Patna High Court
Upendra Yadav @ Barhu Yadav vs The State Of Bihar on 22 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.700 of 2024
Arising Out of PS. Case No.-85 Year-2023 Thana- PALI District- Jehanabad
======================================================
Upendra Yadav @ Barhu Yadav Son of Late Bhana Yadav R/V- Village-
Saidabad Golakhpur, P.S.- Pali, Distt.- Jehanabad
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Umesh Kumar, Advocate
Mr. Abhishek Anand, Advocate
Mr. Roy Birendra, Advocate
Mr. Prashant Kumar, Advocate
For the Respondent/s : Mr. Umeshanand Pandit, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 22-07-2025
The instant revision is directed against the judgment
and order of conviction and sentence dated 09.07.2024 passed in
Criminal Appeal No.11 of 2024 by the learned District &
Sessions Judge, Jehanabad whereby and whereunder the First
Appeallate Court dismissed the appeal and affirmed the
judgment dated 21.03.2024 passed by the learned Judicial
Magistrate, 1st Class, Jehanabad in G.R. No.774/2023, Trial
No.1266/2024, arising out of Pali P.S. Case No.85/2023
convicting the appellant of the offence under Section 25(1-B)a
and 26 of the Arms Act and sentencing him to suffer rigorous
imprisonment of three years for the offence punishable under
Section 25(1-B)a and imprisonment of two years with payment
Patna High Court CR. REV. No.700 of 2024 dt.22-07-2025
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of fine of Rs.10,000/- for the offence punishable under Section
26 of the Arms Act. It was directed that the substantive sentence
of imprisonment shall run concurrent.
2. Prosecution case, in brief, is that one Balvir Kumar
Singh, SHO, Pali Police Station was conducting evening
patrolling duty on 06.07.2013 at about 05:15 p.m. with the
members of the force attached to the police station. At about
5:40 p.m., when they reached near Serthu village, the SHO
received a secret information that one Upendra Yadav @ Barhu
Yadav was carrying illegal fire arms to commit some offence in
or around the government cabin constructed for irrigation on his
land in village-Golakhpur. The SHO passed on the said
information to his senior officers and at about 6:30 p.m. reached
near the said cabin situated on the eastern side of village-
Golakhpur. Seeing the police party, a man started to flee away.
The police party alongwith the Chowkidar of the locality
conducted search inside the cabin and recovered one black
colour loaded country made pistol and a live cartridge of .315
bore from the waist of the person, who was eventually
apprehended. On being asked he disclosed his name as Upendra
Yadav @ Barhu Yadav, police seized the country made pistol
and live cartridges at the spot in presence of Chowkidars and
arrested the accused.
Patna High Court CR. REV. No.700 of 2024 dt.22-07-2025
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3. The S.H.O. Pali Police Station lodged a suo-moto
complaint against the petitioner, on the basis of which Pali
Police Station Case No.85 of 2023 under Section 25(1-B)a/26 of
the Arms Act was registered. Police took-up the case for
investigation and on completion of investigation, charge-sheet
was submitted against the petitioner under the above-mentioned
penal provisions of the Arms Act.
4. The accused/petitioner duly appeared to face trial,
charge was framed against the accused and when it was read
over and explained to him he pleaded not guilty. During trial,
prosecution examined seven witnesses. They are PW-1 Balvir
Kumar Singh (informant), PW-2 Suresh Prasad, PW-3 Chandan
Kumar Shah, PW-4 Bikash Kumar Biswas, PW-5 Manoj Kumar
Prasad, PW-6 Rakesh Kumar and PW-7 Manoj Kumar Ram. All
the witnesses are police personnel, PW-7 is the expert, who
submitted his report regarding the work ability of the fire arm
and live cartridges.
5. On the basis of the evidence on record, both the
Trial Court as well as the Court of Appeal held the accused
guilty for committing offence under Section 25(1-B)a/26 of the
Arms Act and convicted and sentence him accordingly.
6. The learned Advocate on behalf of the petitioner at
the outset submits that the petitioner is in jail custody for about
Patna High Court CR. REV. No.700 of 2024 dt.22-07-2025
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two years.
7. Secondly, the Trial Court did not consider material
contradictions involved in the case and the petitioner was
convicted and sentenced on the basis of contradictory and
inadmissible evidence. In support of his contention, he first
refers to Exhibit-P2, which is the seizure list.
8. It is submitted by the learned Advocate for the
petitioner taking me to paragraph No.3 of the seizure list that the
fire arm and live cartridges were recovered from the land of the
petitioner beside a cabin (xzke&xksy[kiqj] Fkkuk&ikyh] ftyk&tgkukckn
fLFkr vfHk;qDr ds [ksr ds dsfcu ds ikl ls). Thus, it is submitted by the
learned Advocate for the petitioner that according to the seizure
list, fire arm was not seized from the waist of the petitioner.
Therefore, the prosecution story of illegal possession of fire arm
is false and false to the knowledge of the SHO Pali (informant)
as well as the Investigating Officer.
9. Another important contradiction apearing from the
seizure list police recovered one contry made fire arm loaded
with two live cartridges, engraved therein 8mm KF. However,
during trial the witnesses stated that two live cartridges of .315
bore was recovered. The suo-moto FIR was filed by Balvir
Kumar Singh, SHO Pali police station also referred to recovery
of .315 bore cartridges.
Patna High Court CR. REV. No.700 of 2024 dt.22-07-2025
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10. Thus, the prosecution itself was full of
contradiction with regard to the nature of the material and bone
of the live cartridges, which were recovered in connection with
this case.
11. If the seizure list is believed fire arm and
ammunitions were not recovered from the waist of the accused/
petitioner, those were recovered from a place beside the cabin.
There is absolutely no evidence that the place from where the
fire arm and cartridges were allegedly recovered, were under
exclusive possession of the petitioner.
12. Thirdly, the informant stated in his evidence that
seeing the police party, the accused fled away, there is
absolutely no evidence, when and where the accused was
apprehended. This, castes a doubt as to whether the accused was
actually apprehended or not.
13. An offence under Section 25 and 26 of the Arms
Act relate to illegal possession of fire arm. Therefore,
prosecution is under primary obligation to prove that the fire
arm and cartridges were recovered either from actual or
constructive possession of the petitioner.
14. This Court has already narrated the circumstances
that may lead to the Court to hold that the prosecution case does
Patna High Court CR. REV. No.700 of 2024 dt.22-07-2025
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not stand on a true foundation.
15. This Court is perfectly aware that examination and
appreciation of evidence is generally not permissible while
exercising revisional jurisdiction unless the appreciation of
evidence is absolutely perverse.
16. In the instant case, perversity of appreciation of
evidence is manifest when both the Courts below did not
consider the evidence of PW-1 and PW-4 to the effect that they
recovered two live cartridges of .315 bore. The arms expert, on
the contrary certified that the live cartridges were of 8mm KF. It
is not believable or desirable that the police officers did not
know the difference between the cartridges, specially when the
police administration uses cartridges of .315 bore. Thus, there
remains discripency as to the nature and neck of cartridges
which were allegedly recovered by police.
17. In view of what has been stated above, this Court
is not in a position to hold that prosecution was able to bring
home the charge against the accused/petitioner under Section
25(1-B)a/26 of the Arms Act. Both the Courts below failed to
appreciate the evidence adduced by the witnesses on behalf of
the prosecution during Trial and in course of appeal.
18. Therefore, this Court is not in a position to concur
with the order of affirmation of conviction and sentence passed
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against the petitioner/accused. The instant revision is
accordingly allowed on contest. There shall be however no
order as to cost.
19. The accused/petitioner be acquitted of the charge,
set at liberty and released from his bail bond at once.
20. Let a plain copy of this order be handed over to
the learned Advocate for the petitioner free of cost at once.
21. The Trial Court is directed to act on the basis of
the plain copy of the order passed in the instant revision.
22. The seized material be destroyed after the expiry
of the period of limitation for Special Leave to Appeal.
23. The Lower Court Records be returned.
(Bibek Chaudhuri, J)
mdrashid/-
AFR/NAFR CAV DATE 14.07.2025 Uploading Date 22.07.2025 Transmission Date 22.07.2025
