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2012 DIGILAW 2054 (RAJ)

Charan Singh v. State of Rajasthan

2012-10-03

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant appeal has been filed under Section 374 Criminal Procedure Code against the judgment dated 16.2.1994 passed by the Addl. Sessions Judge, Hanumangarh (Camp Sangaria) in Sessions Case No. 65 of 1993 whereby the learned, trial Court acquitted the appellant of the charge under Section 302 Indian Penal Code but convicted him for commission of offence under Section 27, Arms Act and sentenced him to undergo rigorous imprisonment for one year and pay fine of Rs. 200/-. 2. As per facts of the case, on the basis of statement of PW-4 Rajesh Kumar, an F.I.R. was registered against the appellant for alleged offences under Section 302, Indian Penal Code read with Section 27, Arms Act at Police Station Sangaria, in which, it is alleged that he is salesman at Theka Sharab situated at Nukera. On 11.4.1993, at about 12 A.M. In the noon, deceased Chanan Singh came at the wine shop along with Charan Singh for buying liquor. When they were drinking liquor a quarrel took place in between them and, all of a sudden, accused Charan Singh took out fire arm and fired shot at Chanan Singh. Due to that fire-arm shot received in the abdomen, Chanan Singh died. Accused ran away from the place of occurrence. 3. Police Station Sangaria registered case under Section 302, Indian Penal Code, read with Section 27, Arms Act against the appellant and, after investigation, filed challan against the appellant for offences under Section 302, Indian Penal Code read with Section 27, Arms Act. 4. In the trial, as many as eight witnesses were examined by the prosecution and, thereafter, statement of appellant under Section 313, Criminal Procedure Code was recorded. The appellant pleaded not guilty. Learned trial Court acquitted the appellant-accused for offence under Section 302, Indian Penal Code because all the eyewitnesses turned hostile but convicted the appellant for offence under Section 27, Arms Act and passed sentence of imprisonment for one year simple imprisonment along with fine of Rs. 200/-. 5. The appellant pleaded not guilty. Learned trial Court acquitted the appellant-accused for offence under Section 302, Indian Penal Code because all the eyewitnesses turned hostile but convicted the appellant for offence under Section 27, Arms Act and passed sentence of imprisonment for one year simple imprisonment along with fine of Rs. 200/-. 5. Learned counsel for the appellant vehemently argued that as per Section 27 of the Arms Act, the appellant has wrongly been convicted for the said offence because the trial Court acquitted the appellant for offence under Section 302, Indian Penal Code therefore, admittedly, the trial Court gave finding that prosecution has failed to prove the allegation of using fire-arm and, accordingly, the finding given by the trial Court to hold the appellant guilty under Section 27, Arms Act is erroneous and illegal. It is also submitted that to prove the fact of recovery of the pistol names of two witnesses were mentioned in the list of witnesses by the prosecution; but, out of two, only one witness PW-2 Balbir Singh was produced before the Court to prove the fact of recovery of pistol from the appellant. 6. learned counsel for the appellant invited my attention towards statement of PW-2 Balbir Singh before whom the police allegedly recovered the pistol from the house of the appellant, so also, statement of Investigating Officer PW-7 Richhpal Singh who deposed in his statement that as per information given by the accused-appellant Charan Singh under Section 27 of the Evidence Act, one 12 bore pistol' was recovered from the recess in the wall of the house of the accused-appellant. 7. Contention of learned counsel for the appellant is that there is major contradiction in the statement of PW-2 Balbir Singh and PW-7 Richhpal Singh because Balbir Singh, PW-2 stated before the Court that pistol was recovered from the angan (Court-yard) whereas PW-7 Richhpal Singh said that 12 bore pistol was recovered from the recess in the wall of the house of the appellant, therefore, the prosecution has failed to prove the alleged recovery of pistol. 8. 8. Learned counsel for the appellant further submits that out of two witnesses only statement of PW-2 Balbir Singh was recorded and, from his statement, it is apparently clear that his statement cannot be used against the appellant because his thumb impression was not proved before the Court, therefore, in absence of proper evidence of recovery the testimony of Investigating Officer PW-7 Richhpal Singh cannot be accepted. Therefore, the appellant is entitled to be acquitted from the charge under Section 27, Arms Act. 9. Per contra, learned Public Prosecutor vehemently argued that there is no illegality and perversity in the judgment impugned because PW-7 Investigating Officer Richhpal Singh has categorically said that 12 bore pistol was recovered at the instance of the appellant in front of PW-2 Balbir Singh and Balbir Singh, in his statement, said that the pistol was recovered in front of him, therefore, it cannot be said that any error is committed by the trial Court while holding the appellant guilty for offence under Section 27, Arms Act. Therefore, no case is made out for interference in the judgment impugned in this appeal. 10. After hearing learned counsel for the parties, I have perused the entire record of the case, so also finding given by the trial Court. 11. Admittedly, in absence of evidence on record, the trial Court-acquitted the appellant from the charge for offence under Section 302, Indian Penal Code; meaning thereby, the trial Court gave finding that prosecution has failed to prove the case for offence under Section 302, Indian Penal Code, therefore, the trial Court gave finding that there is reasonable doubt whether the pistol was used by the accused-appellant. If such finding is there, then, obviously the punishment awarded to the appellant for offence under Section 27, Arms Act is not justified. 12. However, upon perusal of statement of PW-2 Balbir Singh before whom recovery of pistol was allegedly made and statement of PW-7 Richhpal Singh, it emerges that there is evidence on record to prove that 12 bore pistol was recovered and found in possession of the appellant. Therefore, it can be said that though offence under Section 27 of the Arms Act is not made out upon the facts of the present case but there is material evidence on record for arriving at the finding that offence under Section 25 of the Arms Act is clearly made out. Therefore, it can be said that though offence under Section 27 of the Arms Act is not made out upon the facts of the present case but there is material evidence on record for arriving at the finding that offence under Section 25 of the Arms Act is clearly made out. Therefore, in my opinion, upon the evidence that recovery of pistol was made from the possession of the appellant and there is finding of the trial Court for acquitting the appellant from charge for offence under Section 302, Indian Penal Code, I Seen it proper to modify the judgment of the trial Court and hold that the appellant is guilty for offence under Section 25, Arms Act instead of offence under Section 27, Arms Act. 13. Consequently, this appeal is partly allowed and for the reasons that occurrence took place on 11.4.1993, near about' two decades ago, and the appellant remained in custody with effect from 11.4.1993 to 16.2.1994,1 deem it proper to reduce the sentence awarded to the appellant from one year rigorous imprisonment to the period of imprisonment already undergone by him. Ordered accordingly. The appellant is on bail, therefore, his bail bonds are hereby discharged.Appeal partly allowed. *******