BIHARI SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant application is directed against the judgment dated 24th July, 2006 passed by the learned 1st Additional Sessions Judge, Latehar in Criminal Appeal No. 43 of 2005, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence, both dated 24th August, 2005 passed by the learned Chief Judicial Magistrate, Latehar in G.R. Case No. 10 of 2002 corresponding to T.R. No. 148 of 2005, whereby the learned trial court held the petitioners guilty for the offence under Sections 25(1-B)a, 35 of the Arms Act and acquitted them from the charge under section 26 of the Arms Act and directed them to undergo R.I. for two years with fine of Rs.500/each, has been affirmed,

(2.) The prosecution case, in brief, is that, on 08.01.2002, the informant proceeded for conducting raid in another case and in course of raid mission the informant received a secret information that the accused was roaming with muzzle loading gun, thereafter, search was made in the house of the accused and on search one muzzle loading gun was recovered from the bedroom of the accused.

(3.) Mr. J. S. Singh, learned counsel for the petitioners submit that the impugned judgment suffers from error in as much as the seizure list witness (P.Ws. 6 and 7) has categorically stated that no seizure has been made in their presence. He further submits that nothing incriminating has been seized nor any material used in gun was recovered from the place of occurrence and only one country made gun with long barrel has been recovered. He further submits that it was an obsolete gun which was being used by the accused persons as lathi. He further contended that Section 45 of the Arms Act stipulates that no provision of Arms Act shall apply in the cases mentioned in the said section. Section 45 (C) mentions about obsolete gun. He further contended that the prosecution though submitted the ballistic report before the Court and the same has been accepted, but the ballistic expert was not examined and the ballistic report has been proved by the informant himself and as such the same has caused heavy prejudice to the petitioners in the backdrop of the fact the specific claim of the petitioners are that the seized article was obsolete gun and was being used as Lathi, whereas the report of the Ballistic expert mentions about smell of explosive from the said seized article even though there was no report of any firing as such his examination was necessary and no opportunity was afforded to the petitioners to cross-examined the expert.