RAMESH TEJBAHADUR THAPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Miss Pooja Bhojane for the appellants and Shri Gadkari, A. P. P. for the respondent. Miss. Pooja Bhojane appearing for the appellant submitted that keeping in view the darkness in the hut and the evidence on record, it cannot be said by any stretch of imagination that the appellants were in possession of revolvers and catridges, for possession of which they have been convicted and sentenced under Section25 (1) (B) (a) r/w Section3 of Arms Act 1959 (hereinafter referred to as Arms Act for convenience ). She pointed out that even panch witnesses were not with the raiding party and the evidence, if appreciated as a whole, does not prove that the appellants both or either of them were in possession of the said revolvers and catridges. Shri Gadkari, A. P. P. appearing for the prosecution submitted that the appellants were found and were arrested in the said hut and said weapons and catridges have been seized from them. He justified the order of conviction and sentence as correct, proper and legal. This Court comes to the conclusion, after appreciating the evidence on record carefully, that the order of conviction and sentence is not sustainable and the appeal deserves to be allowed. The reasons for that are stated hereunder.

(2.) IT is to be noted that when as per the evidence of P. W. Adhikrao Thorat and Katkade the information was reliable, informing that the appellants were present in the said hut along with other associates for preparing for committing the dacoity, it was not difficult for the members of raiding party to take the panch witnesses with them. Further, the evidence on record itself shows that the said hut was situated in a thick locality, therefore, before making access to the said hut, raiding party could have collected the panch witnesses from the said locality. But it was not done and the panch witnesses were called only after the appellants were arrested by the members of raiding party. Panch witnesses Mulchand as well as Thorat and Katkade said unequivocally that there was darkness in the said hut. When that was so, how the prosecution can fasten the possession of the revolvers and catridges on both the appellants or any one of them. IT could have been possessed by their associates who had run away from the said hut. The possession always requires two things to be proved viz. (1) exclusive dominion over articles and (2) the knowledge. Absence of any one of them would not prove the possession in legal parlance. Prosecution was obliged to prove conscious and exclusive possession. The prosecution has failed to do so, so far as present case is concerned.

(3.) THE learned trial Judge has committed error in appreciating the evidence without proper approach. He ignored the inherent infirmities in the prosecution case as pointed out above. Thus the conclusions recorded by the trial Court are not consistent with the evidence on record and, therefore, it will have to be held that the learned trial Judge has committed the error in convicting and sentencing the appellants.