Criminal Appeal (SJ) No.175 of 1997 ****** Against the judgment of conviction and order of sentence dated 31.05.1997 respectively passed by Shri Shatrughan Singh “Rampuri” learned 2nd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 124 of 1988. ****** Jai Nandan Thakur, Son of Late Jhingur Thakur, resident of village – Mahnar Taura, P.S. – Mahnar, District – Vaishali. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mrs. Vimala Kumari, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Nobody appears on behalf of the appellant. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. The appellant has been convicted under Section 25A, 25C, 26 and 35 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. 4. The prosecution case as alleged by the informant Bashishth Narayan Singh, Officer In-Charge, Mahnar is that he got a secret information that one Ram Pravesh Thakur, son of Jai Nandan Thakur has kept theft articles from the house of Bharath Rai in his house. On said information the police raided the house of Jai Nandan Thakur and 2 Ram Pravesh Thakur. However, seeing the police Ram Pravesh Thakur fled away from the back portion of the house but Jai Nandan Thakur was caught and during search from the western room two countries made pistol and seven live cartridges were recovered. Jai Nandan Thakur was arrested in view of the fact that Jai Nandan Thakur and Ram Pravesh Thakur are living together. 5. On the fardbeyan, First Information Report was lodged and after investigation charge-sheet was submitted and during trial ten witnesses were examined. The witnesses have proved the search, seizure and recovery of the firearms as well as prosecution sanctioned and has also proved the report of Sergeant Major that the arms recovered was made. However, the informant P.W. 5 has stated that he received secret information that the son of Jai Nandan Thakur is involved in the theft and on search the recovery was made and it was learnt that Ram Pravesh Thakur on getting information of coming of the police he fled away from the back portion of the house and a pistol was recovered from the western room of the house. 6. The trial court convicted the appellant that the police recovered the firearm from the house. 7. Learned amicus curiae, however, contended that from the prosecution case itself, it is apparent that it was the son Jai Nandan Thakur was instrumental and having other activities of theft and the 3 recovery made from the house indicates about the culpability of the Ram Pravesh Thakur and recovery cannot be said in the conscious possession of the appellant as it has come that the appellant is 80 years old at the time of judgment and his involvement in crime is not established. 8. Taking into consideration, the evidence in the light of submission, it is true that the recovery was made from the house of Jai Nandan Thakur and Jai Nandan Thakur and Ram Pravesh Thakur also living in the same house but for the act of Ram Pravesh Thakur, the appellant Jai Nandan Thakur cannot be held responsible. 9. However, having regard to the evidence that police got information about theft by Ram Pravesh Thakur and on seeing police Ram Pravesh Thakur fled away hence the circumstance show that it was Ram Pravesh Thakur who was having conscious possession and the culpability and the conduct that the appellant remained there and merely because in the house having several rooms and there is nothing in evidence to support that the appellant has got knowledge and was in conscious possession. 10. Hence, taking into consideration the entire facts and circumstances, I find and hold that the appellant was not in conscious possession and hence the order of conviction and sentence recorded by the learned lower court is hereby set aside, the appeal is allowed. 4 11. Mrs. Vimala Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 30th August, 2011. N.A.F.R./Kundan.