BALESHWAR GANJHU AND ANR vs THE STATE OF JHARKHAND
- Court
- Jharkhand High Court
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1158 of 2008
[ Against the judgment and order of conviction and sentence dated
26.07.2008 & 29.07.2008 respectively, passed by learned Additional
Sessions Judge, F.T.C.-II, Latehar in S.T. No. 53 of 2007 ]
--------
Santosh Lohra, son of Basant Lohra, resident of Village-Hutap, P.S.-
Chandwa, District-Latehar
... ... Appellant
Versus
The State of Jharkhand … … Respondent
With
Cr. Appeal (SJ) No. 26 of 2013
[ Against the judgment and order of conviction and sentence dated
11.12.2012 & 12.12.2012 respectively, passed by learned District &
st
Additional Sessions Judge, 1 , Latehar in S.T. No.53 (B) of 2007 ]
--------
1. Baleshwar Ganjhu, son of Budhan Ganjhu, resident of Village-
Amjharia, P.O.-Hutap, P.S.-Chandwa, District-Latehar
2. Akalu Ganjhu, son of Lalku Ganjhu, resident of Village-Basdia, P.O.-
Hutap, P.S.-Chandwa, District-Latehar
... ... Appellants
Versus
The State of Jharkhand … … Respondent
-----
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant(s) : Mr. Jitendra S. Singh, Sr. Advocate
Ms. Shabina Parween, Advocate
Ms. Sumitra Kumari, Advocate
Ms. Sanskriti Shahini, Advocate
For the State : Mrs. Nehala Sharmin, Spl.P.P.
[ Cr. Appeal (SJ) No. 1158 of 2008]
Mr. Prabhu Dayal Agrawal, A.P.P.
[ Cr. Appeal (SJ) No. 26 of 2013]
--------
JUDGMENT
C.A.V. on 20.07.2026 Pronounced on 31/08/2026
1. I have already heard the arguments of Mr. Jitendra S. Singh
learned senior counsel for the appellants and Mrs. Nehala Sharmin
learned Spl.P.P. for the State.
2. Criminal appeal (SJ) No. 1158 of 2008 is directed against the
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judgment and order of conviction and sentence dated 26.07.2008 &
29.07.2008 respectively, passed by learned Additional Sessions Judge,
F.T.C.-II, Latehar in S.T. No. 53 of 2007, whereby and whereunder the
appellant, Santosh Lohra has been held guilty for the offences under
Sections 402 of the I.P.C. and 25(1-B)a & 26(1) of the Arms Act and
sentenced to undergo R.I. for 5 years along with fine of Rs.2000/- with
default stipulation for the offence under Section 402 of the I.P.C.; R.I.
for 3 years along with fine of Rs.1000/- with default stipulation for the
offence under Section 25(1-B)a of the Arms Act and R.I. for 2 years
along with fine of Rs.2000/- with default stipulation for the offence
under Section 26(1) of the Arms Act. All the sentences were directed to
run concurrently.
3. Criminal appeal (SJ) No. 26 of 2013 is directed against the
judgment and order of conviction and sentence dated 11.12.2012 &
12.12.2012 respectively, passed by learned District & Additional
st
Sessions Judge, 1 , Latehar in S.T. No.53 (B) of 2007, whereby and
whereunder the appellant No.1, namely Baleshwar Ganjhu has been
held guilty for the offences under Sections 25(1-B)a of the Arms Act
and sentenced to undergo R.I. for 2 years along with fine of Rs.2000/-
with default stipulation and appellant No.2, namely Akalu Ganjhu has
been held guilty for the offence under Section 25(1-B)a/35 of the Arms
Act and sentenced to undergo R.I. for 2 years along with fine of
Rs.2000/- with default stipulation.
4. Since both the appeals arise out of the same P.S. Case, i.e,
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Chandwa P.S. Case No. 106 of 2006, therefore, both the appeals are
being heard and decided together.
Factual Matrix
5. Factual matrix giving rise to these appeals as per the self-
statement of the informant, S.I. Awadh Kr. Yadav (P.W.-3), Officer-in-
charge, Chandwa P.S., is that on 03.09.2006 at about 06:00 P.M., he
along with S.I. K.K. Mahto, S.I. Shyam Singh Roy, Constable Ajay
Kumar, Constable Permeshwar Thakur, Constable Mithilesh Kr.
(P.W.-4), Constable Dennial Tigga (P.W.-7), Constable Chandra
Bhushan Pandey, Hawaldar Puran Uraon (P.W.-9), Constable
Raghunath Minz (P.W.-5), Constable Shasi Bhagat, Constable
Bishwanath Kujur (P.W.-8), and Constable Lal Bahadur Singh (P.W.-6)
proceeded to conduct a raid to apprehend the suspected accused
persons in connection with Chandwa P.S. Case No. 103/06 dated
27.08.2006. In the course of the raid, the informant received secret
information that some miscreants have gathered near Amjharia Dak
Bungalow and were planning to commit some crime. Upon receiving
such information, he along with the police party, proceeded towards the
said place. The police party reached there at about 07:30 P.M. and on
seeing the police party, the miscreants began to flee towards the forest.
The informant asked the police personnel to chase and apprehend them,
whereupon six miscreants were apprehended, who disclosed their
names as Santosh Lohra, Sitkam Singh, Baleshwar Ganjhu, Akalu
Ganjhu, Chhotu Ganjhu, and Mahesh Ganjhu. They were searched in
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the presence of two independent witnesses, namely, Sukh Narayan
Singh (P.W.-1) and Vijoi Singh (P.W.-2). During the course of the
search, one country-made pistol loaded with a cartridge and one Nokia
mobile phone bearing Mobile No. 9431119521 were recovered from
the possession of Santosh Lohra; one single-barrel muzzle-loading gun
was recovered from the possession of Baleshwar Ganjhu; one knife was
recovered from the possession of Chhotu Ganjhu; and one Farsa and
one Motorola mobile phone were recovered from the possession of
Mahesh Ganjhu. The accused persons failed to produce any document
in respect of the recovered articles. Consequently, the illegal arms and
other articles were seized in the presence of the two independent
witnesses by preparing seizure lists. The signatures of the independent
witnesses were obtained thereon and a copy of each seizure list was
served upon the respective accused persons. It is alleged that the
accused persons had assembled with the intention to commit robbers
with passengers travelling by vehicles passing through Amjharia Ghati
and were variously armed with illegal weapons. It is further alleged that
they were in possession of looted articles. Hence, the case was
instituted.
On the basis of above self-statement, Chandwa P.S. Case No. 106
of 2006 dated 04.09.2006 was registered for the offences under
Sections 399, 402 & 414 of the I.P.C. and 25 (1-B)a, 26/35 of the Arms
Act against the accused persons.
6. After completion of investigation, charge-sheet was submitted
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against the accused persons for the offences under Sections 399, 402
and 414 of the I.P.C. and 25 (1-B)a, 26/35 of the Arms Act. The case
was committed to the Court of Sessions, where S.T. No. 53 of 2007 and
S.T. No.53 (B) of 2007 were registered. The accused persons denied
from the charges leveled against them and claimed to be tried.
7. In the course of trial, altogether 12 witnesses were examined by
prosecution:-
(i) P.W.-1-Sukh Narayan Singh
(ii) P.W.-2-Vijay Singh
(iii) P.W.-3-Awadh Kumar Yadav (Informant)
(iv) P.W.-4-Constable Mithilesh Kumar
(v) P.W.-5-Raghunath Minz
(vi) P.W.-6- Constable Lal Bahadur Singh
(vii) P.W.-7-Constable Dennial Tigga
(viii) P.W.-8-Constable Vishwanath Kujur
(ix) P.W.-9-Hawaldar Puran Uraon
(x) P.W.-10-A.S.I., Girja Prasad Singh
(xi) P.W.-11-Rajendra Kumar Choudhary
(xii) P.W.-12-Lalan Kumar
Apart from oral testimony of witnesses several documentary
evidence as well as material exhibits have also been adduced by the
prosecution.
8. On the other hand, no oral or documentary evidence has been
adduced by defence.
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9. The case of defence is denial from occurrence and false
implication.
10. The learned Trial Court after considering the evidence of
prosecution arrived at definite conclusion about guilt of the appellants
for the offences charged against them and convicted and sentenced
them as stated above, which has been assailed in these appeals.
Submissions on behalf of the Appellants: -
11. Assailing the impugned judgment, the learned senior counsel for
the appellants has submitted that the impugned judgment is legally
untenable and contrary to the materials on record. The learned trial
court has failed to properly appreciate the material contradictions and
discrepancies appearing in the testimonies of the prosecution witnesses,
which render their evidence unreliable, particularly when the said
witnesses are police personnel and highly interested in the outcome of
the case, thereby making the possibility of false implication. It is
further submitted that the independent witness to the alleged seizure
has not supported the prosecution case, which creates serious doubt
upon the alleged seizure and the prosecution version as a whole. The
learned trial court also erred in convicting the appellants under Section
402 of the I.P.C., despite the prosecution having failed to establish the
essential ingredients of the said offence by cogent, reliable and
unimpeachable evidence beyond reasonable doubt. In the absence of
credible evidence, the appellants were entitled to the benefit of doubt,
and therefore the impugned judgment of conviction and order of
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sentence deserve to be set aside and the appellants be acquitted of the
charges. These appeals may be allowed.
Submissions on behalf of the State: -
12. On the other hand, learned counsel for the State has opposed the
aforesaid contentions raised on behalf of appellants and submitted that
the learned Trial Court has rightly convicted the appellants on the basis
of material available on record, therefore, there is no illegality or
infirmity in the impugned judgment of conviction and sentence of the
appellants and no merits in these appeals which is fit to be dismissed.
13. I have gone through the record of the case along with the
impugned judgments in the light of contentions raised on behalf of both
side.
14. The only point for determination in these appeals is “as to
whether the impugned judgment and order of conviction and
sentence of the appellants suffers from any serious error of law
calling for any interference in these appeals?”
Analysis, discussions and reasons:-
15. Before imparting my verdict on above point, it is desirable to
take brief resume of ocular testimony of witnesses examined in this
case.
P.W.-1-Sukh Narayan Singh has deposed that on 03.09.2006,
the police apprehended six culprits in Amjharia Ghati and they were
searched in his presence and in the presence of Vijay Singh. During the
search a country made pistol loaded with a cartridge was recovered
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from the left waist of Santosh Lohra and a Nokia mobile set bearing
No. 9431119501 was recovered from his right pocket . From the
possession of Baleshwar one single barrel muzzle loading gun was
recovered ; from the waist of Chhotu Ganjhu one Gupti was recovered
and from the hand of Mahesh Ganjhu, one Farsa and a Motorola set
were recovered. The said articles were seized by the police by
preparing seizure list. He had put signature on the said seizure lists
which were marked as Exhibit-1 and Exhibit-1/1 .
In his cross-examination, he has stated that nothing was
recovered in before him and nothing was written before him. The police
called him and asked to sign, whereupon he signed on both the seizure
lists. He has further stated that he had signed on a blank paper and he
does not know anything about the case.
P.W.-2-Vijay Singh has stated that he was not aware of the arrest
of six criminals by the police at Amjharia Ghati on 03.09.2006 and also
not aware of any recovery. However, he admitted that the recovered
articles were seized by preparing two seizure lists, on where he had put
his L.T.I. He has identified his L.T.I. on the said documents. However,
he has stated that the police did not record his statement. This witness
was declared hostile as he contradicted to his previous version given
before the police. He has claimed that he knows the accused persons,
but denied that he has connived with them and had falsely deposed in
this case.
P.W.-3-S.I., Awadh Kumar Yadav is the informant of this case.
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He has stated that on 03.09.2006, he was posted as Officer-in-charge,
Chandwa Police Station. On that day, at about 6.00 p.m., he along with
S.I. K.K. Mahto, A.S.I. Shyam Singh Roy and armed police personnel
of police station and reserved guard proceeding to conduct raid for
apprehending accused persons involved in other cases. In the course of
raid, he had received secret information that some miscreants have
gathered at Amjharia Dak Banglow with intention to commit a crime.
On receiving this information, he along with the police officers and
police force reached there at about 7.30 P.M. On seeing the police party
approaching Amjharia Dak Banglow, the miscreants began to flee.
They were chased and six miscreants were apprehended, who disclosed
their names as Santosh Lohra, Sitkam Singh, Baleshwar Ganjhu,
Chhotu Ganjhu, Akalu Ganjhu and Mahesh Singh. They were searched
in the presence of two independent witnesses, namely Sukh Narayan
Singh and Vijay Singh. During the search one loaded pistol and a
Nokia mobile set were recovered from the possession of Santosh
Lohra ; one single barrel muzzle loading gun was recovered from
the possession of Baleshwar Ganjhu ; one Gupti was recovered from
the possession of Chhotu Ganjhu and one Farsa and a Motorola mobile
set were recovered from the possession of Mahesh Ganjhu. The
recovered arms and other articles were seized by preparing seizure lists
as the accused persons failed to produce any documents relating to the
said articles. A copy of seizure list was handed over to the accused
persons. Thereafter, written report was prepared on his direction by S.I.
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K.K. Mahto, on which he put his signature. The written report marked
as Exhibit-2 . He has further deposed that the I.O. of this case was
Shayam Singh Roy, who had since died. He has further proved
endorsement on the written report in his writing and signature which is
marked as Exhibit-3 . The formal F.I.R. which is marked as Exhibit-4 .
The seizure list relating to the recovery from Santosh Lohra and
Baleshwar Ganjhu which is marked as Exhibit-5 and another seizure
list relating to recovery from the possession of all the accused persons
which is marked as Exhibit-5/1 . He has further deposed that
confessional statement of Santosh Lohra was recorded by A.S.I. M.
Khan and was signed by him. The same is marked as Exhibit-7 with
objection.
P.W.-4, Constable Mithilesh Kumar is an eye witness to the
occurrence. He has corroborated the version of the informant deposing
that on 03.09.2006, he was posted at Chandwa P.S. On that day, he
along with other armed police personnel and Officer-in-charge of
Chandwa P.S. Awadh Kumar Yadav, went on a raid. In the course of the
raid, the Officer–in-charge received information that some suspected
miscreants were staying near Amjharia Dak Bungalow and were
planning to commit a crime. Thereupon, they proceeded towards
Amjharia Dak Banglow. On seeing the police party, the miscreants
began to flee. They were chased and six miscreants were apprehended,
who disclosed their names as Santosh Lohra, Sitkam Singh, Baleshwar
Ganjhu, Chhotu Ganjhu Mahesh Ganjhu and Akalu Ganjhu. They were
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searched by the Officer-in-charge, during which one loaded country
made pistol and a mobile set were recovered from the possession of
Santosh Lohra ; one muzzle loading gun was recovered from the
possession of Baleshwar Ganjhu ; one Farsa was recovered from the
possession of Mahesh Ganjhu and one Gupti was recovered from the
possession of Chhotu Ganjhu. The recovered articles were seized by
preparing seizure lists and the accused persons were arrested.
P.W.-5, Constable Raghunath Minz has stated that on
03.09.2006 while he was posted at Chandwa P.S., he along with the
Officer-in-charge Awadh Kumar Yadav and other armed police
personnel went for patrolling and raid. In that course of the raid, the
Officer-in-charge received secret information that some robbers are
staying in Amjharia Dak Banglow. On receiving this information, they
proceeded there. On seeing the police party, the miscreants began to
flee. They were chased and six of them were apprehended. They
disclosed their names as Santosh Lohra, Baleshwar Ganjhu, Chhotu
Ganjhu and some others. All the six miscreants were searched by the
Officer-in-charge. During the search one country made pistol loaded
with a cartridge and a mobile set were recovered from the
possession of Santosh Lohra; one muzzle loading gun was
recovered from the possession of Baleshwar Ganjhu , one Farsa was
recovered from the possession of Chhotu Ganjhu and one Gupti was
recovered from the possession of Mahesh Ganjhu. All the recovered
articles were seized by the Officer-in-charge by preparing seizure lists
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and the miscreants were arrested.
P.W.-6, Constable Lal Bahadur Singh has deposed that on
03.09.2006, he was posted at Chandwa P.S. On that day, he along with
Officer-in-charge, Awadh Kumar Yadav went on a raid to arrest some
suspects. In that course Officer-in-charge received secret information
that some thieves had gathered at Amjharia Dak Banglow. On receiving
this information, they proceeded towards Amjharia Dak Banglow. On
seeing the police party, the miscreants began to flee. Six of them were
apprehended. The apprehended miscreants disclosed their names as
Santosh Lohra, Baleshwar Ganjhu, Chhotu Ganjhu, Akalu Ganjhu,
Sitkal Singh and Mahesh Singh. They were searched by Officer-in-
charge and in that search one loaded country made pistol and a
mobile set were recovered from the possession of Santosh Lohra;
one muzzle loading gun was recovered from the possession of
Baleshwar Ganjhu; one Gupti was recovered from the possession of
Chhotu Ganjhu and one Farsa and a Motorola mobile set were
recovered from the possession of Mahesh Ganjhu. The recovered
articles were seized by preparing seizure list and the accused persons
were arrested.
P.W.-7, Constable Dennial Tigga has deposed that on
03.09.2006, while posted at Chandwa P.S., he along with Officer-in-
charge and other armed police personnel, went on a raid and arrested
the suspected accused persons. In the course of raid, the Officer-in-
charge received information that some miscreants were present at
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Amjharia Ghati near Dak Bungalow. Thereupon, they proceeded there.
On their arrival, the miscreants began to flee. They were chased and six
miscreants were apprehended. They disclosed their names as Santosh
Lohra, Baleshwar Ganjhu, Chhotu Ganjhu, Sitkan Singh, Mahesh
Ganjhu and one other person. They were searched by the Officer-in-
charge. During the search, one loaded country made pistol and a
mobile set were recovered from the possession of Santosh Lohra;
one muzzle loading gun was recovered from the possession of
Baleshwar Ganjhu; one Gupti was recovered from the possession of
Chhotu Ganjhu and one Farsa was recovered from the possession of
Mahesh Ganjhu. All the recovered articles were seized by the Officer-
in-charge and the accused persons were arrested.
P.W.-8, Constable Vishwanath Kujur has deposed that on
03.09.2006, while posted at Chandwa P.S., he went in patrolling along
with Officer-in-charge and other armed police personnel. In course of
patrolling, the Officer-in-charge received information that some
miscreants had gathered near Amjharia Dak Banglow. Thereupon they
proceeded there. On seeing the police party, the miscreants began to
flee. They were chased and six of them were apprehended. They
disclosed their names as Santosh Lohra, Baleshwar Ganjhu, Chhotu
Ganjhu, Mahesh Singh and Sitkam Singh along with one other person.
The Officer-in-charge searched them and in that search one loaded
country made pistol and a mobile set were recovered from the
possession of Santosh Lohra; one Gupti was recovered from the
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possession of Chhotu Gangjhu and one Farsa and a mobile set were
recovered from the possession of Mahesh Ganjhu. The said articles
were seized by the Officer-in-charge by preparing seizure list. He
further deposed that he has made statement before the police that one
muzzle loading gun had also been recovered from the possession of
Baleswar Ganjhu .
P.W.-9, Hawaldar Puran Uraon has deposed that on
03.09.2006, he was posted at Chandwa P.S. On that day, he along with
Officer-in-charge Awadh Kumar Yadav and other members of armed
forces went on a raid. In the course of raid, Officer-in-charge received
secret information that some miscreants had gathered in Amjharia Ghati
with the intention of committing a crime . On receiving this
information, they proceeded towards Amjharia Ghati Dak Banglow. On
seeing the police party, the miscreants began to flee. They were chased
and six of them were apprehended. They disclosed their names as
Santosh Lohra, Sitkam Singh, Baleshwar Ganjhu, Akalu Ganjhu,
Chhotu Ganjhu and Mahesh Ganjhu. All of them were searched and in
that course one loaded country made pistol and a mobile set were
recovered from the possession of Santosh Lohra; one muzzle
loading gun was recovered from the possession of Baleshwar
Ganjhu; one Gupti was recovered from the possession of Chhotu
Ganjhu and one Farsa and a mobile set were recovered from the
possession of Mahesh Ganjhu. The said articles were seized by
preparing seizure list.
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P.W.10, A.S.I., Girja Pd. Singh is a formal witness. He has
produced material exhibits of this case before the Court. He has proved
the requisition in the writing and signature of Officer-in-charge,
Chandwa P.S., Doman Rajak, which is marked as Exhibit-8 and
challan relating to the material exhibits in the writing and signature of
the said Officer-in-charge, which is marked as Exhibit-9 . He has
further deposed that he has produced the material exhibits in the same
condition in which they had been handed over to him by In-charge of
Malkhana-cum-Officer-in-charge of Chandwa P.S. One country made
pistol bearing P.S. no.106/06 and Malkhana Register No.27/06, which
is marked as Material Exhibit-I , one cartridge of .315 bore bearing
P.S. number and the signature of Officer-in-charge on a sticker as
Material Exhibit-II . One country made muzzle loading gun bearing
Malkhana Register number and P.S. number and also bearing signature
of police officer and the C.J.M., Latehar which is marked as Material
Exhibit-III . A silver-coloured Nokia mobile set bearing P.S. number
and signature of police officer and the C.J.M. Latehar, on a sticker,
which is marked as Material Exhibit-IV . One Gupti bearing P.S.
number and signature of police officer and the C.J.M., Latehar, on a
sticker, which is marked as Material Exhibit-V . One Farsa bearing a
torn sticker, which is marked as Material Exhibit-VI . Further, one
black-coloured Motorola mobile set bearing P.S. number and signatures
of police officer and the C.J.M., Latehar on a sticker, which is marked
as Material Exhibit-VII .
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P.W.-11, Rajendra Kr. Chaudhary is Sergeant Major. He has
examined the arms and ammunitions and submitted his report. He has
deposed that on 14.09.2006, while posted at Palamau, he had received
material exhibits of Chandwa P.S. case no.106/06 dated 04.09.2006 for
examination. He has examined one single barrel muzzle loading gun,
one country made pistol and one cartridge of .303 bore. He found that
single barrel muzzle loading gun had been illegally manufactured. Its
barrel was 82.5 c.m. in length and its body was 42 c.m. in length and
the length from nozzle to butt was 124 c.m. Its trigger and other parts
were in working condition and it could cause harm to the life and
property. He has further deposed that he examined one illegally
manufactured country made pistol. Its length 15.5 c.m., length of its
body was 7 c.m., length of its butt 8.5 c.m. and length from the nozel to
butt 25 c.m. Its trigger, spring and other parts were in working
condition and it could cause harm to life and property. He has also
examined one cartridge of .303 bore and found that it could be fired
through a pistol of .303 bore and could cause harm. He has prepared
examination report, which is marked as Exhibit-10 .
P.W.-12, Lalan Kumar is a formal witness posted in Legal Cell
Collectorate, Latehar. He has deposed that prosecution report of
Chandwa P.S. case No.106/06 dated 04.09.2006 under Sections 399,
402, 414 I.P.C. and 25 (1-B)a, 26/35 Arms Act was typed by Nagendra
Kumar of Legal Cell, Collectorate, Latehar. The said report bears the
signature of M. Ranjan, D.M.-cum-D.C., Latehar and which is marked
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as Exhibit-11 .
16. Before examining the evidence on the charge under Section 402
of the I.P.C., it would be apposite to notice the statutory provision
itself. Section 402 I.P.C. provides as under:-
“402. Assembling for purpose of committing dacoity.—
Whoever, at any time after the passing of this Act, shall be one of
five or more persons assembled for the purpose of committing
dacoity, shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to
fine.”
17. At the outset, so far as the conviction of Santosh Lohra under
Section 402 of the I.P.C. is concerned, it is required to be examined
whether the prosecution has established beyond reasonable doubt that
the alleged assembly was for the purpose of committing dacoity. Mere
presence of five or more persons at a particular place, even when some
weapons are allegedly recovered from some of them, by itself would
not be sufficient to establish the essential requirement of Section 402
I.P.C.
18. In the present case, although the prosecution witnesses have
stated that the accused persons had assembled near Amjharia Dak
Bungalow and that they attempted to flee on seeing the police party,
there is no cogent evidence demonstrating any specific preparation or
overt act on their part towards committing dacoity. The allegation that
they intended to loot passengers travelling through Amjharia Ghati
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remains substantially an assertion of the prosecution without any
independent or convincing corroborative circumstance. No looted
article has been proved to have been recovered from the appellants in
the present case, nor has any material been brought on record
connecting the alleged assembly with any particular proposed act of
dacoity.
19. The evidence of P.W.1 and P.W.-2, the alleged independent
witnesses also does not lend support to the prosecution case with regard
to the alleged purpose of the assembly. Though they have admitted
their signature/L.T.I. on the seizure lists, but has not supported the
prosecution version regarding the occurrence and P.W.-2 was
consequently declared hostile. His evidence cannot be treated as wholly
effaced from the record, but it also does not provide any corroboration
to the prosecution regarding the essential ingredient of Section 402
IPC. Thus, even if the evidence of the police witnesses regarding
apprehension of the accused is accepted, the same does not establish
beyond reasonable doubt that they had assembled for the purpose of
committing dacoity.
20. In such circumstances, the conviction of appellant, Santosh
Lohra (in Cr. Appeal (SJ) No. 1158 of 2008) under Section 402 I.P.C.
cannot be sustained and he is entitled to the benefit of doubt.
21. The conviction of Santosh Lohra under Section 26(1) of the
Arms Act also requires separate consideration in the light of the
statutory ingredients of the said provision. The prosecution has
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undoubtedly led evidence regarding recovery of a country-made pistol
loaded with a cartridge from his possession. However, the mere factum
of recovery of a firearm during a police search, by itself, would not be
sufficient to sustain a conviction under Section 26(1) of the Arms Act
unless the prosecution establishes the specific ingredients constituting
the offence under that provision. In the present case, the evidence does
not satisfactorily establish the requisite element of secret contravention
or other circumstances contemplated under Section 26(1) of the Arms
Act. Therefore, the conviction of Santosh Lohra under Section 26(1) of
the Arms Act also cannot be sustained.
22. However, with regard to the conviction of Santosh Lohra under
Section 25(1-B)(a) of the Arms Act stands on a different footing. P.W.-
1, the seizure witness, has specifically deposed that a country-made
pistol loaded with a cartridge was recovered from the left waist of
Santosh Lohra but in his cross-examination, he has denied the search in
his presence. The evidence of P.W.-3, the informant and P.Ws.-4 to 9,
who were members of the raiding party, is substantially consistent
regarding the recovery of the said firearm from the possession of
Santosh Lohra. Though P.W.-2 has not fully supported the prosecution
case, his hostility by itself does not render otherwise consistent
evidence of the remaining witnesses unreliable.
23. The recovery evidence receives further corroboration from the
testimony of P.W.-11, Sergeant Major, who examined the seized
country-made pistol and found the same to be illegally manufactured
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and in working condition. He also examined the cartridge and opined
regarding its capability of being fired through the relevant firearm and
its potential to cause harm. His examination report has been duly
exhibited as Exhibit-10. Thus, the oral evidence regarding recovery is
materially corroborated by the technical evidence regarding the nature
and working condition of the seized firearm. The prosecution has,
therefore, succeeded in establishing the charge under Section 25(1-
B)(a) of the Arms Act against Santosh Lohra beyond reasonable doubt.
24. Similarly, with regard to appellant, Baleshwar Ganjhu (in Cr.
Appeal (SJ) No. 26 of 2013) , there is consistent evidence from P.W.-1
and P.Ws.-3 to 7 and P.W.-9 regarding recovery of a single-barrel
muzzle-loading gun from his possession. Although there is some
omission in the testimony of P.W.-8 regarding the recovery, the said
witness subsequently stated that he had made a statement before the
police regarding recovery of the muzzle-loading gun from Baleshwar
Ganjhu. Such omission or discrepancy, particularly when viewed
against the consistent evidence of the other witnesses, does not go to
the root of the prosecution case.
25. The evidence regarding recovery from Baleshwar Ganjhu is
further supported by P.W.-11, who examined the said firearm and
found it to have been illegally manufactured. He further found its
trigger and other parts to be in working condition and opined that it was
capable of causing harm to life and property. The technical evidence
thus corroborates the prosecution version regarding the nature of the
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recovered firearm. On a cumulative assessment of the evidence, this
Court finds that the prosecution has proved beyond reasonable doubt
that the illegally manufactured and functional firearm was recovered
from the possession of Baleshwar Ganjhu. His conviction under
Section 25(1-B)(a) of the Arms Act, therefore, calls for no interference.
26. So far as appellant, Akalu Ganjhu (in Cr. Appeal (SJ) No. 26
of 2013) is concerned, the evidence stands on an entirely different
footing. Admittedly, no firearm or ammunition was recovered from his
possession. There is also no cogent evidence on record to establish that
he had conscious or joint possession of any firearm recovered from
another accused. The prosecution has not brought on record any
circumstance demonstrating that Akalu Ganjhu exercised control or
dominion over the firearm allegedly recovered from another accused or
that he had knowledge of such possession.
27. The mere fact that Akalu Ganjhu was apprehended along with
the other accused persons was present in their company cannot, in the
absence of further incriminating evidence, by itself establish conscious
possession of a firearm so as to attract the aid of Section 35 of the Arms
Act. The criminal liability cannot be fastened upon an accused merely
on the basis of his presence with other persons from whom
incriminating articles are recovered, unless the prosecution establishes
the necessary factual foundation for attributing possession or
knowledge to such accused.
28. Consequently, this Court finds that the prosecution has failed to
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establish the charge under Section 25(1-B)(a)/35 of the Arms Act
against Akalu Ganjhu beyond reasonable doubt. He is, therefore,
entitled to the benefit of doubt and his conviction and sentence under
the said provision are liable to be set aside.
29. In view of above discussion and reasons, this Court arrives at the
conclusion that the prosecution has succeeded in proving the charge
under Section 25(1-B)(a) of the Arms Act against Santosh Lohra and
Baleshwar Ganjhu, but has failed to establish the charges under Section
402 I.P.C. and Section 26(1) of the Arms Act against Santosh Lohra
and the charge under Section 25(1-B)(a)/35 of the Arms Act against
Akalu Ganjhu.
30. Accordingly, the conviction of appellant, Santosh Lohra (in Cr.
Appeal (SJ) No. 1158 of 2008) under Sections 402 I.P.C. and 26(1) of
the Arms Act is set aside, while his conviction under Section 25(1-
B)(a) of the Arms Act is affirmed.
31. The conviction of appellant, Baleshwar Ganjhu (in Cr. Appeal
(SJ) No. 26 of 2013) under Section 25(1-B)(a) of the Arms Act is
affirmed.
32. The conviction and sentence of appellant, Akalu Ganjhu (in Cr.
Appeal (SJ) No. 26 of 2013) under Section 25(1-B)(a)/35 of the Arms
Act is set aside and he is acquitted of the said charges by extending to
him the benefit of doubt. Appeal of Akalu Ganjhu is allowed .
33. So far as the sentence of the appellants, namely Santosh Lohra
and Baleshwar Ganjhu is concerned, it appears that the occurrence is
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of the year 2006 and since then, about two decades have elapsed and
the appellants have suffered long agony of the trial and the appellant,
Santosh Lohra has remained in custody for more than two years and
one month out of three years sentence as awarded to him by learned
Trial Court and the appellant, Baleshwar Ganjhu has remained in
custody for about ten months out of two years sentence as awarded to
him by the learned Trial Court, therefore, no useful purpose would be
served by sending the appellants again in jail for sustaining the rest of
the imprisonment. Hence, it appears expedient, in the ends of justice to
modify/alter the sentence of the appellants. Accordingly, the sentence
of the appellants, namely Santosh Lohra and Baleshwar Ganjhu is
modified to the extent of period already undergone by them.
34. Consequently, these appeals are partly allowed with
modification in conviction and sentence .
35. Both the appellants are on bail, as such they are discharged from
the liability of bail bonds and sureties are also discharged.
36. Pending I.A(s), if any, stands disposed of.
37. Let a copy of this judgment along with Trial Court Record be
sent back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court
Dated 31/08/2026
Arpit/ N. A. F. R.
Uploaded on 01/09/2026
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