported. It is also submitted that the witnesses examined before the trial Court have contradicted the prosecution version altogether. According to this memo of appeal the seizure is said to have been made from a Bus instead of a Jeep but the trial Court believed the prosecution version. It is also assured that in absence of the seized articles being produced before the trial Court, conviction was bad in law. It is also submitted that the offence was triable by the Court of Judicial Magistrate, 1st Class and the Court of Additional District Judge has committed mistake by trying the offences triable by the Court of Judicial Magistrate 1st Class. In support of this contention the learned senior counsel of the appellants Mr. T.R. Bajaj relied upon 2004 SCC (Cri) 2028 in which in absence of the seized narcotic substances, the Honble Apex Court held that the prosecution could not prove the charges against the appellants. Therefore the appellants who were neither arrested with any Kattha nor carrying the said Kattha on a Jeep deserve to be acquitted of the charges. Learned APP opposed this contention.
(3.) I have considered the submissions made before this Court along with the evidence available in the case records. The prosecution has examined altogether 5 witnesses in this case out of which PW 2 Babulal Singh, PW 3 Navalik Singh both constables and PW 4 Pramod Pandey a seizure list witness have been declared hostile by the prosecution because they have admitted that the Kattha was seized from a JPS Bus. They have further admitted that no Kattha was seized from a Jeep in his presence. They have admitted in cross examination that Officer -in -Charge has got this case registered falsely because of rivalry. PW 4 Pramod Pandey has also been declared hostile since he also admitted that the Kattha was seized from a Bus. PW 1 is the IO and PW 2 is the formal witness who has proved the case diary in the writing of IO. Investigating Officer, PW 1 has supported the prosecution version in absence of the informant and proved Ext. 1, 1/1 and 2. Learned Counsel for the appellants relied upon the statements and submitted that the prosecution witnesses are specifically pointing that the Kattha was not recovered from a Jeep but from a Bus, the entire prosecution story stands contradicted. It is further asserted that in view of the non production of the seized Kattha before the trial Court, the story of seizure of Kattha becomes doubtful. In this context, reliance was placed on 2004 SCC (Cri) 2028. It is further submitted that in absence of any positive evidence, the evidence of 10 can not be believed and conviction on the sole testimony of the IO deserves to be set aside;;