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2014 DIGILAW 861 (PAT)

Munna Sharma v. State Of Bihar

2014-08-08

GOPAL PRASAD

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ORAL JUDGMENT Gopal Prasad, J. - Heard the learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 25(1-B) a of the Arms Act and sentenced to undergo rigorous imprisonment for two years and has, further, been convicted under Section 26 of the Arms Act and has been sentenced to undergo rigorous imprisonment for eight years with a fine of rupees five thousand and in case of non-payment of fine to undergo rigorous imprisonment for two months though all the sentences will run concurrently. 3. The learned counsel for the appellant, however, contends that he is not pressing the appeal on the point of conviction and contends that since the appellant has been convicted under Section 25(1-B)a of the Arms Act, which states that whoever acquires has in possession or carries on any arm and ammunition in contravention of Section 3 of the Arms Act and has been convicted for two years, however, he has been convicted under Section 26(2) of the Arms Act for ten years whereas Section 26(2) of the Arms Act provides that whoever does any act in contravention of any of the provision of Sections 5, 6, 7 and 11 of the Arms Act, then, he shall be punished not less than five years, which may extend up to ten years. However, Section 26(1) of the Arms Act provides that whoever does any act in contravention of the provision of Sections 3, 4, 10 and 12 of the Arms Act shall be imprisoned, which is not less then six months, which may extend up to seven years and, hence, contends that since the conviction under Section 25(1-B)a of the Arms Act is in contravention of the provision of Section 3 of the Arms Act and, hence, the conviction recorded under Section 26(2) of the Arms Act is not sustainable and he is required to have been convicted under Section 26(1) of the Arms Act, which has maximum punishment of seven years. It has, further, been contended that he is already in jail since 06.09.2007 and he has almost completed the sentence, which is only one month less than seven years, hence, he may be ordered to be released for the period already undergone. 4. It has, further, been contended that he is already in jail since 06.09.2007 and he has almost completed the sentence, which is only one month less than seven years, hence, he may be ordered to be released for the period already undergone. 4. Taking into consideration the fact, which has been concluded that the prosecution has been able to prove that on the date and time of occurrence the appellant was arrested along with the country made carbine and from his house instruments for manufacturing arms have been recorded and at the time of occurrence, the appellant was caught while fleeing along with the country made carbine and then he was apprehended by the raiding party and appellant disclosed his name as Munna Sharma. 5. The police after investigation submitted the charge sheet. However, the prosecution supported the case that on secret information a raid was conducted, articles recovered and the appellant found fleeing away along with the country made carbine and was apprehended along with the country made carbine. P.W. 5, the informant, stated that the seized country made carbine was kept in a bag (jhola) and was sealed and P.W. 6, the investigating officer, has stated that all the articles sealed were kept in malkhana and with the permission of the Chief Judicial Magistrate, country made carbine was sent to Gopalganj and the investigating officer himself went along with the country made carbine to the Sergeant Major, who opened the seal in his presence, though it is not mentioned, and the Sergeant Major in his evidence has stated that the said fire arm was produced before him by the Assistant Sub Inspector of Police, Akhileshwar Singh. It was a country made carbine of 7mm bore with a magazine and examined the arm on the order of the Chief Judicial Magistrate and proved that it is effective and prosecution has been able to prove the case beyond all reasonable doubt and the convict, Munna Sharma, was caught with country made carbine and articles of manufacturing arms have been recovered from his house. However, from the evidence of P.W. 7 the conviction has been recorded under Section 25(1-B)a of the Arms Act and the charge has also been framed under Section 25(1-B)a of the Arms Act and sentenced under Section 25(1-B)a of the Arms Act for two years rigorous imprisonment with a fine of rupees five thousand. However, from the evidence of P.W. 7 the conviction has been recorded under Section 25(1-B)a of the Arms Act and the charge has also been framed under Section 25(1-B)a of the Arms Act and sentenced under Section 25(1-B)a of the Arms Act for two years rigorous imprisonment with a fine of rupees five thousand. However, no cross appeal has been preferred to challenge the order of conviction under Section 25(1-B)a of the Arms Act. There is no evidence adduced that all the act of commission and omission has been made by the appellant to have been stated to have acted in a manner to indicate the intention with such act may not be known to the public servant. However, the only material against the appellant is that at the time of raid of the house, the appellant tried to flee away with the country made carbine and was apprehended and, hence, the only material for conviction under Section 26(2) of the Arms Act that the appellant started fleeing away with the country made carbine when police apprehended the victim. 6. Hence, having regard to the fact that the appellant has been convicted under Section 25(1-B)a of the Arms Act, but, simultaneously convicted under Section 26(2) of the Arms Act and sentenced to undergo rigorous imprisonment for ten years. 7. However, having regard to the fact the appellant convicted under Section 25(1-B)a of the Act, which is an offence for violation of Section 3 of the Act and Section 26(1) provides punishment for violation of Section 3 of the Act, which is only to the maximum extent of seven years. But, even assuming the appellant armed with prohibited weapon, but, convicted under Section 25(1-B)a of the Act and for offence under Section 26 of the Act only it has been mentioned that the time of raid the appellant flee with gun. 8. Having regard to the facts and circumstances of the case, the end of justice would be suffice by sentencing the appellant for the period already undergone under Section 26(2) of the Act, hence, the order of sentence for offence under Section 26(2) of the Arms Act is modified to the period already undergone. 9. With this modification in sentence, the appeal is dismissed. Appeal dismissed.