1 Cri.Appeal 75-97 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.75 OF 1997 Baliram Bandu Patil ..Appellant Age : 33 years, Occupation : Watchman & Agriculturist, Residence of Gavase, Taluka Ajara, District Kolhapur. V/s. The State of Maharashtra ..Respondent Mr.Shekhar Ingawale, Advocate, for the Applicant Mrs.A.A.Mane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 10TH JANUARY, 2011 ORAL JUDGMENT . This Criminal Appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Gadhinglaj, District Kolhapur for the offence punishable under Section 25(1) read with Section 3 of the Indian Arms Act for possession of country-made Gun, and sentence of rigorous imprisonment for 2 Cri.Appeal 75-97 one year and a fine of Rs.2,000/- imposed upon by the learned Additional Sessions Judge. 2. Facts in the context of which this Criminal Appeal has been filed are as under :- On 7th February, 1996, deceased Pandurang Kamble had gone to the forest to collect Honey or Honey bees. The appellant seems to have gone for hunting some forest animal with his Gun. The appellant fired his Gun which killed Pandurang Kamble. The appellant was found with Gun by some villagers either going to the forest or coming out of the forest. On 9th February, 1996, the dead body of Pandurang Kamble was found. Initially, an accidental death and thereafter, an offence was registered. The appellant was arrested on 10th February, 1996 and at his instance, Gun, some Gun powder and Bullets were seized under the heap of fodder. On completion of investigation, charge sheet was 3 Cri.Appeal 75-97 sent. 3. Upon commitment of the case to him, the learned Additional Sessions Judge, Gadhinglaj, District Kolhapur, charged the appellant of the offence punishable under Section 302 or in the alternative 304 of the Indian Penal Code and Section 25(3)(1) of the Indian Arms Act. After considering the evidence of ten witnesses examined on behalf of the prosecution because the appellant pleaded not guilty and claimed the trial, the learned Judge held that charge of the offence punishable under Section 302 or in the alternative 304 of the Indian Penal Code was not proved. However, he held the appellant guilty of the offence punishable under Section 25(1)(3) of the Indian Arms Act and proceeded to convict and sentence him as afore mentioned. Aggrieved thereby, the appellant has preferred this Criminal Appeal. 4 Cri.Appeal 75-97 4. I have heard the learned Counsel for the appellant and the learned APP for the State. 5. The learned Counsel for the appellant submitted that the evidence of P.W.2 Hanmant Kamble and P.W.3 Tulasa Kamble, who claimed to have seen the appellant with the gun in his hand, has to be discarded because this particular part of their evidence is an improvement and was found to be missing in the statement made to the police as proved by P.W. 5 Shivaji Koli. P.W.4 Mangal Kamble the widow of deceased Pandurang Kamble and has nothing to state about complicity of the appellant. P.W.6 Police Constable Gangaram Sarambale carried the seized articles to the Forensic Science Laboratory. P.W.7 Dashrath Patil too claims to have seen the appellant, but without a Gun. Therefore, his evidence is of no use as far as proof of offence punishable under Section 25(1) read with 5 Cri.Appeal 75-97 Section 3 of the Indian Arms Act is concerned. P.W.8 Yallappa Kamble, a clerk from the office of Collector, Kolhapur, proved sanction accorded by the Collector for prosecution of the appellant, since the appellant was found to be in possession of a Gun without a license as required under Section 3 of the Indian Arms Act and since such a sanction from the District Magistrate is required under Section 39 of the Indian Arms Act for lodging prosecution. P.W.9 Dr. Smita Kamble is Autopsy Surgeon and her evidence need not be discussed, since the learned Judge held the appellant not guilty of offences under Section 302 or in the alternative 304 of the Indian Penal Code. 6. This leaves the evidence of P.W.1 Jotiram Patil, panch at the seizure of the Gun, Gun Powder and Bullet at the instance of appellant by P.W.10 A.P.I Dilip Patil. The learned Counsel for the appellant submitted 6 Cri.Appeal 75-97 that the evidence of both these witnesses is deficient in as much as they do not state that the accused has concealed the Gun in the heap of fodder. P.W.1 Jotiram Patil states that appellant disclosed in his presence that he would produce Gun and Bullets. P.W.10 A.P.I Dilip Patil stated that accused made disclosure and accordingly, panchnama was drawn in the presence of panchas. The learned Counsel for the appellant is, thus, right in submitting that both the witnesses did not state explicitly about the concealment of Gun by the appellant. The learned APP, however, submitted that memorandum itself at Exhibit 14 would show that the appellant had specifically stated about concealment of Gun and heap of fodder near the house. She submitted that deficiencies in recording of evidence by the learned APP in-charge of the trial in the Trial Court, could not lead to acquittal of the appellant of the serious charge of possession of a country made Gun. She further 7 Cri.Appeal 75-97 submitted that since both the witnesses have submitted that the contents of Exhibit 14 were correct, this omission about explicitly stating about concealment of Gun is immaterial. There is considerable force in the submission of the learned APP. Though technicalities can not be allowed to come in the way of convicting wrong doers, one cannot also loose sight of the fact that condoning such technicalities leads to laxity on the part of the prosecution machinery in bringing on record in proper words as to what had happened. All the same, expecting that the persons concerned would be more diligent in future, the evidence of P.W.1 Jotiram Patil and P.W.10 A.P.I Dilip Patil as to the concealment of Gun as recorded in Exhibit 14 would have to be held to have been rightly accepted by the learned Trial Judge. 7. The learned Counsel for the appellant next submitted that the Gun was found from a 8 Cri.Appeal 75-97 heap of fodder outside the house of the appellant and therefore, possession thereof could not be attributed to the appellant. He submitted that the place was accessible to all and therefore, recovery of the Gun would not be of any help in connecting the appellant to the crime. As rightly pointed out by the learned APP that though, the Gun may have been concealed outside the house of the appellant, it cannot be ignored that it was just outside the house of the appellant and it was not obvious or visible to everyone till the accused took it out from the heap of fodder. None knew about its presence under heap of fodder. The learned APP submitted that it is not necessary for the purpose of attributing possession that the articles concerned must be concealed in a private place, since so long as the knowledge about concealment is restricted to the accused alone, possession thereof can be attributed to the accused since he had concealed the articles. 9 Cri.Appeal 75-97 8. In view of this, it cannot be held that the learned Trial Judge erred in holding that the appellant was found to be in possession of a country made Gun. 9. As already observed, sanction from the Collector for prosecuting the appellant has been proved by examining P.W.8 Yallappa Kamble and there is no deficiency in the statement of said P.W.8 Yallappa Kamble. 10. In view of this, appellant's conviction of the offence punishable under Section 25(1) read with Section 3 of the Indian Arms Act would have to be upheld. 11. The learned Counsel for the appellant submitted that the appellant was a young man at the time of his conviction as recorded by the learned Additional Sessions Judge. He submitted that the appellant had no previous Criminal history. Yet the learned Additional 10 Cri.Appeal 75-97 Sessions Judge had sentenced the appellant to rigorous imprisonment for one year. According to the learned APP, this was minimum punishment that could have imposed under Section 25(1) read with Section 3 of the Indian Arms Act and therefore, the order is perfectly justified. Considering the fact that the appellant was, even, according to the learned Additional Sessions Judge, a young person without any previous Criminal history, the learned Judge could have considered recording special other reasons as is permissible under Section 25(1) of the Indian Arms Act for giving a reduced sentence. All the same, now, about 14 years after the conviction was recorded, it is doubtful, if it would be proper to send the appellant back to prison to serve his remaining sentence. The appellant was in jail from 10th February, 1996 to 1st March, 1996 i.e. about 18 to 19 days approximately. Considering this, ends of justice would be served, if the sentence is 11 Cri.Appeal 75-97 reduced to that already under gone while increasing fine from Rs.2,000/- to Rs. 25,000/-. 12. In view of this, Criminal Appeal is partly allowed. Conviction of the appellant of the offence punishable under Section 25(1) read with Section 3 of the Indian Arms Act is maintained. Substantive sentence is reduced to the period already undergone namely 19 days. The appellant shall pay a fine of Rs. 25,000/- in place of Rs.20,000/- imposed by the learned Additional Sessions Judge or in default suffer rigorous imprisonment for a period of nine months. If the amount is not deposited within a period of three weeks, the learned Additional Sessions Judge shall take steps to have the appellant to serve in default. (R.C.CHAVAN, J.) 12 Cri.Appeal 75-97