Bhanwaroo Khan, J. - (1.) THESE two appeals i.e. D.B. Cr. Appeal Nos. 1133/2003 and D.B. Cr. Appeal No. 1032/2003 filed by accused Zakiya, Kala Khan, Achariya and Maga Ram respectively against the judgment dated 6.8.2003 passed by the learned Additional Sessions Judge (Fast Track), Balotra Camp Barmer by which accused -appellants Zakiya, Kala Khan, Achariya and Maga Ram, who have been convicted and sentenced as under: Under Section 5/9(B) of The Indian Explosives Act - Two years' rigorous imprisonment and a fine of Rs. 1,000/ - each in default to further undergo three months' rigorous imprisonment. Under Section 4 of The Indian Explosive Substances Act - Rigorous imprisonment for life and a fine of Rs. 2,000/ - each in default to further undergo six months' rigorous imprisonment. Under Section 5 of The Indian Explosive Substances Act - Rigorous imprisonment for life and a fine of Rs. 2,000/ - each in default to further undergo six months' rigorous imprisonment. Under Section 3/6(1)(A) of The Indian Wireless Telegraphy Act - Two years' rigorous imprisonment and a fine of Rs. 500/ - each in default to further undergo one month's rigorous imprisonment. Under Section 120B of The I.P.C. - One year's rigorous imprisonment and a fine of Rs. 500/ - each in default to further undergo one month's rigorous imprisonment.
(2.) BOTH these appeals arise out of the same judgment are being disposed of by this judgment. Briefly stated the facts are that accused Zakiya was in custody of Police Station, Jhinjhaniyali, District Jaisalmer against whom a case under Section 7/25(1)(K) of the Arms Act, Sections 4 and 5 of the Indian Explosive Substances Act, 1908 (for short 'the Act of 1908' hereinafter), Section 5/9(B) of the Indian Explosives Act, 1884 (for short 'the Act of 1884' hereinafter), Section 3(6)(1)(a) of the Indian Wireless Telegraphy Act (for short 'Telegraphy Act' hereinafter) and Section 120B I.P.C. was registered. During the investigation which was under progress in the said police station an information under Section 27 of the Evidence Act was given by accused - Zakiya stating that Explosive Substance was sent twice by Mahardeen from Pakistan to Fotiya and Panu, from whom on the direction of Nathiya, he after receiving it handed it over to Kala son of Bilal. Again second time also the Explosive Substance along with wireless set, two antina, detonator and explosive substances on the direction of Kala, it was sent through Achariya and out of the said articles, he has buried one wireless set and the explosive substances in the field of Usman, resident of Mungariya, near his dhani. On the basis of said information in the presence of Motbirans, the explosive substances along with wireless set wrapped in polythene bag having a small tin in which a wireless hand -set was recovered. In the said polythene bag, the high explosive substance of yellow colour was recovered. A sample of 30 Grams was taken for chemical examination and rest of the articles were sealed on the spot. On the basis of this recovery, the S.H.O., Jhinjhaniyali lodged a report to the police station, Binjrad, District Barmer for further investigation because the articles recovered were within the jurisdiction of District Barmer. The case on the aforesaid offences was registered in the police station Binjrad, who after conducting the investigation submitted a challan before learned Additional Sessions Judge (Fast Track), Balotra Camp Barmer.
(3.) THE accused -persons denied the charges levelled against them for the offence under Sections 4 and 5 of the Act of 1908, Section 5/9(B) of the Act of 1884, Section 3(6)(1)(a) of the Telegraphy Act and Section 120B I.P.C. and under Section 3(6) of the Passport Act and claimed for trial. The prosecution in all produced sixteen witnesses and exhibited documents Ex. -P/1 to Ex. -P/24. The accused -appellants in their statement under Section 313 Cr.P.C. denied the allegations of the prosecution witnesses. Three witnesses were produced in defence.;