MUNAVIR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicant has been convicted for the offence under Sec. 25 Arms Act and sentenced to undergo nine months R.I. by the judgement and order dated 20.3.1982 passed by Sri Yashwant IInd Additional Munsif Magistrate 1st Class Mathura. The appellate court has upheld the conviction and reduced the sentence from nine months to three months only. The applicant in this revision petition challenges the conviction and sentence both on the solitary ground that there is no evidence of fire arm expert to say that the alleged weapon recovered from the possession of the applicant was Fire arm under the definition of Sec. 2 (e) Arms Act. The evidence on record speaks that the witness of recovery namely P.W. 2 Gaya Prasad Pathak, P.W.3 Hari Shankar both police witnesses have stated that one country made pistol (Tamancha) and two live cartridges were recovered from the possession of the applicant. The defence taken by the applicant in the lower court was that he has been falsely implicated due to some altercation with the police. On D.W. was examined to support this defence of the accused-applicant. At no stage of trial it was alleged that the arm alleged to have been recovered was not fire arm in the definition of Sec. 2 (E) of the Arms Act. Two witnesses have clearly stated that two cartridges and fire arm (Tamancha) were recovered from the possession of the Applicant. The experts can rely only on the question if the weapon was affective fire arm or not. Law does not require any expert on the points which are apparent from the fact of it. The construction and appearance of the weapon itself speaks that it is a fire arm. The two witnesses examined in this case clearly speak that it was fire arm. The effectiveness or otherwise of the arm is not a question to decide for the offence under Sec. 25 Arms Act. Simply possession of fire arm without proper authority is punishable offence. There is not scope to interfere the lower court judgement and order. Learned counsel has further submitted that the applicant is facing criminal proceeding since 1977 and the sentence is of only three months which can be reduced and the applicant may be left under the provisions of the Probation of Offenders Act because it is the first offence of the applicant and there is no previous conviction. I find sufficient ground in this submission of the learned counsel. The protracted criminal trial for several years gives sufficient justification that the applicant who is not alleged to have any criminal history should be given opportunity to mend himself. Accordingly substantive sentence of three months is hereby set aside and the applicant is directed to remain in the supervision of the District Probation Officer, Mathura for a period of one year of maintaining peace and good behaviour. If this period of one year passes peacefully without any repetition of crime of the applicant then he need not surrender and he will not be sent to custody. With this modification in the term of sentence the revision petition is dismissed. The applicant will appear before the court below at Mathura by 15th Feb., 1995 to execute the required bonds under the Probation of Offenders Act as directed above failing which the learned Munsif Magistrate Mathura will take steps for compliance of the order.