IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 Crl.Rev.Pet.No. 512 of 2001() ----------------------------- {CRA.NO.226/1998 OF THE 1ST ADDL.SESSIONS COURT, ERNAKULAM IN C.C.NO.111/1995 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA} .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------------------------------- ANIYAN @ SANIL, S/O.BHASKARA MENON, AGED 40 YEARS, RESIDING AT THATTASSERIL HOUSE, KAKKOOR P.O., THIRUMARADY, ERNAKULAM DISTRICT. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.K.JOSE KURIAKOSE RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.512 of 2001 ------------------------- Dated this the 17th day of March, 2009. O R D E R The accused in C.C.No.111/95 on the file of the Judicial Magistrate of the First Class-II, Muvattupuzha, who was prosecuted, convicted and sentenced for the offence under Section 3, read with Section 25(1B)(a) of the Arms Act {for short “the Act”}, is the petitioner herein. He has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- with a default sentence of another three months. The conviction and sentence has been affirmed in the appeal and hence this revision. 2. The case of the prosecution, in brief, is that on 10.10.1992, the accused was seen by the side of the M.C.Road, in front of the State Bank of Travancore, Kothamangalam Branch with M.O.1 Revolver. On receiving information, PW.8 Sub Inspector of Police proceeded to the spot and on enquiry, it was found that the accused did not CRL.R.P.No.512 of 2001 :: 2 :: have any licence or authority to possess the revolver. He was arrested and M.O.1 revolver and M.Os.2 and 3 Cartridges were seized under Ext.P1 mahazar. PW.8 conducted the investigation. PW.9 Sub Inspector of Police, who succeeded him, filed the charge sheet. The accused denied the charges. 3. Pws.1 and 2 were cited as eye witnesses, stated to be present at the spot where from the accused is alleged to have found carrying M.O.1 Revolver and standing on the side of the M.C.Road at 5 PM on 10.10.1992. Pws.1 and 2 turned hostile and did not support the prosecution case. They completely denied having seen the incident. Pws.3 and 4 were cited as mahazar witnesses. PW.3 admitted his signature in the mahazar, but deposed that the mahazar was prepared at the police station. He was also declared hostile. PW.4 also admitted his signature in Ext.P1, but deposed that he had signed the mahazar at the police station. He further stated that when he signed the CRL.R.P.No.512 of 2001 :: 3 :: mahazar, there was nobody else standing in the police station and he did not see any firearm. He denied his knowledge regarding the contents of Ext.P1 mahazar. He further deposed that he did not see the accused being arrested by the police and further deposed that the police did not, thereafter, take his statement. PW.6 was given up by the prosecution and PW.7 Forensic Expert proved Ext.P2 report. The report goes on to say that M.O.1 revolver was not in a serviceable condition. It was not in working order. M.O.2 contained four live cartridges and M.O.3 contained two used cartridges. The firearm could not be used, as it was not in working condition. 4. PW.8 is the Investigating Officer and PW.9 is the successor to PW.8 who laid the charge sheet. 5. The trial court accepted the case of the prosecution and found that the offence has been proved against the accused. The same was affirmed by the lower appellate court. CRL.R.P.No.512 of 2001 :: 4 :: 6. Learned counsel for the petitioner contended firstly that the firearm, according to PW.7, was not in a serviceable condition. Therefore, it does not come within the definition of an 'Arm' under the Act. The possession of the same will constitute an offence under Section 3 of the Act. Reference is made in this regard to the decision of the Supreme Court in Jagjit Singh v. State of Punjab {1994(4) SCC 726} and Jaspal Singh v. State of Punjab 1998(7) SCC 289}. No doubt, the dictum laid down in the aforementioned decisions supports the proposition as advanced by the learned counsel for the petitioner. But, on closer scrutiny, it can be seen that in the first case, the Supreme Court found that the prosecution had not let in any evidence to show that the firearm was in a working condition as the ballistic expert was not examined. In the second case also, the Supreme Court held that no evidence was let in by the prosecution to prove that the gun was in a CRL.R.P.No.512 of 2001 :: 5 :: working condition and the cartridges which were found in the possession of the petitioner therein were live. 7. PW.7, the ballistic expert was examined in this case. He had examined M.Os.1 to 3 series. Even if his evidence regarding M.O.1 is accepted and I do not find any reason why it should be accepted. It will only mean that the possession of M.O.1 will not attract the provisions of the Act, because it was found to be in a non-working condition and the prosecution had not let in any evidence to show that even with minor repairs, it could have been converted into a serviceable revolver. But, this by itself will not save the situation for the accused, since the possession of ammunition by itself is an offence under Section 3 of the Act. The definition of 'ammunition' under the Act means ammunition for any firearms and includes charges for firearms and accessories for such charges, fuses, friction tubes. Live cartridges are, therefore, ammunition. M.O.2 series are live cartridges and therefore 'ammunition' within CRL.R.P.No.512 of 2001 :: 6 :: the meaning of Section 3 of the Act. PW.7 expert has deposed that he had tested the cartridges and found them to be live. There was no cross-examination on this aspect. 8. In the result, I am unable to accept the contention of the learned counsel for the petitioner that the provisions of the Act are not attracted even if the case of the prosecution regarding the recovery of M.Os.1 to 3 are proved. 9. Learned counsel for the petitioner then submits that the evidence regarding the recovery of M.Os.1 to 3 are shabby and at any rate, it would be unsafe to base a conviction on the sole testimony of PW.5. I have considered the evidence of PW.5 and it is necessary to refer to the evidence of PW.8 in some detail in this regard. As far as PW.5 is concerned, the Head Constable deposed that he was also present along with PW.8 when the accused was arrested. CRL.R.P.No.512 of 2001 :: 7 :: 10. Coming to the testimony of PW.8, he deposed that he had arrested the accused on 10.10.1992 at 5 PM while the accused was found to be in possession of the firearm and the ammunition. I agree with the learned Public Prosecutor that there is no law which says that the evidence of official witnesses by themselves cannot form the basis of conviction. But the question is whether the evidence of such officials inspire sufficient confidence in the mind of the court and in this regard, I am constrained to take into account a few aspects. 11. Even in the cross-examination of PW.5 the suggestion of the accused was to the effect that the firearm was possessed by one Prof.George of Kothamangalam Engineering College and it was seized from him when he was in a bar. The accused was also alleged to be in the bar. The suggestion was, therefore, that the case was falsely foisted on him. PW.8 admitted that he had taken a statement from the aforementioned Prof.George, who, CRL.R.P.No.512 of 2001 :: 8 :: according to him, stated that the firearm in question belonged to his friend; one Eldose. PW.8 also affirmed that the statement of Eldose was taken. Reference is made to one Karunakaran whose statement was taken by PW.8. What I find disturbing is the total absence of any attempt on the part of the prosecution to cite any of the aforementioned persons as witnesses. According to the witness, the firearm is an unlicensed one. It was apparently recovered from the accused when he was standing in a public place ie., by the side of M.C.Road at a very visible hour, 5PM. The witnesses cited by the prosecution as eye witnesses, Pws.1 and 2, turned hostile and refused to support the prosecution case. Pws.3 and 4 mahazar witnesses, while admitting their signatures in the mahazar, deposed that they had signed the mahazar at the police station. What was, therefore, left is the testimony of PW.5, insofar as PW.8 is concerned. One is not in a position to find any good reason why the aforementioned George, CRL.R.P.No.512 of 2001 :: 9 :: Eldose or Karunakaran, whose statements had been admittedly taken by PW.8, were not cited as eye witnesses. In other words, one is disturbed with the lurking thought that the investigation was abruptly stopped and the best evidence was not made available to the court. It is in this background that I find it difficult to accept the testimony of Pws.5 and 8 as adequate to base the conviction of the accused, especially, for the offence which carries a sentence of imprisonment as mandatory. 12. In these circumstances, I am of the view that the courts below had gone wrong in finding the accused guilty of the offence under the Arms Act. The conviction and sentence passed against the accused are liable to be set aside. Accordingly, Criminal Revision Petition is allowed. The conviction and sentence passed against the petitioner/accused are set aside. He is acquitted of the charges levelled against him. The bail bond executed by CRL.R.P.No.512 of 2001 :: 10 :: him shall stand cancelled. If any amount has been deposited by him as fine, the same shall be refunded to him within three months from today. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge