IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1062 of 2010 1. IMDAD MIAN 2. AHMAD MIAN …PETITIONERS Versus STATE OF BIHAR … OPPOSITE PARTY For the petitioners :Mr. Umesh Chandra Verma For the State :Mr. J.K.Singh, APP ----------- 03. 09.12.2010 Rule confined to the question of sentence only. Learned APP waives service of notice on behalf of the State. Heard. With the consent of the parties, this application is now finally disposed of at the stage of admission itself. Petitioners herein are aggrieved by judgment and order dated 210.04.2010, passed learned Sessions Judge, West Champaran, Bettiah in Cr. Appeal No. 29 of 1998, whereby the appeal stood dismissed and the judgment and order of conviction recorded by learned trial court was affirmed. The two petitioners are brothers. They were tried for an offence punishable under section 25(1)(a) as well as 26/35 of the Arms Act. As per the FIR, on getting confidential information about manufacturing of fire-arms in the house of the petitioners, the police raided the same. Few persons tried to escape from the house in question who were offered chase and captivated. Petitioners are among those persons. A search was carried out in the house of the petitioners and seizure(s) 2 was/were effected. At the trial, 11 witnesses were examined to support the prosecution case. P.Ws. 5 & 6 are seizure list witnesses. P.Ws. 1 & 2 have not been relied upon by the prosecution and have thus been declared hostile. Remaining witnesses have supported the prosecution case. So far as P.Ws. 5 & 6 are concerned, they admitted their signatures on the seizure list (Exts. 1 and 2) but deposed to the effect that the same was not prepared in their presence. On a consideration of materials available on record, trial court found and held the petitioners were guilty of aforesaid charges and accordingly sentenced them to undergo R.I. for three years with fine having default clause and also R.I. for six months with fine having default clause under sections 25(1)(a) and 26/35 Arms Act respectively. Aggrieved by aforesaid judgment and order, they preferred appeal which was dismissed, as noted above. Hence the application. Learned counsel for the petitioners submits that although the trial concluded in less than a year, but the appeal remained pending for about 12 years. It is next contended that at the time of recording conviction they were found fairly young. Referring to trial court judgment, it is submitted that there was no past conviction found and recorded against them. It is the submission of the petitioners that in view of these facts appearing from the records, they ought to have been dealt with under the provisions of Probation of Offenders Act. By not doing so, learned trial court has committed an illegality. It 3 appears from paragraph 13 of the appellate court judgment that entire aspect of the matter including appraisal of evidence was made by the appellate court whereafter it has been found that having regard to the evidence on record conviction and sentence recorded by trial court did not require any interference. The appellate court, therefore, re-scanned the evidence and materials on record and found in paragraph 13 that they were sufficient enough to prove the guilt. Learned APP, on the other hand, submits that there is/are concurrent findings of guilt recorded by two courts below which cannot be said to be perverse and/or perfunctory. It is submitted that appellate court also re-scanned and re-appraised the evidence and thereby concurred with the findings recorded by trial court. I have considered the submissions advanced on behalf of the parties. Petitioners were found involved in manufacturing fire-arms. The offence for which they have been held guilty is serious in nature and has become a menace. It is seen from the trial court judgment that relevant consideration in this regard was not made by trial court but having regard to the materials on record and charge(s) for which they have been held guilty, this Court is of the view that they do not graduate for their release under the provisions of Probation of Offenders Act. However, having regard to the facts that they had to fight the trial and the appeal remained pending for 12 years, a lenient view of the 4 matter, so far as the quantum of sentence is concerned, can be taken in the present case. Consequently, while upholding the conviction recorded by learned trial court and duly affirmed by learned lower appellate court, R.I. for three years awarded under section 25(1)(a) of the Arms Act is reduced to R.I. for two years. Other part(s)/condition(s) of the sentence/conviction shall remain intact. With this modification in sentence, the application is dismissed. hr ( Kishore K. Mandal )