BHEKHA AHIR Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision on behalf of one Bhekha Ahir aged 65 years, who has been convicted by the Courts below under Section 19(f), Arms Act, and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 100 and in default, to suffer further rigorous imprisonment for two months.

(2.) The prosecution case shortly stated is that on certain confidential information received by the local police, the house, consisting of several rooms, occupied by the petitioner and his three sons and a nephew as also their respective wives was raided by the Sub-Inspector of Police of Piro Thana. On a search being made of the house in presence of two search witnesses, a double-barrelled breach-loading gun was recovered from a north facing room of the house. The gun was found in a rusty and broken condition concealed in a kothila (a small earthen granary) which was covered with an earthen lid on its top. It is also to be noted that the petitioner being the eldest male member in the family, has rightly been deemed to have been the karta and leading member thereof. It was he who produced the key with which the lock in the room was opened. It was admitted at the trial that this key he produced after taking it from his daughter-in-law. A first information report was drawn up on the basis of the police fard-bayan. On 5-10-1945, the petitioner, his three sons and his nephew, all the five were produced in custody before the learned Sub-divisional Magistrate of Arrah. Though a bail of Rs. 400 for each one of those five persons was granted on the same date, the accused persons do not appear actually to have been released on bail. I find from the order of the learned Sub-divisional Magistrate that on four different dates, in the months of October and November, the police were not able to produce something (not absolutely clear from the record) and nothing was done. On 1-12-1945, charge-sheet was received from the police. On that date the learned Magistrate passed the following order: "Charge-sheet received against accused persons. Cognizance taken. To my file for disposal." The case was adjourned to 22-12-1945, but on that date, for reasons not explained, the police did not produce the accused persons, and, therefore, the trial had to be adjourned till 4-1-1946. The case was tried from time to time on six different dates, and judgment was ultimately delivered on 1-4-1946. The learned Magistrate convicted the petitioner on the ground that he was the karta of the family. In this connexion the learned Magistrate has made the following significant observations: The weight of the evidence, therefore, shows that all the accused lived jointly. The next point that arises is whether in such circumstances all the accused can be held criminally liable for possessing the gun or only the head man. There is no clear evidence on the record to show as to which of these accused had kept the gun in question there. In the circumstances, as has been held in previous judicial decisions, the head man of the family alone can be held to be liable. In this case the head of the family is accused Bhekha Ahir. In this view of the matter the learned Magistrate convicted and sentenced Bhekha Ahir as stated above, but acquitted the other four accused persons.

(3.) Before proceeding further, I must observe that the police in this case have not only been negligent but rather oppressive to the family of the petitioner. Their house was searched and a broken gun recovered from there. The police at once sent up all the five accused persons to Court without making up their mind as to which one of them is to be proceeded against, and all the male members in the family of the petitioner appear to have been in custody from 3 November until judgment was delivered by the learned Magistrate on 1-4-1946. It is rather regrettable that the entire family should have been proceeded against and kept in custody because the police officer in charge of the investigation was not able to make up his mind as to which one of them was the real culprit.