CRIMINAL REVISION No.359 OF 2001 ----- Against the judgment and order dated 30.03.2001 passed by Sri Jitendra Kumar Sinha, Addl. Sessions Judge II, Barh in Cr.Appeal No.87 of 1997 confirming the judgment of conviction and sentence dated 05.05.1997 passed by Sri B.M.Srivastwa,Subdivisional Judicial Magistrate,Barh in G.R.No.1492 of 1991, Trial No.15 of 1997 (Bakhtiarpur P.S. Case No. 279 of 1991). ----- HARIBANSH SAO @ HARBANSH SAO SON OF MAHENDRA SAO RESIDENT OF VILLAGE RAJPURA,P.S.ATHMALGOLA, DISTRICT PATNA ----- PETITIONER Versus THE STATE OF BIHAR ------ OPPOSITE PARTY ----- FOR THE PETITIONER : MR.PASHUPATI PD.SINHA FOR THE STATE : MR.ALI MUZAFFAR,A.P.P ----- P R E S E N T ----- THE HON'BLE MR.JUSTICE SHYAM KISHORE SHARMA ------ S.K.SHARMA,J. This revision application has been admitted for hearing only on the point of sentence vide order dated 10.07.2001. Instant revision has been preferred against the judgment dated 30.03.2001 passed by Additional Sessions Judge II, Barh in Cr.Appeal No. 87 of 1997 confirming the judgment of conviction and sentence dated 05.05.1997 passed by Sub-Divisional Judicial Magistrate, Barh in G.R.No. 1492 of 1991 (Trial No. 15 of 1997) by which the petitioner was found guilty for committing offences under Sections 25 (1-B)A, 26 (1) of the Arms Act and was sentenced to undergo rigorous imprisonment for one year under Section 25 (1-B)A of the Arms Act and six 2 month for offence under Section 26(1) of the Arms Act. The sentences were ordered to run concurrently. On 26.12.1991 in the after noon at 1.15 P.M. a reading party went to village Rani Sarai for checking the vehicles which were suspectedly carrying illegal fire arms. The raiding party at 2.10 P.M. intercepted a truck bearing registration No. BR-06G-8388 and in course of search one young person jumped from the truck and started running. He was overpowered and caught after chase and on being searched in presence of truck driver Sunil Jha and Khalasi Lakshman Paswan, one pistol loaded with a cartridge of 315 bore and a live cartridge of 315 bore were recovered from him who disclosed his name and he is the petitioner. The seizure list was prepared in presence of the witnesses. After investigation, chargesheet was submitted, cognizance was taken and trial proceeded. The defence of the accused was of false implication and mistaken identity. His further defence was that he was wrongly 3 apprehended and, in fact, it was not the petitioner from whom arms was recovered. The prosecution in order to substantiate its case examined 7 witnesses. P.W.1 Arvind Kumar Singh was a formal witness who has only proved the signature on the F.I.R (Ext.1). Ext.2 is the seizure list and Ext.3 is the written report. Ext.4 is the endorsement on the written report. The Arms and ammunitions were examined and its report was marked as Ext.5. The District Magistrate acccorded sanction which has been marked as Ext.6. The informant Suresh Rajak, A.S.I. Bakhtiarpur Police Station, himself was examined as P.W.4. He has supported the factum of recovery. Other witnesses have also supported the prosecution case and stated that on the date and time, there was recovery of arms and ammunitions from the accused. Considering the entire evidences both oral and documentary on record, the trial court came to the conclusion that the prosecution was able to prove the charges beyond all reasonable doubts. So the petitioner was convicted and sentenced as 4 stated above. The appellate court appreciated the evidences and also came to the opinion that the appellant was found in possession of arms and ammunitions. Considering this, conviction and sentence of the appellant was upheld. Hence this revision. After analyzing the entire evidences on record, I am also of the view that the prosecution has been able to prove the charges beyond all reasonable doubts. Accordingly, the conviction of the petitioner is maintained. Argument of the learned counsel for the petitioner is that the petitioner was a first offender and no previous conviction was proved against him, so he should have been granted the benefit of the provisions of Sections 4 and 5 of the Probation of Offenders Act and he should not have been awarded substantive sentence of one year because the mandatory provision of Probation of Offenders Act and also the provision of Section 360 of the Code of Criminal Procedure were not followed. On merit also it has been submitted that the seizure list was not 5 proved. Independent witnesses were not examined. All the prosecution witnesses were interested and partisan. So the trial court has erred in relying upon their evidences. There is concurrent findings of fact that on the date and time of occurrence, the petitioner was found in possession of loaded fire arm and also one live cartridge. So there was nothing wrong in not giving the benefit of provisions of Probation of Offenders Act or the benefit of Section 360 of the Code of Code of Criminal Procedure. However, on the question of sentence, learned counsel for the petitioner has taken a plea that it was the first case in which the petitioner was made accused and no previous conviction was proved. Though the minimum sentences under the Arms Act have been awarded but if there are certain reasons then the accused is entitled to lesser punishment. It appears that the judgment was passed by the trial court on 05.05.1997 and at that time the age of the petitioner was mentioned as 26 years. The occurrence is of 1991. Hence he was an 6 young person of 20 years age on the date of occurrence. The petitioner has spent considerably a longer period in jail during trial and appeal. After judgment of appellate court, the petitioner surrendered in the court below and in revision he was ordered to be released on bail on 10.7.2001. Considering all these, I am of the view that the sentences of the petitioner need to be modified and if the sentences are reduced to the period already undergone by him, that will be sufficient for the ends of justice. Accordingly, the sentences of the petitioner are reduced to the period already undergone by him. In the result, this revision application is dismissed with modification in sentence, as mentioned above. ( Shyam Kishore Sharma,J.) Patna High Court,Patna The 28th October,2009 Tahir/-(NAFR).