BAJENDRA Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the judgment of the First Temporary Civil and Sessions Judge, Ghazipur, dated 19 -6 -1973, upholding the conviction of the applicant under Section 5 of the Telegraph Wires (Unlawful Possession) Act. (briefly stated as 'the Act'). By the judgment dated 22nd March, 1973, the Assistant Sessions Judge had sentenced the applicant to three years' R. I. It was this judgment which was upheld by the learned Sessions Judge, in appeal.

(2.) SRI S.K. Verma, learned Counsel for the applicant, argued three points before me in this revision. The first point was that as the prosecution failed to establish that the wire found from the possession of the applicant was telegraph wire within the meaning of that word as defined in the Act, the Courts below committed an error in convicting the applicant of the offence under Section 5 of the Act. It was contended by the learned Counsel for the applicant that in order to prove the wire to be telegraph wire, the prosecution should have established that three tests had been carried out by the Expert who examined it, and as in the instant case the evidence of Sri R. M. Khare (PW 8) shows that he carried out two tests only and did not carry out the test for checking the resistance of the wire, the conviction of the applicant is bad. learned Counsel for the applicant placed reliance on a case reported in Gauri Ram v. State of U.P., 1972 AWR 677, in support of his proposition.

(3.) SO far as the case relied upon by the learned Counsel for the applicant is concerned, it is true that in that case the Division Bench found that as the resistance of the wire had not been checked by the Expert, the prosecution could not be said to have established that the wire found from the possession of the accused of that case was telegraph wire. But it is material to point out that in that case itself the Division Bench observed that :