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1999 DIGILAW 440 (PAT)

Pradip Mahto v. State Of Bihar

1999-05-19

NARAYAN ROY

body1999
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. Both these revision applications arise out of the common judgment and order of conviction and sentence passed against the petitioners and, therefore, they have been heard together and are being disposed of by common judgment. 3. The petitioners of these revision applications have been convicted under Sections 25-A and 26 of the Arms Act and sentenced to undergo rigorous imprisonment for one and two years, respectively. In appeal, the judgment and order of conviction and sentence has been maintained. 4. It appears that in the night of 4/5.1.1983 when the Informant PW 1 along with the Police personnel was going to conduct a raid in course of investigation of some other cases, he got a confidential information that some dacoits armed with lethel weapons including the fire-arms have assembled West of Bhutnath temple north to the river Gandak in the district of Samastipur and on the said information, the Police Party went there and apprehended ten persons including the petitioners. It is alleged that a 303 live cartridge which was used in the rifle was recovered from the waist of the petitioner Pradip Mahto whereas a country made pistol in which rifle cartridge is used was recovered from beneath the Sweater and Shirt of the petitioner Bachu Rai. These articles were seized by the Police Party and a seizure list was prepared in presence of the witnesses. After investigation, charge-sheet was submitted against the petitioners and other accused persons separately under Sections 402 and 399 of the Indian Penal Code and Sections 25-A and 26 of the Arms Act. Consequently thereof, the petitioners were put on trial where they were found guilty for the offence under Section 25-A and 26 of the Arms Act and they were sentenced accordingly but in the separate trial for an offence under Sections 402 and 399 of the Indian Penal Code, they were acquitted. 5. Learned Counsel appearing on behalf of the petitioners submitted that the prosecution has not been able to prove the charges levelled against the petitioners beyond all reasonable doubt inasmuch as that the seizure list witness PW 4 turned hostile and did not support the factum of recovery of the fire-arms and ammunitions from the persons of the petitioners. 5. Learned Counsel appearing on behalf of the petitioners submitted that the prosecution has not been able to prove the charges levelled against the petitioners beyond all reasonable doubt inasmuch as that the seizure list witness PW 4 turned hostile and did not support the factum of recovery of the fire-arms and ammunitions from the persons of the petitioners. Learned Counsel further submitted that other witnesses, namely PWs 1, 2 and 3 are all Police officials and in absence of independent witness to prove that arms and ammunitions were recovered from the persons of the petitioner, the impugned judgment and order of conviction and sentence passed against them is not sustainable in law. Learned Counsel lastly submitted that the petitioners are first offenders and sentence passed against them is very severe. 6. I have perused the impugned judgments. The Courts below having analysed the evidence found the petitioners guilty for the offence under the Arms Act. It appears that charge was framed against the petitioners under Sections 25-A and 26 of the Arms Act. At the face of the allegation levelled against the petitioners, as noticed above, in my opinion, the charge under Section 25-A of the Arms Act is not sustainable. In the facts and circumstances of the case and at the face of the accusation made against the petitioners, the petitioners could have been charged under Section 25(1-B) of the Arms Act as they had acquired and possessed of fire-arms and ammunitions in contravention of Section 3 of the Arms Act. In this view of the matter, charge framed against the petitioners under Section 25-A of the Arms Act is altered under Section 25(1-B) of the Arms Act. 7. On perusal of the impugned judgments, I find that though PW 4 a seizure list witness, turned hostile, he has not denied his signature put on the seizure list nor he has said anything in his evidence that his signature was forcibly taken on the plain paper rather he said in his evidence that on asking of the Police officials, he put his signature on the seizure list. The evidence of PW 4 even though it has been declared hostile, in my opinion must be used to prove the charges levelled against the petitioners. The evidence of PW 4 even though it has been declared hostile, in my opinion must be used to prove the charges levelled against the petitioners. The evidence of PWs 2, 3 and 4 are consistent on the point that the petitioners along with other accused persons were apprehended and arms and ammunitions were recovered from the persons of the petitioners. In this view of the matter, it must be held that the prosecution has proved the charges levelled against the petitioners beyond all reasonable doubts for an offence under Sections 25(1-B) and 26 of the Arms Act. The conviction of the petitioners under both counts, therefore, is maintained. So far as the question of sentence is concerned, it appears that the occurrence had taken place in the year 1983 and as I am informed by the learned Counsel for the petitioners that the petitioners have suffered imprisonment for about a month. 8. It also appears to me from the materials on record that the petitioners have been acquitted of the charges under Sections 402 and 399 of the Indian Penal Code for which they were separately tried and in view of the acquittal of the petitioners under Sections 402 and 399 of the Indian Penal Code, it must be held in absence of any evidence supporting the factum that the petitioners had used the firearm for any unlawful purpose. 9. Considering the facts and circumstances of the case, therefore, in my opinion, it would be appropriate to reduced the sentence passed against the petitioners to the period already suffered by them in addition to a fine. I, therefore, reduced the sentence passed against the petitioners to the period already suffered by them, as indicated above. They are directed to pay a fine of Rs. 1,000/- (Rupees one thousand) each and in default in payment of fine, the petitioners shall suffer rigorous imprisonment for one month each. 10. With the aforesaid modification and reduction in sentence, these applications are dismissed.