UPDESH ALIAS CHINTU Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against the judgment dated 7 th July, 2011 and order on sentence dated 11 th July, 2011 passed by learned Additional Sessions Judge convicting the Appellant for offence punishable under Section 25 Arms Act. The Appellant was sentenced to undergo Rigorous Imprisonment for three years and pay a fine of Rs.10,000/- and in default of payment of fine to further undergo Simple Imprisonment for a period of three months.

(2.) Learned counsel for the Appellant contends that the entire approach of the learned Appellate Court was patently wrong as it did not weigh the reasons based on which the learned Trial Court had acquitted the appellant. Learned Appellate Court ignored the golden rule that where an order of acquittal is recorded by the Trial Court, the Appellate Court must bear in mind that there is double presumption in favour of the accused. Learned Appellate Court has failed to appreciate the facts of the case and ignored that neither PW-7, who recorded the disclosure statement in case FIR No.154/2009, nor the Investigating Officer in their statement(s) before the Court brought on record any disclosure statement. Moreover, PW-7 in his cross-examination had admitted that the appellant did not state that he had kept arms and ammunition in his house in the said alleged disclosure statement. No disclosure statement has been exhibited or marked during the examination of PW-7 or PW-8. Learned Appellate Court erred in law as well as on the facts as it has ignored the clear contradiction elicited in the cross-examination of PW-7 and PW-8. It is further contended that the learned Appellate Court has erred in concluding that the alleged recovery has been effected from the exclusive possession of the Appellant whereas there is no evidence on record to suggest the same. The link evidence connecting the Appellant to the room from where the recovery was made is missing in the present case. In view of missing links and contradiction in the testimonies of the prosecution witnesses, the view taken by the learned Metropolitan Magistrate acquitting the Appellant was correct. Learned counsel has placed reliance upon Ramesh Babulal Doshi vs. State of Gujarat, 1996 9 SCC 225 and Bhaiyamiyan @ Jardar Khan & Anr. vs. State of Madhya Pradesh,2011 CrLJ 577, to contend that in an appeal against acquittal, the Appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. Therefore, the judgment passed by the learned Appellate Court reversing the order of acquittal is erroneous and liable to be set aside.

(3.) Per contra, learned APP for the State contends that there is no illegality in the impugned judgment as stated by the learned counsel for the appellant. Learned Additional Sessions Judge has considered all the relevant aspects which have arisen in the present case and correctly convicted the appellant. The contradictions as pointed out by the counsel for the Appellant are not glaring contradictions which go to the root of the prosecution case. The disclosure statement of the Appellant has been recorded only before registration of FIR No.111/2009 and the same could not have been recorded thereafter in the said case. Thus, the view taken by the learned Additional Sessions Judge is correct which requires no interference by this Court. The present appeal is liable to be dismissed being devoid of merit.