IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.Rev.Pet.No. 3620 of 2008() ------------------------------ CRA.250/2004 of SESSIONS COURT, MANJERI CC.84/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------- KRISHNAN KUTTY S/O.AYYAPPAN, NARIPPOYIL AMARAMBALAM AMSOM, NILAMBUR TALUK, MALAPPURAM. BY ADV. SRI.R.SUDEESH KUMAR SRI.SUNIL KUMAR A.G RESPONDENT(S):COMPLAINANT & STATE ---------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3620 OF 2008 =========================== Dated this the 19th day of November,2008 ORDER Revision petitioner is the first accused in C.C.84/1998 on the file of Judicial First Class Magistrate, Nilambur. The petitioner along with 7 other accused were charge sheeted by the Deputy Superintendent of Police, Perinthalmanna for the offences under section 3 and 5 read with section 25 (i)(c) of Arms Act, 1959. Prosecution case was that on 10.8.1992 at about 5 p.m a raid was conducted at the Smithy of first accused, he was found in the process of manufacturing revolvers and on the basis of the information obtained from revision petitioner and on further search 9 revolvers without licence were seized from accused 2 to 8 which were sold by the revision petitioner and all the accused thereby committed the offences. Accused pleaded not guilty. Prosecution examined 16 witnesses and marked 20 exhibits apart CRRP 3620/2008 2 from Ext.C1 the report of the Forensic Science Laboratory and identified M0s 1 and 2. Learned Magistrate on the evidence found accused 2 to 8 not guilty of the offences charged and acquitted them. Petitioner was found guilty of the offence under section 5 read with section 25(i)(a) of Arms Act. After hearing him on the question of sentence petitioner was sentenced to rigorous imprisonment for three years and a fine of Rs.5000/- and in default rigorous imprisonment for six months. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.250/2004. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that in order to convict the petitioner for the offence CRRP 3620/2008 3 under section 5 of the Arms Act, there should be conclusive evidence to prove that petitioner was manufacturing revolver as alleged by the prosecution and to prove that revision petitioner was manufacturing the revolver he should have the necessary materials and the machinery, which should have been seized and though articles were not produced, the articles which were seized are only the ordinary implements being used by any blacksmith and is not an implement for the exclusive manufacture of revolver and therefore the conviction for the offence under section 5 read with section 25(i)(a) of Arms Act is not sustainable. Learned counsel also argued that courts below relied on the evidence of PW9,11, and 14 and there are inconsistencies in their version and evidence of PW14, PW9 and PW11 should not have been believed and when the evidence of PW14 is to the effect that he joined the raiding party only later, courts below were not justified in relying on his evidence. It is therefore argued that the CRRP 3620/2008 4 conviction is not sustainable. 4. Learned Magistrate and learned Sessions Judge elaborately analysed and appreciated the evidence. PW9 was the then Circle Inspector of Police, Nilambur. Evidence of PW9 establishes that as directed by the Superintendent of Police, Malappuram he conducted a raid for the illicit arms on 10.8.1992. Evidence of PW9 was that he searched the Smithy of revision petitioner and at bout 5 p.m and while so revision petitioner was found manufacturing and polishing one revolver and another revolver was found at Smithy. Evidence of PW9 was corroborated by the evidence of PW11 and PW14. Though learned counsel argued that the evidence of PW14 the Sub Inspector of Police, Valanchery should have been discarded, as his evidence shows that he was not in the raiding party and joined the party only later, PW14 did not depose that he was not present when PW9 conducted the raid on the Smithy of the revision petitioner or joined the party later. What was relied on by CRRP 3620/2008 5 the learned counsel is an answer given by PW14 in cross examination that he was not originally among the the raiding party but joined later. But PW14 was not specifically asked and he did not depose whether he joined the raiding party subsequent to the raid in the Smithy of the revision petitioner. Instead evidence of PW14 proves that he joined the party much earier. Therefore based on that statement of PW14 it is not possible to hold that PW14 was not there. PW11 the Police Constable deposed that he was present along with PW9 when he started the raid and was there when they reached the Smithy of the revision petitioner. Evidence of PW11 fully corroborates the evidence of PW9. Though Pws.11 and 9 the attesting witnesses turned hostile their evidence establish that revision petitioner is a blacksmith and he has a Smithy and they signed in Ext.P1 mahazar. Evidence of Pws.9, 11 and 14 corroborated by Ext.P1 establish the raid as well as seizure.Learned Magistrate and the learned Sessions Judge found the evidence of Pws CRRP 3620/2008 6 9,11 and 14 credible and reliable. I find no reason to interfere with that factual finding. Though sophiscated materials for manufacturing a revolver was not seized from the Smithy of the revision petitioner, evidence of PW9,11 and 14 if believed, would establish that revision petitioner was found manufacturing a revolver. As their evidence is found credible and reliable, I find no reason to interfere with the factual finding of the courts below that revision petitioner was found manufacturing revolver on 10.8.1992 at 5 p.m. If that be so, conviction of the petitioner for the offence under section 5 read with section 25(1)(a) of Arms Act is perfectly legal and warrants no interference. As rightly found by the courts below sanction of the District Magistrate is necessary only for prosecution of an offence under section 3 and not section 5 of the Arms Act. 5.Then the only question is regarding the sentence. Section 25(i) (a) provides a minimum sentence of three years which could be extended CRRP 3620/2008 7 upto seven years apart from fine. Learned Magistrate awarded only the minimum sentence provided. Hence no interference is warranted in the sentence also. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006