K.C.Agrawal, J. - (1.) THIS revision is directed against the judgment of the First Temporary Civil and Sessions Judge, Ghazipur, dated 19 -6 -1973, upholding the conviction of the applicant under Section 5 of the Telegraph Wires (Unlawful Possession) Act. (briefly stated as 'the Act'). By the judgment dated 22nd March, 1973, the Assistant Sessions Judge had sentenced the applicant to three years' R. I. It was this judgment which was upheld by the learned Sessions Judge, in appeal.
(2.) SRI S.K. Verma, learned Counsel for the applicant, argued three points before me in this revision. The first point was that as the prosecution failed to establish that the wire found from the possession of the applicant was telegraph wire within the meaning of that word as defined in the Act, the Courts below committed an error in convicting the applicant of the offence under Section 5 of the Act. It was contended by the learned Counsel for the applicant that in order to prove the wire to be telegraph wire, the prosecution should have established that three tests had been carried out by the Expert who examined it, and as in the instant case the evidence of Sri R. M. Khare (PW 8) shows that he carried out two tests only and did not carry out the test for checking the resistance of the wire, the conviction of the applicant is bad. learned Counsel for the applicant placed reliance on a case reported in Gauri Ram v. State of U.P., 1972 AWR 677, in support of his proposition. I have gone through the statement of Sri R. M. Khare (PW 8) who, was examined as an Expert by the prosecution for the purposes of establishing that the wire in question was telegraph wire. He has stated that after seeing the luster and colour of the wire and examining the diameter as well as its weight, he was satisfied that the wire in question was the telegraph wire. He further stated that the wire, which had been sent to him, was not available in the market. He was not cross -examined by the defence on any of the points stated by him in the examination -in -chief. Accordingly, there is no doubt left on the basis of which his testimony could be disbelieved establishing that wire in question was the telegraph wire.
(3.) SO far as the case relied upon by the learned Counsel for the applicant is concerned, it is true that in that case the Division Bench found that as the resistance of the wire had not been checked by the Expert, the prosecution could not be said to have established that the wire found from the possession of the accused of that case was telegraph wire. But it is material to point out that in that case itself the Division Bench observed that : Our observation should by no means be construed to mean that we are laying down any particular mode of testing the genuineness or otherwise of the copper wire belonging to the Telegraph Department. A reading of the judgment of the aforesaid case indicates that the Division Bench did not wish to lay down any law with regard to the testing of the wire by the Expert for finding as to whether the wire found from the possession of the accused was telegraph wire for the purpose of convicting him. The Bench, on the evidence brought on record of that case, held that as the resistance of the wire found from the possession of the accused of that case had not been tested, it could not be said to be telegraph wire. In the instant case, the position is that Sri Khare (PW 8) was not cross -examined by the defence at all on any point stated by him in his examination -in -chief. He was produced by the prosecution as an Expert to depose about the fact that the wire recovered from the possession of the applicant was the telegraph wire. In the absence of any cross -examination, it is not possible to disbelieve his testimony and to find that the prosecution failed to establish that the wire in question was not the telegraph wire. Counsel also attempted to argue that as Sri Khare (PW 8) was not an Expert, he could not be treated as a witness produced by the prosecution as such. The submission is untenable. It is more than clear from the record that he was produced by the prosecution as an Expert. Accordingly, the first submission has no substance.;