M. P. Saxena, J. - (1.) SHIVRAJ Singh has filed this appeal against the order dated 4-4-1973 passed by the Second Temporary Civil and Sessions Judge, Etawah, convicting him under section 25 (1) (a) of the Arms Act and sentencing him to two years' rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that on 1-1-1972 at about 2 A.M. Ramnath (PW 1) who is resident of village Kashipur, came out of his house to make water. He saw two persons standing near his door. When he challenged them, they threatened to kill him if he raised any noise. Ram Nath paid no heed to the threat and raised an alarm which attracted Har Bilas, Sadhau Singh, Bhojraj and Taley Singh on the spot. Seeing these persons coming armed with lathis, both the miscreants ran away towards the east. The villagers gave them chase but one of them fired a shot in the air. The villagers did not abandon the chase and ultimately arrested one of those two persons, who is now the appellant. He was arrested in the field of Mahendra Singh after giving some lathi blows. His companion managed to escape. On a search of his person a country made pistol (Ex. 1) and one live cartridge (Ex. 3) were recovered from his possession. A fired shell of the cartridge (Ex. 2) existed in the barrel of the pistol. In the night the accused was detained outside the house of Ram Nath. After sun-rise, Ram Nath dictated the report to Jant Singh and went to the police station with the accused as well as the articles recovered from his possession. The first information report was lodged at 12-15 P.M. The articles recovered were taken possession of by the police and were placed in a sealed bundle. The Investigating Officer inspected the spot and prepared its site plan. He interrogated the witnesses and obtained sanction of the District Magistrate to prosecute the accused, under section 25 of the Arms Act. The learn- ed Sub-Divisional Magistrate conducted inquiry and committed the accused to the court of Sessions to stand his trial for the said offence. The accused pleaded not guilty to the said charge and gave out that his maternal uncle Daya Ram had kidnapped a young girl, Shushila Devi, about five years ago. This girl delivered a child from Daya Ram and she is the wife's sister of Nem Singh, real brother of Ram Nath. Later on the police recovered the girl and gave her in the custody of Nem Singh. Ram Nath had kept her as his wife and Daya Ram is being prosecuted for kidnapping or abducting her as well as for committing rape on her. He further gave out that he is doing Pairvi on behalf of Daya Ram and has risked the displeasure of Ram Nath. Therefore, he was got arrested from village Mian-Ka-Nagla and falsely implicated in this case. According to him, pistol and cartridges were plants with him. In fact, he was not possessed of any of these incriminating articles.
(3.) THE prosecution examined five witnesses and the accused also examined two witnesses and filed certain documents. After going through the evidence on the record, the learned trial court believed the prosecution story and convicted and sentenced the appellant as aforesaid. I have heard the learned counsel for both sides at great length and have given my anxious consideration to the whole matter. The primary question for consideration is where the appellant was apprehended and whether exhibits 1 to 3 were recovered from his possession. On this point the prosecution examined Ram Nath (PW 1), Harbilas (PW 2) Sadhau (PW 3). Ram Nath can be said to be not favourably disposed towards the accused because the latter's maternal uncle is being prosecuted for kidnapping or abducting Smt. Shushila Devi, sister-in-law of Nem Singh. However, on this score alone his testimony cannot be thrown overboard, if it finds corroboration in independent evidence. Harbilas and Sadhau (PWs) are close neighbours of Ram Nath. Both of them gave out that they had got up in that night on hearing the alarm of Ram Nath. They proceeded towards his house armed with lathis. Bhojraj and Taley also turned up. They saw two persons running away towards the east. They gave them chase but one of them fired a shot in the air. They, however, did not lose courage and succeeded in apprehending one of the miscreants and he was none else but Shivraj Singh accused. In the course of arrest a few lathi blows were also delivered to Shivraj Singh and on a search of his person the pistol (Ex. 1), live cartridge (Ex. 3) and a fired cartridge (Ex. 2) were recovered. Both these witnesses bear absolutely no enmity with the accused. There is no reason why the statements of these witnesses should not be implicitly relied upon. The learned counsel for the accused tried to shake their testimony on the basis of certain contradictions but, as discussed by the learned trial court, they are too trifling to affect the merit of their evidence. The statements of these three witnesses, therefore, go a long way in proving that Shivraj Singh accused was arrested at the place alleged by the prosecution and exhibits 1 to 3 were recovered from his possession.;