EMPEROR Vs. CHOKHEY

JUDGEMENT

(1.) Chokhey was convicted by a Magistrate on a charge under Section 19(f), Arms Act, and was sentenced to rigorous imprisonment for 18 months. He appealed to the Sessions Judge, who allowed his appeal and set aside the conviction. The Local Government has appealed to this Court from the" order of acquittal. It appears that a man named Bihari gave information about certain burglaries and dacoities and implicated the respondent who was thereupon arrested. The respondent gave certain information, to Nasir Ali Khan, the Sub-Inspector of Shikohabad, and took him to a place near a cabin of the railway station at Shikohabad. He then dug up the ground at that spot and produced a gun. The recovery note was attested by certain persons, including Pt, Chheda Lal, who came into the witness box and gave evidence. The only two witnesses in the case were the Sub-Inspector and Pt. Chheda Lal. The respondent denied having been in possession of the gun or having produced it, but was unable to explain why he had been implicated. The learned Judge observes: So far as the facts of the recovery of the gun are concerned, I think that it has been sufficiently established in this case. But I think that the conviction of the appellant is not sustainable on legal grounds. As provided by the Arms Act, the unlicensed arm should have been found in the possession and control of the accused in order to convict him under Section 19(f), Arms Act. The place from which the gun -was recovered was not in the possession of the accused. It was recovered from the railway premises within the railway fencing It was a place accessible to the public and a path was running close by. Anyone else could have taken away the gun by digging out the ground. Hence it could not be said to be under his control. It is possible that someone else within-the knowledge of the accused might have concealed the gun there, and so the mere knowledge of the concealment of an unlicensed gun could not bring him under the purview of the law.

(2.) The learned Judge, relying on three reported cases, proceeded to allow the appeal and acquitted the respondents Those cases are Gian Chand V/s. Emperor AIR 1933 Lah. 314 : 146 Ind. Cas. 232 : 34 Cr. LJ 1256 : (1933) Cr. Cas. 548 : 6 BL 195, Lakhan Singh V/s. Emperor 35 Cr. LJ 973 : 149 Ind. Cas. 533 : AIR 1934 Oudh 200 : (1934) Cr. Cas. 587 : 11 CWN 534 : 6 RO 572 : 9 Luck. 607 and Kaul Ahir V/s. Emperor . The ratio decidendi in those cases was that when a weapon is found on premises occupied by several persons, no individual from among them can- be , convicted under the Arms Act unless it is proved that the weapon: thus found was in his own particular possession or control. In none, of the above-mentioned cases was there any. question of the. applicability of Section 27, Evidence Act. In the case which is now under appeal the applicability of that section is vitally in question, but it has been tot ally overlooked by the learned Judge. Sub-Inspector Nasir Ali- Khan states that Chokhey had informed him that he had a gun which he had buried in the ground near a cabin of the railway station at Shikohabad and he then took the Sub-Inspector to that place and unearthed the gun. "That he did give such information to the Sub-Inspector is in the circumstances Very probable and we can find1 no good reason to disbelieve the Sub-Inspector i on this point. That the respondent dug up the gun is conclusively proved by the evidence of this Police Officer and Pandit Chheda Lal. It is, however, contended on behalf of the respondent that the statement which led to the recovery of the weapon is not admissible in evidence as against the respondent and that all that is therefore proved against him is that he knew the whereabouts of the gun. It is argued that this will not suffice for a conviction and that the view taken by the Judge is correct. We find ourselves unable to agree with this contention.

(3.) In Queen-Empress V/s. Naha 14 B 260 a certain person was charged under Section 411, Indian Penal Code, with having dishonestly received stolen property. He informed the Police that he had buried the property in a field and he then took the Police Officials to the spot and with his own hands unearthed a pot which contained the property. It was held by a Full Bench of the Bombay High Court that the accused's statement that he had buried the property in a field was admissible under Section 27, Evidence Act, inasmuch as it set the Police in motion and led to the discovery of the property. The next authorities with which we shall deal are from the Punjab. In Isher Singh V/s. Emperor 33 Ind. Cas. 823 : AIR 1916 Lah. 228 : 17 Cr. LJ 183 : 72 PLR 1916 : 50 PWR 1916 Cr., the accused told the Police that he had buried a weapon in his field and he then took the Inspector of Police and other persons to that field and dug out a revolver. It was held by a Bench of the Punjab Chief Court, that the accused's statement that he hid buried the revolver was admissible in evidence. The case in Queen-Empress V/s. Nana 14 B 260 was referred to and followed In Ali Ahmad V/s. Emperor AIR 1923 Lah. 434 the accused persons stated that they had buried certain weapons and in consequence of that information the said weapons were discovered; and it was held by a learned Judge of the Lahore High Court that the information so given was admissible under Section 27, Evidence Act. The case in Isher Singh V/s. Emperor 33 Ind. Cas. 823 : AIR 1916 Lah. 228 : 17 Cr. LJ 183 : 72 PLR 1916 : 50 PWR 1916 Cr. was followed. In Naurang Singh V/s. Emperor AIR 1927 Lah. 900 : 100 Ind. Cas. 122 : 28 Cr. LJ 250 : 28 PLR 626 :.9 Lah. LJ 211 a revolver, v as found in a well which the accused had pointed out to the Police as being the place in which he had thrown the weapon. It was held that when- an article, the possession of which is forbidden by the Arms Act, has been discovered by reason of information given by an accused person, his conviction based upon that evidence is Valid. The case in Isher Singh V/s. Emperor 33 Ind. Cas. 823 : AIR 1916 Lah. 228 : 17 Cr. LJ 183 : 72 PLR 1916 : 50 PWR 1916 Cr. was again referred to and followed.