Decided on August 06,1965

Sagun Appellant
STATE Respondents

Referred Judgements :-



M.H. Beg, J. - (1.)The Appellant has been convicted under Sec. 412 IPC and sentenced to seven year's rigorous imprisonment. It is alleged that a gun was recovered from a grain bin in his house on 17.5.1961 at about 6.30 a.m. It is said that it had been concealed in a room in his house consisting of two rooms. The learned Sessions' Judge who tried the case found that the gun was recovered from the exclusive possession of the Appellant. He, however, discussed no evidence which could bring the case within the purview of Sec. 412 IPC. Apparently, the case was conducted negligently both for the prosecution as well as for the defence. The prosecution evidence was that the Appellant was present at the house at the time of the search, but no evidence was given showing that the Appellant was also arrested at that time. On the other hand, an affidavit was filed showing that Harwansh Trivedi (P.W. 13) had arrested the Appellant on 20.3.1961, several months after the search of the house. The learned Sessions Judge conjectured that the Appellant could not be arrested at the time of the search because of want of sufficient police force. There is no evidence whatsoever to justify this assumption. It has been argued on behalf of the Sute that there is some material to justify the assertion that the Appellant was actually arrested and prosecuted Under Sec. 19(f) of the Arms Act. If that material is there it ought to have been brought upon the record and the prosecution evidence is lacking in that respect. The prosecution has not explained, on the evidence on record, why the Appellant was not arrested if he was presence at the house. It has also been rightly pointed out that, although village Akthara Narainpur police station Jahangirganj, in which the Appellant's house is said to be situated has more than 200 or 250 houses and that there are quite a number of respectable people residing there, yet the two search witnesses were Mohammad Ali (P.W. 2) and Sat Deo Pandey (P.W. 1), both of whom reside in Jahangirganj and not in the village in which the Appellant's house is situated. The result was that these two witnesses were unable to state whether other persons resided in that house or not. It is doubtful whether they had any knowledge about the house of the Appellant. There remains the evidence of Brij Narain Singh (P.W. 3) the Investigating Officer, who also deposed that the Appellant was present at his house and that the gun was recovered from the grain -bin after the house had been searched. The Investigating Officer also stated that the Appellant had several brothers, but stated he resides separately from them. The witnesses were not asked about the arrest of the Appellant. It was not suggested to them that the Appellant was not present at his house. Not only was the cross -examination most deficient, but the attempt to prove that there were brothers of the Appellant and the other persons residing with the Appellant was made by filing an extract from the Kutumbh Register. The extract was marked as Ext. Kha. 3. Objection to the proper mode of proving it should have been taken at the time when the copy of the extract from the register was being exhibited and not subsequently. If a piece of evidence is irrelevant and in a admissible for that, reason, an objection to its admissibility can be taken at any stage. If, however, a piece of evidence is relevant but the mode of its proof is objectionable, the objection must be taken at the time when the erroneous mode of proof is adopted. The learned Sessions Judge overlooked this principle altogether and held, at the time when he gave judgment, that Ext. Kha 3, which had already been exhibited, was not admissible in evidence as it has not been duly proved to be a certified copy from the register. The more fatal objection to the use of this piece of evidence in favour of the accused is that no attempt has been made to show that the house shown in the Kutumb register as residence of the Appellant and his brothers and others was actually the house which the sub inspector visited. On the other hand, the evidence that the sub -inspector had visited the house of the Appellant at the time and date in question went completely unchanged. The Appellant contended himself by a bare denial of recovery or presence there.
(2.)In the circumstances mentioned above I considered the desirability of setting aside the conviction of the Appellant and ordering retrial. Mr. Rathore appearing for the Appellant however points out that the Appellant has been in jail for nearly a year. As the Appellant can only be convicted under Sec. 411, IPC, no useful purpose will be served by a retrial. As the evidence of recovery from the house of the Appellant in the presence of the Appellant was not been either properly challenged (sic)r sufficiently rebutted I accept that this evidence is enough to establish that a gun was recovered concealed in the house of the Appellant. This fact would not how -ever, be enough to make Sec. 412 IPC applicable as was held in Ram Samujh v/s. Rex (1949 AWR 299).
I, therefore, set aside the conviction of the Appellant under Sec. 412 IPC and convert it into a conviction Under Sec. 411 IPC, reduce the sentence of the Appellant to the period already undergone.

(3.)With this modification the appeal is dismissed. The Appellant is on bail and need not surrender.

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