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2015 DIGILAW 184 (GAU)

PRIYANATH DAS v. STATE OF ASSAM

2015-02-16

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is directed against the judgment dated 17.03.2006 of the learned Additional Sessions Judge, Kamrup, Guwahati passed in Sessions Case No. 94(K)/2005, by which the accused/appellant has been convicted u/s 25(1)(A) of the Arms Act. Consequent upon such conviction, he has been sentenced to undergo rigorous imprisonment for 05(five) years and also to pay fine of Rs.1000/- and in default, to undergo another rigorous imprisonment for 02(two) months. 2. I have heard Mr. S.C. Biswas, learned counsel for the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. I have also perused the entire materials on record. 3. Ext.2 is the FIR that was lodged by the PW-5 on 09.06.1997 with the Kamalpur Police Station stating therein that on 08.06.1997 at around 8 p.m., he conducted a search in the house compound of the accused/appellant in connection with Kamalpur P.S Case No.66/1997 u/s 394 IPC and during such search, he recovered one .303 bore pistol and 05(five) rounds of .303 live cartridges, which were kept concealed on a mosquito net of his sleeping room. He seized the same in presence of witnesses, as the accused could not show any valid document for keeping the same in his possession. 4. On the basis of the aforesaid FIR, Kamalpur P.S Case No. 68/1997 was registered u/s 25(1)(A) of the Arms Act. During investigation, the seized arms and ammunitions were sent to armourer for examination and after obtaining necessary sanction from the appropriate authority, submitted charge sheet under the aforesaid section. In due course, charge was framed under the said section and the same was explained to the accused/appellant, to which he pleaded not guilty and claimed to be tried. 5. Prosecution examined 07(seven) witnesses including the Investigating Officer. The accused was also examined u/s 313 Cr.P.C and his plea was that of denial. However, he did not adduce any evidence. 6. PW-3 and PW-4 are the seizure witnesses. PW-3 in his deposition stated that on the day of the incident, he was enjoying television inside the house of the accused/appellant. He saw the police personnel entering into the house of the accused/appellant and making search. Thereafter, police showed him a pistol and he was made to sign the seizure list. In cross examination, he deposed that the pistol was shown to him at the courtyard of the accused. He saw the police personnel entering into the house of the accused/appellant and making search. Thereafter, police showed him a pistol and he was made to sign the seizure list. In cross examination, he deposed that the pistol was shown to him at the courtyard of the accused. He categorically stated that he did not know as to where from the pistol was seized. 7. PW-4 is another seizure witness, who also deposed that the police showed him the pistol and also told him that the same was recovered from the dwelling house of the accused/appellant. In the cross examination, like that of the PW-3, he also stated that the police obtained his signature on the seizure list at the courtyard of the accused. 8. As discussed in the impugned judgment of conviction itself, the PW-1 did not implicate the accused in any manner, who in his deposition stated that about 08(eight) years back, he was called upon to Changsari Police Station and was asked to sign on a paper there. He stated that he did not see the accused at the police station and no any article was shown to him. 9. PW-2 in his deposition stated that he knew the accused/appellant and about 07(seven) years back, police went to his house and arrested him on suspicion. He also stated that the police showed him a pistol and 05(five) rounds of live cartridges at the police station and obtained his signature in the seizure memo. 10. PW-6 is the Sub Inspector of Arm Branch, who in his evidence stated that while he was working as Habildar at 4th Assam Police Battalion, on 23.07.1998, Kamalpur police station sent a sealed box being wrapped with white cloth through a messenger in connection with Kamalpur P.S. Case No.66/1997. Their office received the box on 23.07.1998 and on 01.08.1998, handed over the same to him for examination. He deposed that he opened that box and found one Country made .303 pistol and 1 No. of KF Factory made .303 BDR ammunition. According to him, the fire arms were in serviceable condition. 11. PW-7 in his deposition stated that on 09.06.1997, he was working as in-charge of Changsari police out post under Kamalpur Police Station and on that day Pw-7 lodged an FIR referred to above. According to him, the fire arms were in serviceable condition. 11. PW-7 in his deposition stated that on 09.06.1997, he was working as in-charge of Changsari police out post under Kamalpur Police Station and on that day Pw-7 lodged an FIR referred to above. On the basis of the said FIR, a case was registered u/s 25(1)(A) of the Arms Act and thereafter investigation was carried out. 12. Above are the evidence on the basis of which the learned trial Court has convicted the accused/appellant. While doing so, the learned trial Court has placed reliance primarily on the evidence of PW-3, Pw-4 and PW-5. As to what are their depositions during trial, has been noted above. PW-3 and PW-4 although are the seizure witnesses, but in their deposition/cross examination, they categorically admitted that the pistol was shown at the courtyard of the accused and that PW-3 did not know as to where from the same was seized. Similarly, PW-4 also stated that his signature was obtained at the courtyard of the accused. If the pistol and the ammunition were seized inside the sleeping room of the accused/appellant, the prosecution ought to have taken the signature of the seizure witnesses inside the room itself. However, the same was not done. As regards the evidence of PW-1, Pw-2 and Pw-6, same are not any help to the prosecution case. PW-7 generally stated about the investigation. 13. It is in reference to the above evidence, Mr. S.C Biswas, learned counsel for the accused/appellant has submitted that it will be totally unsafe to convict the accused/appellant on the basis of the said evidence. PW-5 was the Sub Inspector and informant of the case, who was led to the house of the accused/appellant by PW-2. Merely because he was led to the house of the accused/appellant by PW-2, it cannot be said that the pistol was recovered from inside the house of the accused/appellant in absence of any corroborative evidence of the seizure witnesses, who in their deposition categorically stated that the pistol was shown to them at the courtyard of the accused/appellant and not inside the room. 14. Above being the position, it will be totally unsafe to convict the accused/appellant on the basis of the aforesaid evidence. Accordingly, I am of the considered opinion that the accused/appellant is entitled to benefit of doubt. 15. Consequently, the impugned judgment of conviction stands interfered with. 14. Above being the position, it will be totally unsafe to convict the accused/appellant on the basis of the aforesaid evidence. Accordingly, I am of the considered opinion that the accused/appellant is entitled to benefit of doubt. 15. Consequently, the impugned judgment of conviction stands interfered with. The appeal is allowed. Bail bond stands discharged. 16. Registry shall send down the case record to the learned Court below along with a copy of this judgment and order.