Gopal Prasad, J.@mdashHeard Mr. Amit Shrivastava and Mr. N.K. Nirala, learned counsels for the appellant in Cr. Appeal No. 217 of 1999 and Mr. Girish Pandey, learned Amicus Curiae for the appellant in Cr. Appeal No. 224 of 1999 and learned counsel for the State.
2. Two appeals have been heard together and disposed of by common order as both arises out of common judgment dated 28. 07.1999, passed by Shri Abdul Samad, 3rd Additional Sessions Judge, Munger, in Sessions Case No. 784 of 1998 arising out of Munger Muffasil P.S. Case No. 211 of 1998.
3. The appellants have been convicted for offence u/s 25(1-A)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for four years and pay a fine of Rs. 1,000/- each and in default to undergo S.I. for one month. They have been further convicted for offence u/s 25(1-B)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and also pay a fine of Rs. 500/- each and in default to undergo S.I. for 15 days each. They have been further convicted for offence u/s 26(2)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for five years each and also pay a fine of Rs. 2,000/- each in default to under S.I. for two months each and all the sentences will run concurrently.
4. The prosecution case as alleged by the informant Amrendra Kumar Singh (P.W.11) on secret informant that Md. Miraj is running a gun factory for manufacturing of fire arms then he entered the information in station diary, informed the Senior Police Officer and proceeded to raid along with Amarendra Kumar Singh, Officer-in-Charge, Muffasil P.S., informant (P.W.11), Krishna Gahlout, I.O. (P.W.13), Dilip Kumar Thakur, Constable (P.W.5), Raj Kumar Thakur, (P.W. 7), Awadhesh Pandit (P.W.6), Bedanand Thakur (not examined), Dharmendrfa Kumar (not examined), Manoj Kumar Mahto (not examined), Radha Raman Chaturvedi (P.W.9), Suresh Prasad, (P.W.8), Akhilesh Singh, (P.W.10) and S. N. Jha (not examined) and raided the Bakarpur, at about 9 A.M. there he took two independent witnesses Md. Khalique (P.W.1) and Md. Raffique Ahmad (P.W.2) and then proceeded to the house of Md. Miraj for raid. He raided the house in accordance with law and caught hold of two persons raid handed who were manufacturing fire arm and they disclosed their names Md. Miraj and Md. Jabbar. On search one Bhati, 3 half built barrel, 3 half built body and butt, 2 Reti, 3 Sharsi, 4 Chheni, 1 hack-saw blade along with frame, 1 drill machine, 2 base, 2 hammer, one big and other small, 9 empty cartridges 303 one unsused cartride, 3 half built trigger and certain pieces of cut iron sheet in the size for preparing pistols. However no papers were produced with regard to the seized articles. However, seizure list was prepared with regard to the seized articles and both the witnesses signed and accused persons put their signature and L.T.I. respectively and case was lodged against them for offence under Sections 25 (1-A) (1-B) and (c) as well as section u/s 26(2) and (3). After lodging of the F.I.R., investigation proceeded and charge sheet submitted. Cognizance taken and case was committed to the Court of Sessions.
5. During trial 14 witnesses were examined. However witness no. 1 and 2 are independent seizure list witnesses, though, accepted their signature on the seizure list, but have not supported seizure list and declared hostile. P.W. 3 and 4, Md. Fakruddin and Md. Meharuddin are co-villagers, but they have not supported the prosecution case and they have been declared hostile by the prosecution. P.W. 5, 6 and 7 are members of the raiding party and have also not supported the prosecution case and have been declared hostile. P.W. 8 is the member of the raiding party however stated that he saw the seizure of half manufactured fire arm being kept in a gunny bag.
6. P.W. 11 is the informant and in his evidence stated that he raided the house of Md. Miraj along with two independent witnesses and seized articles and has proved seizure list with regard to the seized articles in the writing of Krishna Gahlout and he has also proved the written report which has been marked as Ext. 2. On the basis of which F.I.R. has been lodged. He has also proved produced seized articles which has been marked material Exts. I to II/2, III to III/2 which are half constructed 3 barrels, half constructed 3 built body and butt and Bhati. He has also proved other articles Chenni, Reti, Sarsi, hack blade etc. which has been marked material Exhibit IV and IV/1, V to V/2, VI to VI/3, VII and VII/1, VIII, IX and IX/1, X and X/1, XI to XI/2, XII to XII/2 and XIII to XIII/2. However, in his cross-examination he has stated that Bhati seized was not installed and there was no coal or fire and rest articles seized was kept at one place. There was no iron sheet and he did not find iron hub on which iron is thrashed. However, stated that he has not taken signature of the witnesses on the material Exhibit and articles seized were kept in a gunny bag, though, there is chit of paper, but there is no sign or seal on the said articles. P.W. 9 has supported the prosecution case regarding search and seizure of articles.
7. P.W. 12 is Sergeant Major and has stated that seized articles were placed before and was returned after examination along with his report. However, he has stated that Bhati, Reti, Sharsi, Chheni, hack-saw blade, drill machine, hammer are used for preparing other articles and also be used for breaking the stone. However, he has stated that size of barrel has not been mentioned.
8. P.W. 13 is the I.O. is also member of the raiding party and he has stated that on raid accused persons were found manufacturing fire arms and they disclosed their names and seized articles were recovered. Seizure list was prepared. He has proved the prosecution sanction (Ext.4) and after investigation submitted charge sheet for offence u/s 25(1)(b) 1 ((a) and (C) 26(2). However, he has stated in his cross-examination that from where articles were seized is not mentioned in the case diary. He has further stated in his evidence that, though, articles were seized from the room, but he did not find burning of chulla or bhati and he also did not find wooden powder. However, he has denied the suggestion that it is not true that he did not find any prove of illegal manufacturing of fire arm.9. The defence of the accused persons is that they have been falsely implicated in this case and no articles were seized from the house and they have been falsely implicated because of prior enmity with the constable as he had earlier filed a case against the constable bearing Muffasil P.S. Case No. 202 of 1988 in which police constable was accused in the case for offence u/s 307 and other allied Section of Penal code and so to take revenge he has falsely been implicated.
10. The trial court taking into consideration evidence of the witnesses convicted for offence u/s 25(1-A)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for four years and pay a fine of Rs. 1,000/- each and in default to undergo S.I. for one month. They have been further convicted for offence u/s 25(1-B)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and also pay a fine of Rs. 500/- each and in default to undergo S.I. for 15 days each. They have been further convicted for offence u/s 26(2)/35 of the Arms Act and sentenced to undergo rigorous imprisonment for five years each and also pay a fine of Rs. 2,000/- each in default to under S.I. for two months each in view of the fact that prosecution supported the prosecution case.
11. Learned counsel for the appellants however, contends that two independent seizure list witnesses have not supported the prosecution case. The I.O. was the member of the raiding party. From evidence of this witness and informant P.W. 11 it is well established that there is no evidence about manufacturing of fire arm. The witness has stated that the articles can be used for manufacturing of other article other than fire arms and Bhati neither installed or there was any fire hub was found to suggest that accused persons manufacturing fire arm and hence prosecution has not been able to prove the case beyond reasonable doubt and to record the conviction under which charges were framed.
12. Learned counsel for the State however supported the prosecution case and asserted that order of conviction has passed after taking into consideration the evidence of witnesses which is just and proper.
13. However, taking into consideration the prosecution case as made out in the Fardbeyan that the informant on secret information that Md. Miraj is manufacturing fire arms proceeded to the house along with independent witnesses set up in the way and thereafter raided the house and it is alleged that both the appellants caught raid handed while manufacturing fire arm and articles were seized. However, 14 witnesses were examined by the prosecution to prove the charges, but out of 14 witnesses, P.W. 1 and 2 who are independent witnesses, though, proved the signature on the seizure list but have not supported the factum of seizure and manufacturing of fire arm. P.W. 3 to 7 have also turned hostile and have not supported the prosecution case.
14. However, P.W. 11 is the informant, though, he has come to support the prosecution case and has asserted that both were engaging in manufacturing fire arm. However, there is no specific mention that what act of commission or omission was being done by them in manufacturing fire arm. However, this witness in his evidence in cross-examination has specifically stated that Bhati wass not installed. There was no fire or coal there and all the seized articles were kept at one place. There was no iron sheet nor there is any iron hub on which iron thrashed to shape to manufacture. Hence from his evidence, it is apparent that prosecution case at the time of raid, appellants were manufacturing fire arm has not been established and no cogent, reliable evidence has been place to infer that these appellants were manufacturing fire arm at about the time when the raid was conducted. P.W. 8 has only stated that half manufacturing fire arm was kept in a bag. P.W. 9 also supported the prosecution case about seizure of the articles which were seized and only said that seized articles were kept in a gunny bag and preparation of seizure list. P.W. 13 is the I.O. and he has also statd that he did not find burning chulla or bhati and has stated that articles were kept in a gunny bag.
15. Hence from the evidence of the witnesses the evidence regarding manufacturing of fire arm does not inspire confidence as there is no specific assertion that what act of omission and commission was being done to infer that they were manufacturing fire arm. However, from the evidence of P.W. 11 and 13 it is apparent that bhati was not installed or there was no fire nor they found hub to infer that they were manufacturing fire arm. P.W. 12 is the Sergeant Major. However, he has stated that he examined the articles seized and have given his report which has marked as Ext. 2 and has stated that item nos. 1, 4, 5, 6, 7, 8, 9, 10 and 11, the Chenni, Sarsi, Reti etc. can be used for preparing for other articles other than fire arm. These articles reti, sharsi, chheni, hack-saw blade, drill machine and hammer can be find before any carpenter. However, articles like barrel, half built body and butt, though, are part of fire arm, but they come under the definition of arm for offence u/s 2(e) of the Arms Act. However, this barrel, half constructed butt and body, though, may be stated to have part of fire arm have been recovered from the house of the appellants.
16. However, having regard to the evidence of P.W. 11 and 13 that there was neither any bhati was found nor there was any fire nor there was any iron hub for thrashing iron found and have stated that articles were recovered in one place. Hence there is no evidence regarding manufacturing of fire arm and hence the prosecution has not been able to establish that the accused persons were engaged in manufacturing of fire arm.
17. Hence I find and hold that there is no evidence that the appellant were engaged in manufacturing of fire arm. On evidence of the witness it can only be inferred that the accused persons in possession of barrel, half butt which is a part of fire arm. However, having regard to the evidence the prosecution fails to prove the manufacturing of fire arm. Hence evidence on the prosecution case only established possession of these articles with the appellants. Hence on the basis of evidence adduced by the prosecution only evidence made out 25(1)(b)(a). However, offence u/s 25(1)(a) or 26(2) is not made out and hence order of conviction recorded u/s 25(1-B) and 26(2) is hereby set aside. However, with regard to offence u/s 25 1(b)(a) appellant has already remained in jail for about a year.
18. However, having regard to the fact and circumstance, the occurrence is of the year 1998 and the appellants have suffered a rigour. Hence end of justice shall meet by sentencing the appellants for the period already undergone. Hence both the appeals are allowed in part.
