Patna High Court
Butani Dusadh vs State Of Bihar on 27 January, 1988
Equivalent citations: 1988(36)BLJR323
JUDGMENT Bimalendu Narayan Sinha, J.
1. This application in revision is directed against the judgment and order passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Cr. Appeal No. 193/45 of 1981/82 confirming the judgment of conviction passed by Sri P. K. Siaha, Judicial Magistrate, 1st Class Sasaram in G. R. Case No. 2026/80 940/81 convicting the accused petition under Section 25 of the Arms Act and sentencing him to undergo R/I for one year.
2. The facts of the case relevant for disposal of this application, shortly stated, are that on 1-9-1930 during the course of investigation of a case in respect of loot of Rs. 22,500/- of Education Department it was confidentially learnt that the clothes and the arms of the accused concerned of that case have been kept concealed in the house of this accused petitioner. Consequently, P.W. 8 Abhayanand along with P. W. 3 Brij Nandan Rai, S. I. and P. W. 9 Ajit Kumar Jha, Officer I/C of Sasaram Police Station organised a raiding party to search the house of accused petitioner and on the same day at 3 P. M. the house of accused-petitioner was searched in resence of P. W. 4 Yadunandan Singh and P. W. 5 Ram Pyare Singh and one country made gun, one country made pistol, a small gun like pistol 4 rifle bullets, 4 live cartridges and one empty Rifle bullet were recovered from the south-west corner of the east facing house of the accused petitioner situated at village Barki Pharparwa P. S. and District Sasaram. Those articles were seized in presence of those two witnesses and a seizure list was prepared. A written report (Ext.-1) was submitted reading the same at the Sasaram Police Station on the basis of which Exhibit-2, a formal first information report was recorded.
3. After usual investigation the Police submitted charge-sheet against this accused-petitioner and two more accused-persons who were acquitted by the trial Court.
4. All the three accused pleaded not guilty to the charge and claimed to be tried and their defence was that they have been falsely implicated in the case. The co-accused Rajkeshwar Dusad was tried with this accused petitioner happens to be the son of this accused-petitioner.
5. Altogether 11 witnesses were examined by the prosecution. Out of them P. Ws. 3, 8 and 9 deposed regarding the alleged search and recovery of the fire arms and ammunitions from the house of the petitioner. P. W. 4 and 5 deposed as witness on search, recovery of those article 10 and seizure thereof. P.W. 7 Bhandari Manjhi Sergeant Major who had examined those arms and cartridges and submitted his report. P. W. 6 Ram Naresh Tiwary, P. W. 10 Hiraman Singh and P.W. 11 Daya Nand Upadhayay were tendered. P. W. 1 Gulab Chand Ram and P. W. 2 Suryadeo Singh are formal witnesses.
6. Both the courts below, after taking into consideration the evidences produced on behalf of prosecution found the charge framed against this accused petitioner fully established.
7. The learned Counsel for the petitioner has assailed the judgment of the trial Court mainly on the ground that on the evidence produced on behalf of the prosecution, it is not proved beyond reasonable doubt that this accused-petitioner had any knowledge of the arms and ammunition said to have been recovered from his house and, therefore, it cannot be said that he was in conscious possession of those articles.
8. The prosecution case is that those fire arms and cartridges were found concealed in the south-west corner of the east facing house of the accused petitioner in the heap of cow dung cakes. The prosecution evidence is that at the time of alleged search the accused-petitioner was present in his house. On these materials both the courts below have come to a finding that those articles had been concealed there with the knowledge of the accused petitioner and as the house belongs to the accused petitioners, the accused-petitioner was in possession of those articles. But as it appears, it has been rightly submitted by the learned Counsel for the petitioner that in these circumstances alone it cannot be said to have been proved beyond reasonable doubt that the accused petitioner had knowledge of those fire arms and cartridges concealed in the heap of cow during cakes. It appears from the judgment of the appellate Court that a co-accused Rajeshwar Dusadh who was acquitted was living with this petitioner in the same house. It also appears so from the evidence of P.W. 2 whose evidence is that this accused-petitioner had 2 to 3 (sic.) and they were residing with the accused-petitioner.
9. There is no material in the prosecution evidence of any of the P.Ws. that this accused petitioner had concealed those fire arms and cartridges or that those fire arms and cartridges had been kept concealed in the heap of cow dung cakes with the knowledge of the accused-petitioner. Merely because the accused-petitioner was present at the time when the room was searched, it cannot be presumed that he had knowledge of those articles. The house of the accused-petitioner was searched and his presence in his house was quite natural. Unless it is established on the evidence produced on behalf of the prosecution that the accused-petitioner had knowledge of those articles in the room he cannot be held guilty for the offence. I am fortified in my view by a decision of the Hon'ble Supreme Court, reported in, Pabitar Singh v. State of Bihar (1).
10. For these reasons I find that the conviction and sentence passed against the accused-petitioner cannot be sustained.
11. I accordingly allow this application, set aside the conviction and sentence passed against the accused-petitioner and he stands discharged of his bail bonds.