GOVIND RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of filing the present revision petition, the petitioner has challenged the judgment dated 17.11.1992 passed by Additional Chief Judicial Magistrate, Deedwana in Criminal Case No. 116/1992 (245/ 1989) whereby the learned trial Court convicted the petitioner for offence under Section 25 (1-B) (h) of the Arms Act and sentenced him for the one year RI along with fine of Rs. 200/- and in default of payment of fine to further undergo one month RI so also the judgment dated 09.07.1993 passed by Additional District & Sessions Judge, Nagaur Camp at Deedwana in Criminal Appeal No. 62/1992 whereby the learned appellate Court while maintaining the conviction awarded to the petitioner reduced the sentence from one year RI to three months RI and maintained the sentence of fine.

(2.) According to the facts of the case, one rifle was recovered from the petitioner at the time of making an enquiry by police on 18.08.1989 at his residence. As per the prosecution case, the said rifle was produced by the petitioner before PW-6 Bhanwar Singh, SHO and the same was taken into possession through Exhibit P-1. License bearing No. 49/1963 issued in the name of late Jeevan Ram father of the petitioner was also produced by the petitioner, which was renewed upto 07.10.1969. The said license was taken into possession as Exhibit P-2 by the Investigating Officer and thereafter, the petitioner was arrested. After investigation, challan was filed against the petitioner for committing offence under Section 25(1-B) (h) of the Arms Act. Accordingly, charges were framed against the petitioner for offence under Section 25(1-B) (h) of the Arms Act. In all eight prosecution witnesses were examined before the trial Court and thereafter, statements under Section 313, CrPC were recorded and only one witness namely Anchi - mother of the petitioner was examined by the trial Court as DW-1. After hearing the arguments and perusing the record of the case, the trial Court recorded the finding of guilt against the petitioner for offence under Section 25 (1-B) fh) of the Arms Act and convicted and sentenced him as above vide judgment dated 17.11,1992. An appeal was preferred by the petitioner against the judgment of the learned trial Court and the said appeal was finally decided by Additional District & Sessions Judge, Nagaur Camp at Deedwana. The appellate Court while maintaining the conviction reduced the sentence awarded to the petitioner from one year RI to three months RI. The appellate Court further maintained the sentence of fine imposed by the trial Court. The petitioner has challenged both the orders passed by trial Court as well as appellate Court.

(3.) It is contended by the learned Counsel for the petitioner that both the judgments passed by Courts below are erroneous because prosecution has failed to prove its case beyond reasonable doubt. Admittedly, as per the prosecution case, the recovered rifle was belonging to late Jeevan Ram - father of the petitioner and there was valid license in his favour. As per the prosecution case, on 18.08.1989 an enquiry with regard to licensed rifle was made from house of late Jeevan Ram by the SHO and upon that enquiry, it was found by the Investigating Officer that said Jeevan Ram already died before 15 years back and as per the prosecution case, the said rifle was produced by the petitioner in presence of two independent witnesses namely PW-1 Jugal Kishore and PW-7 Mohan Ram and both these witnesses turned hostile before the learned trial Court and did not corroborate the prosecution case. It is also contended by the learned Counsel for the petitioner that in this case, the said weapon was taken into possession by SHO Bhanwar Singh - PW-6 and he himself prepared Exhibit P-1 and Exhibit P-2 and rifle and license was taken into possession by him. Therefore, he was complainant in the case and he himself conducted the investigation, therefore. whole of the case cannot be treated to be based on proper investigation. Likewise, it is contended by the learned Counsel for the petitioner that except witnesses of police, no one has corroborated the prosecution story. It is also contended that as per the facts of the case licensee of the rifle late Jeevan Ram left four sons and his wife behind him and all were residing in one house, therefore, it cannot be said that the prosecution has proved its case beyond reasonable doubt for the purpose of proving exclusive possession of said recovered rifle from the petitioner and the petitioner who is illiterate person cannot be held responsible. Further, it was the duty of the prosecution to prove its case that said rifle was recovered from exclusive and rightful possession of the petitioner. Admittedly, all the legal heirs of late Jeevan Ram were residing in the same house from where the rifle was recovered by the police and as per the statements recorded under Section 313, CrPC, it was categorically stated by the petitioner that he was not present at the time of alleged recovery. He was informed by his mother that police party came and they took the said rifle and they also called him at police station. It is also contended by the learned Counsel for the petitioner that the learned trial Court has failed to consider this aspect of the matter that the said rifle was not recovered from the exclusive possession of the petitioner and none of the independent witnesses have corroborated the prosecution story. Similarly, it is the case of the prosecution that the said rifle was belonging to father of the petitioner and there was valid license in his name, which was renewed upto 07.10.1969 and as per the prosecution case father of the petitioner died before 15 years back from the date of alleged recovery of rifle. Meaning thereby upto 1974, the said rifle was in possession of late Jeevan Ram - father of the petitioner. Thus, from the year 1969 to 1974 also the license was not renewed. Lastly, it is contended by the learned Counsel for the petitioner that both the Courts below have committed error while accepting the prosecution case with regard to recovery of said rifle from exclusive and rightful possession of the petitioner. Therefore, both the judgments passed by trial Court as well as learned appellate Court are totally erroneous. It is also contended by the learned Counsel for the petitioner that as per the statement of Anchi DW-1 - wife of late Jeevan Ram and mother of the petitioner, that four sons of late Jeevan Ram are alive and all of them are living together. It is also stated by her in her statement that said rifle was given by her to the police. Meaning thereby, learned trial Court has failed to rely upon the statement of Anchi - DW-1, who has specifically stated before the Court that the said rifle was handed over by her to the police. Therefore, the judgment rendered by the learned trial Court is totally contrary to the basic principles of law with regard to exclusive possession of recovered rifle from the petitioner Admittedly, all the legal heirs and wife of. late Jeevan Ram were residing in one house, then, how only the petitioner can be held responsible. Therefore, the judgment passed by learned trial Court deserves to be quashed and set aside. However, with regard to the judgment rendered by learned appellate Court, it is contended by the learned Counsel for the petitioner that in Para-11 of the said judgment, learned appellate Court has given finding that there is no dispute that the petitioner is eldest son of late Jeevan Ram and being the eldest son, he is responsible and guilty for committing offence under Section 25 (1-B) (h) of the Arms Act. Such finding is totally erroneous. It was the duty of the appellate Court to see as to whether the prosecution has proved its case beyond reasonable doubt with regard to exclusive possession of the petitioner over the said recovered rifle. As per the evidence, the prosecution has failed to establish that only the petitioner was in exclusive possession of the said recovered rifle. It is also obvious that it is nowhere established by the prosecution evidence that only the petitioner was responsible for depositing the said rifle after the death of Jeevan Ram and in absence of such an evidence, both the Courts below have committed error while convicting the petitioner for offence under Section 25 (1-B) (h) of the Arms Act. Learned Counsel for the petitioner has also contended that the petitioner was to be given benefits of probation but it was wrongly denied to him without assigning any reasons by the learned trial Court. At the time of committing alleged offence, the petitioner was 57 years of age and the occurrence took place in the year 1989 and we are running in 2006. meaning thereby, near about 17 years have passed and the petitioner is a poor villager and there is no allegation against the petitioner that he has misused the said rifle after death of his father till the recovery on 18.08.1989.