Punjab-Haryana High Court
Bijender Singh vs State Of Haryana on 28 November, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-24-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.D-24-DB of 2010.
Date of Decision: November 28, 2014.
Bijender Singh
..........APPELLANT(s).
VERSUS
State of Haryana
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Rishi Malhotra, Advocate
for the appellant.
Mr. Baldev Singh, Addl.A.G. Haryana.
*******
SURINDER GUPTA, J.
This appeal has been preferred against judgment of conviction dated 17.12.2009 and order of sentence dated 21.12.2009 passed by Sessions Judge, Bhiwani, whereby appellant was convicted for offences punishable under Sections 302 of Indian Penal Code (for short 'IPC') and 27 (1) of Arms Act, 1959 and sentenced as follows:-
Convicted for the offence Sentence
punishable under Section Rigorous Imprisonment Fine
302 IPC For life `20000 in default of payment
of fine to further undergo
rigorous imprisonment for
two year.
27(1) Arms Act, 1959 Three years `10000 in default of payment
of fine to further undergo
rigorous imprisonment for
SACHIN MEHTA
six months.
2014.12.09 17:15
I attest to the accuracy and
authenticity of this document
Chandigarh
CRA-D-24-DB of 2010 -2-
An FIR No.177 dated 02.10.2008 was registered at Police Station Badhra, District Bhiwani on the statement of complainant Satyawati wife of Bije Singh @ Sanjay. In her statement (Ex.P15), she had stated that her husband has three brothers namely, Bijender (appellant), Ved Parkash and Rajbir. Her husband wanted to sell two killas of land of his share but appellant Bijender was stopping him from doing so. The appellant along with his family was residing at Rajgarh (Rajasthan) and was a member of Panchayat. He had come to the village for the last three days prior to occurrence. On 02.10.2008, husband of complainant had gone to Dadri in connection with sale of his land and returned home at 06.00 p.m. After taking meal, at about 08.30 p.m., he was rinsing his mouth, when appellant Bijender came from the adjoining house and asked Bije Singh not to sell his share of land, at which Bije Singh apprised him that he had already settled transaction for sale of his share of land. This led to exchange of hot words between them. The appellant went inside giving threat to teach a lesson and brought a gun. He fired two shots, hitting her husband, who died at the spot. Thereafter, appellant asked complainant not to report the matter to police and allured to keep her as his daughter, but at the same time threatened that in the event of matter being reported, she will also be killed. On hearing the sound of gun-shots, Rajbir elder brother of husband of complainant and his wife Anita came rushing to the spot and on seeing them, appellant ran away from the spot.
Rajbir gave the information to Hawa Singh, Sarpanch of village, who further informed the police on telephone. Inspector Krishan SACHIN MEHTA 2014.12.09 17:15 Lal, reached the spot and recorded statement of complainant Ex.P15, made I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -3- his endorsement Ex.P32 on the statement and sent it to police station, where formal FIR Ex.P16 was recorded. He inspected the dead body and a pair of slipper (Chappal) stained with blood, lying at the spot was taken into possession along with blood stained earth vide recovery memo Ex.P21. He prepared inquest report Ex.P20 and sent dead body to General Hospital, Bhiwani for post-mortem examination. The appellant was apprehended on the passage running between village Dagroli and village Aun. Pursuant to his disclosure statement (Ex.P23), appellant got recovered his double barrel gun, five live cartridges, two empty shells and his gun licence which were put in a parcel and taken into possession vide recovery memo Ex.P24.
Post-mortem examination of deceased Bije Singh @ Sanjay was conducted by Dr. Naresh Kumar Verma (PW9) along with Dr. Randeep Singh Punia. They found following injuries on the person of deceased:-
"(1) There were two entry wounds with inverted margins with blackening and greasy margin placed obliquely on the right side of nose, oval shaped, measuring each 3 X 2 cms with a thin skin partition with blood clots present on the normal site and also on the body and clothes (pant). Dead body was x-rayed and found multiple pellets on the x-ray seen. On further dissection, no distinguished track was found although multiple pellets with 'khol' covers of the 'kartus' non-radio opaque received and sealed."
The doctor (PW9), opined that the death was caused due to injury on the vital organ i.e. brain, as a result of fire arm injury, which was sufficient to cause death in ordinary course of nature. Post-mortem examination report Ex.P19 was prepared. A parcel containing clothes of the SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -4- deceased was prepared and sealed with five seals. Multiple pellets, kartoos covers recovered from the body of the deceased were also put in a container and sealed. Both these parcels were handed over to the police.
The blood stained earth, chappal (Hawai) lifted from the place of occurrence, blood stained clothes of the deceased, pellets, one plastic air cushion 'wad' taken from the body of the deceased, double barrel gun, two fired cartridges and five live cartridges were sent to the Forensic Science Laboratory (for short 'FSL') where after laboratory examination, report Ex.P35 was given as follows:-
" RESULT
1. The firing mechanism of .12 bore DBBL gun marked W/1 was found in working order.
2. The .12 bore fired cartridge cases marked C/1, C/2 have been fired from left and right barrels respectively of .12 bore DBBL gun marked W/1and not from any other firearm even of same make and bore, because every firearm has got its own individual characteristics marks.
3. The pellets and plastic air cushion wad contained in parcel No.IV are normally loaded in shotgun cartridges including .12 bore."
After completion of investigation, final report under Section 173 (2) Code of Criminal Procedure (for short 'Cr.P.C.') was submitted before Court of Sub Divisional Judicial Magistrate, Charkhi Dadri. Copies of final report and documents relied on by the prosecution were supplied to the appellant and the case was committed to the Court of Sessions for trial as the final report and documents attached disclosed commission of offence punishable under Section 302 IPC.
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The trial of the case was conducted by Sessions Judge, Bhiwani. Vide order dated 28.11.2008, charge for offence punishable under Section 302 IPC and 27(1) of Arms Act, 1959 was framed against appellant to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Patwari Ramjas as PW1, who had prepared the site plan Ex.P1 of the place of occurrence; Ved Parkash, Photographer as PW2, who had gone to the spot and taken photographs Ex.P2 to Ex.P4 of the dead body; Ram Kumar, Arms Licence Clerk, office of Deputy Commissioner, Bhiwani as PW3, who proved gun licence Ex.P8 in name of appellant on which .12 bore gun recovered in this case, bearing No.4427-07 had been entered. Rajbir, brother of appellant appeared as PW4 but he did not support prosecution case and turned hostile. He has stated that appellant was not present in village Dagroli on the day of occurrence and was away to Rajgarh. Hawa Singh, Sarpanch of village Dagroli PW5 and Prem Singh PW6, cousin of deceased also turned hostile and did not support the prosecution case. Complainant Satyawati appeared as PW13. She was declared hostile, but in cross-examination, she supported the prosecution case to a large extent. The prosecution examined formal witnesses Constable Ranbir Singh as PW7 and Head Constable Rattan Singh as PW11. ASI Ram Avtar, who had recorded the FIR Ex.P16 appeared as PW8. Sub Inspector Roshan Lal, who associated Inspector Krishan Lal in the investigation of the case, appeared as PW10 and Inspector Krishan Lal, Investigating Officer, was examined as PW12.
On conclusion of prosecution evidence, entire incriminating SACHIN MEHTA 2014.12.09 17:15 circumstances appearing against the appellant, were put to him in his I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -6- statement under Section 313 Cr.P.C, which he denied and stated in his defence as follows:-
"I am innocent. I have no reason to kill my own brother. I used to reside in Rajgarh (Rajasthan) with my wife and children. I had visited village Dagroli 10-15 days prior to the occurrence. I was not present on the day of occurrence in village Dagroli. After receipt of telephonic message from my brothers, I came to village Dagroli after the murder of my deceased brother and was falsely arrested by the police in this case. My double barrel gun was lying in the house of my brother. Two persons came to the house of my brother and fired at my brother Vijay Singh and threw the same in his house after firing."
The appellant did not examine any witness in his defence. On completion of trial and after hearing learned Public Prosecutor and learned counsel for appellant, the trial Court convicted and sentenced the appellant as mentioned in opening para of this judgment.
Learned counsel for appellant has argued that this case is not based on any evidence. The witnesses examined by the prosecution have not supported its version and have turned hostile. It was a case of blind murder of deceased Bije @ Sanjay, which the police has tried to plant on the appellant by turning it into an eyewitness account case. Appellant was residing at Rajgarh (Rajasthan). The recovery of his gun has been shown from field of the appellant which is highly doubtful, particularly when the prosecution witnesses have stated that gun was thrown at the spot by assailants who killed Bije @ Sanjay. Motive of occurrence as alleged by prosecution is not proved. There is no evidence of any joint land of parties SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -7- and that deceased was going to sell his share of land against the wishes of appellant. The defence of appellant is that he had come to his village about 10-15 days before the occurrence. His double barrel gun was lying in the house of his brother. Two persons came to his brother's house, fired at the deceased and threw the gun in his house after firing. This version of appellant has been supported by the prosecution witnesses and there is no reason to disbelieve them. The FSL report which was not put to the appellant in statement under Section 313 Cr.P.C., as such, could not be used against him.
Learned State counsel has argued that while appreciating the evidence, this Court has to look into the fact that eyewitnesses of occurrence are closely related to the appellant. Eyewitness Rajbir (PW4) is brother and Prem Singh (PW6) is the cousin of the appellant. Both have not supported the prosecution case. Satyawati wife of deceased belongs to village Radha Nagar, District Bilonia (Tripura). The hapless lady left for her parental house at Tripura after the death of her husband where she resided with her mother. She resided with the wife of appellant for four months after the murder of her husband. Though she was declared hostile but when cross- examined, she supported the case of prosecution and her statement could not be shattered in cross-examination by the counsel for appellant. The death of deceased was with the gun-shot injuries and bullets were fired from the gun of appellant. The appellant has not led any evidence to prove his plea of alibi. The statement of Satyawati (PW13) wife of deceased when read with medical evidence and report of FSL, prove beyond doubt that appellant had SACHIN MEHTA 2014.12.09 17:15 murdered her husband.
I attest to the accuracy andauthenticity of this document Chandigarh CRA-D-24-DB of 2010 -8-
We have considered the submissions of learned counsel for the appellant, learned State counsel and have carefully perused the record.
Firstly, we take the plea raised by learned counsel for the appellant that the report of FSL Ex.P35 was not put to the appellant when his statement under Section 313 Cr.P.C. was recorded and as such, could not be read in evidence against him. To support his contention, he has relied upon Asraf Ali Vs. State of Assam (2008) 16 SCC 328, wherein the Hon'ble Supreme Court has observed as follows:-
"21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial."
Admittedly, the FSL report Ex.P35 was not put to the appellant when his statement under Section 313 Cr.P.C. was recorded. But at the same SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -9- time, neither any objection was raised before the trial Court nor any specific plea has been taken as to what prejudice has been caused to the appellant for the failure on the part of the appellant in not confronting him with the FSL report. However, we do not intend to ignore this lapse on the part of the trial Court and intend to provide an opportunity to the appellant through his counsel to explain this incriminating evidence against him. We find support for our endavour to rectify the lapse of the trial Court from the observations of the Hon'ble Supreme Court in case State of Punjab Vs. Naib Din (2001) 8 Supreme Court Cases 578. In that case also, a report of Chemical Examiner was not put to the appellant. The observations of Hon'ble Supreme Court in para 13, 14 and 15 of above referred case are reproduced for reference as follows:-
"13. How is it possible to rectify or undo the lapse if it pertains to a vital piece of evidence?
14. A three-judge bench of this Court has observed in Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2 SCC 793 that such an omission does not ipso facto vitiate the proceedings unless prejudice was established by the accused If the accused succeeds in showing any prejudice it is open to the appellate court to call upon the counsel for the accused to show what explanation the accused has got regarding the circumstances not put to him.
15. In Basavaraj Patil vs. State of Karnataka (2000) 8 SCC 740 a three-judge bench has followed the aforesaid observation and stated thus:
'17. The above approach shows that some dilution of the rigour of the provision can be SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -10- made even in the light of a contention raised by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.' "
It was observed by Hon'ble Supreme Court that "if any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse."
During the course of arguments, we put a specific question and sought the answer from the counsel for the appellant to explain the incriminating evidence i.e. the report of FSL (Ex.P35) to which learned counsel for the appellant gave the routine answer "it is incorrect". As the lapse on the part of the trial Court while recording statement of appellant under Section 313 Cr.P.C. has been rectified, the argument of learned counsel for the appellant to this effect has become redundant. Even otherwise, it is admitted that the gun of appellant was used in the occurrence. The FSL report is only an evidence of connecting the gun with the occurrence. In such circumstances, no prejudice can be alleged to have been caused to appellant, due to the lapse of trial Court in not confronting him with FSL report contents.
SACHIN MEHTA2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -11-
It is a case where the material witnesses except the complainant have turned hostile. Rajbir eyewitness while appearing as PW4 has stated that appellant was not present in village Dagroli on day of occurrence. He has, however, stated that he and his three brothers owned two killas of land each. Regarding the licensed gun of appellant, he has stated that it was lying in the house of Bije Singh deceased. PW5 Hawa Singh, Sarpanch, had reached the spot after he was informed about the death of Bije Singh. PW6 Prem Singh has stated that when he reached the spot on hearing sound of gun shots, he witnessed two unknown persons running after firing at Bije Singh. All these three witnesses were declared hostile, confronted with their statements made to the police which they did not support.
The complainant in this case is the wife of deceased namely Satyawati (PW13). She was resident of District Bilonia (Tripura). She has stated that her husband had two acres of land. He was shot dead but she could not see who had fired at him as she had gone to answer the call of nature. She was declared hostile and when allowed to be cross-examined by the prosecution, she supported the prosecution case and stated as follows:-
"After death of my husband, I gave statement to the police. I told the police that my Jeth (brother-in- law) Vijender present in the court today shot dead my husband. I also told the police that there used to remain dispute in between my husband and accused Vijender.
Dispute was going on in between them since so many days. My husband Vijay Singh was willing to sell the land and accused Vijender was asking him not to sell the land. It is incorrect to suggest that I was present when accused Vijender shot at my husband. I told the police that SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -12- accused threatened me with life in case this fact is disclosed to police. After four months of murder of my husband, I went to Tripura. I am residing with my mother. For four months, I resided at Dagroli with the wife of accused Vijender."
She has stated that above statement had been given by her without any threat or pressure. Here a question which arises for consideration is as to why this witness will depose falsely. She had admitted her statement made to the police. She has categorically stated that the police was apprised about killing of her husband by the appellant. Her statement about the land dispute between her husband and the appellant is unrebutted. The motive factor stands proved by her while stating that the appellant was asking her husband not to sell his share of the joint land. She has also told the police that appellant had threatened her life in case of disclosure of above facts to the police. Though, she has tried to toe the defence version while stating that she had gone to answer the call of nature at the time of incident, but the whole tone and tenor of her statement prove beyond doubt that she had witnessed the appellant killing her husband. She is an independent and reliable witness, who had no motive either to falsely implicate the appellant or to spare the real culprit who killed her husband.
The other very vital evidence in this case is use of licensed gun belonging to the appellant to fire the shots resulting in the death of Bije Singh. As per FSL report, the double barrel .12 bore gun of the appellant was in working order. The empties recovered on the basis of disclosure statement of appellant, were fired from the left and right barrel of the gun. The pellets SACHIN MEHTA 2014.12.09 17:15 and plastic air cushion wad recovered from the body of the deceased are I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -13- normally loaded in shot gun cartridges including .12 bore. The cause of death of deceased was due to firearm injuries. The double barrel .12 bore gun was recovered from the field of appellant on the basis of his disclosure statement Ex.P23. As already discussed, the use of gun of appellant in the occurrence is admitted.
The appellant was arrested on 02.10.2008 i.e. on the next day of the occurrence at about 3.00 p.m. from kacha path in between villages Dagroli and Aun. The recovery of double barrel gun of .12 bore, five live cartridges and two empties, gun license in cover in which gun was kept, was effected on the basis of disclosure statement of appellant Ex.P23. He had kept all these articles under a Janti tree in a field where Gawar crop was growing. The defence by the appellant that he was not in the village Dagroli and was present at village Rajgarh(Rajasthan) on the day of occurrence gets demolished by a suggestion to PW10 SI Roshan Lal who was part of investigating police party that the appellant was arrested on 01.10.2008. The occurrence had taken place at about 8.00 p.m. on 1.10.2008 and not on 02.10.2008. The telephonic message was received by the police at about 09/9.30 p.m. After covering a distance of 10 to 12 kilometres, police reached the spot at 11.00 p.m. If the appellant was at village Rajgarh (Rajasthan), he could not be arrested on the same day, as suggested to PW10 Roshan Lal.
Learned State counsel has referred the statement of appellant recorded by the trial Court on the quantum of sentence wherein the appellant has stated as follows:-
"........................... Actually, Vijay Singh wanted to kill PW Satyawati and for that purpose he took my gun.SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -14-
When I was trying to save her, shot was fired from the gun and hit Vijay Singh."
Learned State counsel has argued that the appellant has admitted his presence and death of Vijay Singh with the gun shot fired from his gun.
The above argument of learned State counsel is not helpful to the prosecution in proving its case. Firstly, because the statement of appellant recorded at the time of quantum of sentence is neither an admission nor a confession, secondly, it was recorded after his conviction, as such, is not a piece of evidence, which can be read against him.
Learned counsel for the appellant has argued that delay of four hours in reporting the matter to the police create suspicion regarding the genuineness of the prosecution version. This delay has not been explained.
The above argument of learned counsel for the appellant is without merit. The occurrence had taken place at about 08.30 p.m. The brother of deceased-Rajbir, as per the complaint Ex.P15 came to the spot. The village Sarpanch was informed who gave the information to police. SI Roshan Lal PW10 has stated that police reached the spot at about 11.00 p.m. and recorded the statement of complainant. After such a traumatic incident, it takes time to gain senses, reconcile and then to take further action of reporting the matter to the police. In this case also, firstly, the village Sarpanch was informed who came to the spot and then informed the police and then police took some time to reach the spot and immediately recorded the statement of complainant. FIR was also registered at Police Station Badhra at about 01.30 a.m. on 2.10.2008. There was, as such, no substantial delay which can be termed as fatal or which has resulted in giving a coloured SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -15- version of the occurrence. The appellant is named in the FIR. The witnesses cited in the FIR are none-else, but brother and sister-in-law of the appellant. The complainant is a lady from Tripura who was married with the deceased and after death of her husband had to go back to her mother to do labour for her livelihood, as such, it cannot be said that the complainant was either influential or powerful.
The testimony of complainant which finds corroboration from the medical evidence and report of FSL and the facts and circumstances discussed above, prove beyond doubt the charge for offence under Section 302 IPC framed against the appellant.
The appellant has also been convicted for the offence punishable under Section 27 of Arms Act, 1959. The allegation against the appellant is that he had fired a shot from his licensed gun which proved fatal and resulted in death of his brother Bije Singh @ Sanjay. Section 27 Arms Act, 1959 [after amendment by Act 42 of 1988 (w.e.f. 27th May 1988)] reads as follows:-
"27. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -16- ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death."
The weapon used by the appellant was not a prohibited weapon, as such, under Section 27 (1) of Arms Act, 1959, he could be convicted and sentenced if he had used the arms or ammunition in contravention of Section 5 of the Arms Act, 1959, which reads as follows:-
"5. Licence for manufacture, sale, etc., of arms and ammunition.
(1) No person shall--
(a) use, manufacture sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
(2) Notwithstanding anything contained in sub-section (1) a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be so sold or transferred by any person unless--
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other SACHIN MEHTA arms, and 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -17-
(b) a period of not less than forty-five days has expired after the giving of such information."
A perusal of the above provisions makes it clear that it is the user of any fire-arm without licence which is barred. The above section also make provision for transfer of the arms and ammunition. The violation of neither of any provision of Section 5 of Arms Act, 1959 is attracted to the present case. Prior to 1988, the unamended provisions of Section 27 Arms Act were as follows:-
"27. Punishment for possessing arms,etc. with intent to use them for unlawful purpose. whoever has in his possession any arms or ammunition with intent to use the same for any unlawful purpose or to enable any other person to use the same for any unlawful purpose shall, whether such unlawful purpose has been carried into effect or not, be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."
As per the unamended provisions, possession with intention to use arm for unlawful purpose was punishable under Section 27 Arms Act.
Hon'ble Supreme Court, while dealing with similar matter, in case of Gyasuddin Khan @ Md. Gyasuddin Khan vs. State of Bihar reported in 2004 (1) R.C.R. (Criminal) page 402 has observed in paragraph No.22 as follows :-
"The conviction under Section 27 of the Arms Act cannot however be sustained. The gravamen of the second charge framed against the appellant is that he used the sten-gun and SLR for the unlawful purpose of killing the three persons. There is no evidence to the effect that weapon SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -18- used, namely, sten-gun, answers the description of 'prohibited arms' within the meaning of Section 2(1)(i) of the Arms Act. The report Sergeant Major to whom the weapons were sent was only to the effect that they were in working condition. There was no discussion whatsoever either by the trial Court or by the High Court in regard to the offence under Section 27. We are not inclined at this stage to probe further and address the question whether the sten-gun of Ram Pandey which was used in the commission of the crime is a prohibited arm within the meaning of Section 2(1)(i) though, in all likelihood, it may be. It is not appropriate to convict the appellant under Section 27 (3) in which the extreme punishment of death is provided for. Hence the conviction of the appellant under Section 27 of the Arms Act, 1959 is hereby set aside."
The above citation deals with clause 3 of Section 27 of Arms Act, but the fact remains that when the amended provisions of the Act are read as a whole in that case, the offence under Section 27 of the Arms Act in respect of Clause I shall accrue only if there is a violation of Section 5 of the Arms Act. Admittedly, the weapon used in this case was a licensed weapon belonging to the appellant. The prosecution has not made out a case that the appellant used the licensed weapon in violation of Section 5 and 7 of the Arms Act, 1959, as such, violation of Section 27 Arms Act, is not made out and the trial Court without looking into this aspect, has convicted the appellant under Section 27 of Arms Act, 1959 which is not sustainable in the eyes of law and liable to be set aside.
As a sequel of our above discussion, the present appeal is partly SACHIN MEHTA 2014.12.09 17:15 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-24-DB of 2010 -19- allowed. The conviction and sentence awarded to the appellant for the offence punishable under Section 302 IPC by the trial Court is affirmed. However, the conviction and sentence awarded to the appellant for the offence punishable under Section 27 Arms Act, 1959 is set aside.
( RAJIVE BHALLA) ( SURINDER GUPTA )
JUDGE JUDGE
November 28, 2014.
Sachin M.
SACHIN MEHTA
2014.12.09 17:15
I attest to the accuracy and
authenticity of this document
Chandigarh