KHAN MOHD. AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment passed by the learned Additional Sessions Judge No. 1, Jodhpur dated 5-2-1983 by which appellants Khan Mohammad and Allabasaya were convicted for the offences under sec. 25 and 27 of the Arms Act and sentenced to 9 months rigorous imprisonment each on the first count and to one and a half years rigorous imprisonment each and a fine of Rs. 50.00 in default to undergo one months rigorous imprisonment each on the second count. Khan Mohammad, Aleabasaya and Mishri appellants were convicted for the offence under section 3/14 of the Foreigner's Act and sentenced to one and a half years rigorous imprisonment and a fine of Rs. 50.00 in default to undergo one months Rigorous Imprisonment each. At the commencement of the arguments the learned counsel for the appellants submitted that he does not press the appeal on merits but prays that in view of the facts and the circumstances of the case a lenient view may be taken and the sentence awarded to the appellants may reduced to the period they had remained in custody so far. The learned Public Prosecutor contested this prayer 011 the ground that the offence under the Foreigner's Act is a serious offence and 110 leniency is called for.

(2.) I have examined the record of the case. The appellants are in custody since 6-5-82 Khan Mohammed and Allabasaya have sulferred the sentences awarded to them for the offence under section 25 of the Arms Act. So far section 27 of the Arms Act is concerned the perusal shows that there is no specific evidence as to who out of the appellants had fired the gun. No pellets, empty cartridges or wads were found at the place the petitioners are said to have been at the time of the alleged encounter. The firing is said to be have taken place from a distance of about 100 yards from the place where the police party had taken position. No injury has been caused to any of the police personnel whereas Khan Mohammad has sustained gunshot injury on the thigh. The learned Judge in view of the peculiar circumstances of the case has not considered the appellants guilty for the offence under section 307 read with sec. 34 Penal Code for which they were tried.

(3.) The offence under section 3/14 of the Foreigners Act is of course a serious one. The appellants were not having passports with them. However, record discloses that they were found near-about the border and there is nothing to show that any offence was committed by them prior to the alleged firing. The learned counsel for the appellants submits that the appellants had remained in custody for 11 months and might have earned about two months period of remission by now.