K. C. Agrawal, J. - (1.) THIS revision is directed against the judgment of the learned Sessions Judge, dated 24-9-1973, dismissing the appeal preferred by Chhedi Singh (applicant no. 1) ag ainst the conviction under Section 30 of the Arms Act and by Sigdar Singh (applicant no. 2) under Section 25 of the said Act.
(2.) ACCORDING to the case of the prosecution, on 15-3-1972, Dharamvir Singh, Station Officer, P. S. Attarra, district Banda, received information that Sigdar Singh was in possession of an unlawful gun. He along with police witnesses as well as two independent witnesses Ganesh and Mahabir went to the house of Sigdar Singh at 3.30 P.M. and recovered a D.B.B.L. gun from his house. As Sigdar Singh could not show any licence, for the same, he was pro secuted for the offence under Section 25 of the Arms Act. So far as Chhedi Singh is concerned, the charge against him was that he having given his gun to Sigdar Singh was guilty of the offence under Section 30 of the Arms Act. Both the applicants pleaded not guilty. The case of Chhedi Singh was that he had gone to the house of Sigdar Singh and after keeping the gun at his house, he had gone to attend the call of nature and in the meantime the Sub-Inspector came and recovered the gun. The case taken up by both the applicants was that their conviction was bad as they had not committed any offence. Believing the case of the pro secution, the Magistrate convicted Sigdar Singh under Section 25 of the Arms Act, whereas Chhedi Singh was convicted under Section 30 of the said Act. Chhedi Singh was sentenced to pay a fine of Rs. 200/- while Sigdar Singh was sentenced to six month's R.I. Aggrieved, the applicants went in appeal, but their apeal was dismissed, although the sentence of imprisonment awarded to Sigdar Singh was set aside and he was sentenced to pay a fine of Rs. 200/- in default, to undergo one month's R. I. It appears that the prosecution had produced two public witnesses, who were Ganesh and Mahabir. Mahabir was declared hostile by the prosecution inasmuch as he stated in his cross-examination that he had not signed the recovery memo and that the same was not prepared in his presence. Reliance was, however, placed by the prosecution on the sole testimony of Ganesh. So far as Ganesh is concerned, he admitted towards the end o f the cross-examina tion that Cheddi Singh had also arrived at the door of Sigdar Singh. The evi dence of Ganesh thus also shows that the case taken up by the defence could not be discarded by the two courts below inasmuch as according to the witnesses produced by the prosecution itself, Cheddi Singh was present at the time when the gun was recovered from the house of Sigdar Singh. As Chhedi Singh had gone to attend the call of nature, his temporary absence from the house of Sigdar Singh could not either be sufficient for convicting Chhedi Singh under Section 30 nor could Sigdar Singh be held guilty under Section 25 of the Arms Act. Accordingly the con viction of the applicants appears to be illegal.
(3.) IN the result, the revision suc ceeds and is allowed. The conviction and sentence of both the applicants are set aside and they are acquitted of the charge. The fine, if paid, shall be re funded to them. Revision allowed.;