-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Baboo Singh Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.267/1988 against the judgment dt.24.6.1988 passed by Addl.Sessions Judge No.1, Hanumangarh, Camp Sangaria, in Sessions Case No.82/1987. Date of Judgment: July 14, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Varun Gupta, for the appellant. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Additional Sessions Judge No.1, Hanumangarh, Camp Sangaria, dt.24.6.1988, whereby he convicted accused appellant Baboo Singh u/s.307 IPC and sentenced him to undergo four years' R.I. and a fine of Rs.100/- and in default, to further undergo one -2- month's S.I. and also u/s.27 of the Arms Act, 1959, hereinafter referred-to as “the Act” and sentenced to two years' R.I. and a fine of Rs.100/- and in default, to further undergo one month's S.I. Both the substantive sentences were ordered to run concurrently. 2. The story of the prosecution is that on 16.7.87 at 8.15 PM, injured Jagdish Chandra lodged F.I.R. at Police Station, Sangaria that at 7 PM on the same day, when he was going near the Sadul Branch of the Canal in Jeep, accused Baboo Singh was standing there and told him that he will not leave him. After some days, when he went to the dhani of Phula Ram Sahu, then accused Baboo Singh torn his shirt. Phula Ram and Omprakash intervened. After half an hour, accused Baboo Singh again came and fired with his 12 bore pistol, which collided on his right hand shoulder. The witnesses Phula Ram, Omprakash and Indra Sen were present there. The report of the incident Ex.P.1 was lodged at the Police Station, Sangaria. The police investigated the case and after investigation, the challan was filed against the accused u/s.307 IPC and u/s.27 of the Act. Accused was charged accordingly, to which he pleaded not guilty. The prosecution examined 6 witnesses. The statement of the accused u/s.313 CrPC was recorded. He produced two witnesses in his defence. After hearing the arguments, learned trial Judge convicted the -3- accused appellant as above. 3. While assailing the judgment of the learned trial Court, learned counsel for the appellant has submitted that in this case, the whole story is false. There was no recovery of pistol from the person of the accused u/s.27 of the Evidence Act by which it can be said that accused fired at injured Jagdish Chandra. According to the learned counsel, the recovery in this case is said to have been made on the basis of the information furnished by the accused u/s.27 of the Evidence Act, which is Ex.P.5 given on 28.7.87 at 3.05 PM and recovery memo is Ex.P.6 but this recovery of 12 bore pistol has not been found to be proved by the ACJM, Sangaria in Criminal Original Case No.76/89 “State vs. Baboo Singh decided on 28.7.99 where the carbon copy of this information Ex.P.5 has been attached and not proved by the ASI. Even the recovery memo in that case has not been found and the prosecution witnesses failed to appear before the learned Magistrate and therefore, the learned Magistrate acquitted him. According to the learned counsel, once the accused is acquitted u/s.25 of the Act at a later stage by the court of Magistrate, his previous conviction u/s.307 IPC and u/s.27 of the Act, cannot be sustained. -4- 4. Per contra, learned Public Prosecutor submitted that both the cases are separate and acquittal of accused by the ACJM at later stage where the prosecution witnesses could not appear, the conviction of the accused cannot be set aside. 5. Having considered the rival contentions putforth by the learned counsel for the accused and the learned Public Prosecutor, it appears that both the trials in FIR No.146/87 u/s.25 of the Act and FIR No.156/87 have been registered at Police Station, Sangaria, District Sri Ganganagar, on different dates. FIR No.146/87 has been registered on 16.7.87 on the basis of the report u/s.307 and Sec.27 of the Act of injured Jagdish Chandra and FIR No.156/87 has been registered on 28.7.87 u/s.25 of the Act on the basis of the recovery of pistol made in FIR No.146/87, which was earlier registered as above. 6. Section 25 of the Act provides punishment for having in possession of the prohibited arms, unless authorized by the Central Govt. in this behalf, whereas Section 27 provides punishment for using such arms in contravention of Section 5 i.e. licence and of Section 7 i.e. authorization. Learned P.P. has not been able to satisfy the Court as to what was the necessity of registering the second FIR i.e. FIR No.156/87 on 28.7.87, when the recovery was made in pursuance of the information furnished -5- by the accused. This FIR was registered u/s.25 of the Act for having in possession of the arms and earlier FIR was of using the arms u/s.27 of the Arms Act. When the recovery is same in pursuance of the information furnished by the accused in the earlier FIR, there was no occasion to register a separate FIR and file a chargesheet. By filing this second chargesheet and consequential acquittal by the learned ACJM in that case i.e. Cr.Original Case No.76/89 on 28.7.99 has created a legal controversy as to what will be the effect of this acquittal under Sec.25 of the Arms Act in an earlier conviction recorded u/s.27 of the Arms Act. Neither the trial Courts nor the prosecution nor the investigating agency were vigilant with regard to this double jeopardy of trial and of Section 220 CrPC, which reads as under: “220. Trial for more than one offence.- (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at -6- one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this section shall affect section 71 of the Indian Penal Code.” 7. Under the above provision, if in the same series of transaction, more than one offences are committed, accused should be charged together at one trial. When there was already FIR No.146/87 pending at the same Police Station u/s.307 IPC & Sec.27 of the Act, there was no occasion to register another FIR No.156/87 and accused could have been charge-sheeted in that FIR u/s.25 of the Arms Act as well as u/s.27 of the said Act. Now, when later he has been acquitted in the said second trial u/s.25 of the Arms Act in FIR No.156/87, which deals with possession of the contraband arms and no appeal has been filed against this order of acquittal by the State, that judgment has attained finality. Though, at a later stage, when his possession over the arms has not been proved by the magisterial court and the learned Additional Sessions Judge while convicting the accused u/s.27 of the Arms Act has not taken note of earlier chargesheet u/s.25, it will be very unsafe to maintain the conviction of the accused u/s.27 of the Arms Act i.e. for using -7- arms. Though, in the earlier case, the recoveries have been proved in pursuance of the information furnished by the accused but in the case of having possession of the arms, it has not been proved and, therefore, the learned Magistrate acquitted the accused appellant. When the trial Court has lost sight of this important aspect of the case with regard to the possession of the arm at a time when it is said to have been used by virtue of registering second FIR on the basis of the first FIR, it will be very unsafe for this Court in appeal to maintain conviction of the accused u/s.27 of the Arms Act for using the same. A thing is said to be used when it is in possession of a person concerned, else it cannot be presumed that he has used it. 8. Whether under the above circumstances, the conviction recorded by the court of Sessions u/s.307 IPC and S.27 of the Arms Act, results in failure of justice by not framing charge u/s.25 of the Arms Act has to be looked into in the light of Section 464 CrPC, which reads as under: “464.Effect of omission to frame, or absence or, or error in, charge.-(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has infact been occasioned thereby. -8- (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may. - (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts, proved, it shall quash the conviction.” 9. Under the above Section, the Court of appeal or revision may decline to interfere in the finding, unless there is a failure of justice that no charge was framed, it may recommend for retrial and under the proviso to this Section, if the Court is of the opinion that no chargesheet can be preferred against the accused in respect of the facts proved, it shall quash the conviction. 10. Here, in the present case, it has to be seen whether the failure of justice has resulted and if so, whether the case should be sent back for retrial. Undoubtedly, firstly the incident is 21 years' old; secondly the magisterial Court has acquitted the accused appellant u/s.25 of the Arms Act on the basis of the same recovery with respect to possession of the prohibited arms -9- on 28.7.99 in Criminal Original Case No.76/89; and thirdly the Additional Sessions Judge, who convicted the accused appellant in the present case, lost sight of the case being pending against the accused with regard to the same prohibited arms u/s.25 of the Arms Act. In the above circumstances, if the case is sent back for retrial, it will not serve the ends of justice and on the other hand, it will result in the failure of justice. The finding of a magisterial Court with regard to not having possession of the prohibited arms, which has attained finality and on the same basis, confirming the sentence by a trial Court about using of the arms, will be a situation, which will certainly result in diluting the course of justice. When, once the possession has not been proved, its use punishable u/s.27 of the Arms Act and attempt to commit culpable homicide punishable u/s.307 IPC cannot stand proved. Under the above circumstances, the conviction of the accused appellant u/s.307 IPC and u/s.27 of the Arms Act cannot be maintained because by virtue of proviso to Section 464 CrPC, now at this stage, when he has been acquitted u/s.25 of the Arms Act, no valid charge for this offence can be framed in re- trial. 11. Consequently, this appeal is allowed. While setting aside the conviction of the accused appellant Baboo Singh for the offences u/s.307 IPC and u/s.27 of the Act recorded by the -10- Additional Sessions Judge No.1, Hanumangarh, Camp Sangaria, vide his judgment dt.24.6.1988, he is acquitted of the charges levelled against him. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS