Shivraj Singh vs State

M. P. Saxena, J.

Shivraj Singh has filed this appeal against the order dated 441973 passed by the Second Temporary Civil and Sessions Judge, Etawah, convicting him under section 25(i)(a) of the Arms Act and sentencing him to two years'' rigorous imprisonment.

Briefly stated the prosecution case is that on 111972 at about 2 A. M. Ramnath (P. W. 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 ulimately 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 sunrise, 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 1215 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 learned SubDivisional Magistrate conducted inquiry and committed the accused to the court of Sessions to stand his trial for the said offence.

The axused 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. Rail 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 MianKaNagla and falsely implicated in this case. According to him, pistol and cartidges were plants with him. In fact, he was not possessed of any of these incriminating articles.

The prosecution examined 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 (P. W. 1), Harbilas (P. W. 2) Sadhau (P. W. 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, sisterinlaw of Nem Singh. However, on this score alone his testimony cannot be thrown overboard, if it finds cornoboration in independent evidence. Harbilas and Sadhau (P. Ws. 2 and 3) 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 Siagh accused. In the course of arrest a few lathi blows were also delivered to Shivraj Singh and on a search of his persons 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 were 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.

On the other hand the accused examined two witnesses, namely, Jabbu Lal (D. W. 1) and Shanti Swarup (D. W. 2). It is important to state that Jabbu Lal is the brotherinlaw of the accused and resides in village MianKaNagla but he did not depose to the effect that the accused was arrested from MianKaNagla. No other witness came forward to prove the same. Shanti Swarup (D. W. 2) came forward simply to prove relationship of Shushila Devi with Nem Singh, brother of Ram Nath (P. W. 1). It would thus be clear that the accused's suggestion that he was apprehended from village MianKaNagla remained only upto the stage of mere bald suggestion. It was not at all ''denied by the accused that exhibits 1 to 3 were produced at the police station at the time when he was handed over to the police. There is every reason to believe the prosecution story that exhibits 1 to 3 were covered from the possession of the accused after he was apprehended in the manner alleged.

The learned counsel for the appellant has vehemently contended that the appellant's arrest was illegal inasmuch as private individuals had no right to apprehend him and take him to the police station. I am reluctant to subscribe to this view because the relevant portion of section 59 of the old Criminal Procedure Code reads as follows :

"Any private person may arrest any person who, in his view, commits a nonbailable and cognizable offence, or any proclaimed offender and without unnecessary delay, shall make over any person so arrested to a police officer, or in absence of a police officer, take such person or cause him to be taken in custody, to the nearest police station." The aforesaid makes it clear that a private person has right to arrest any person who, in his view, commits a nonbailable and cognizable offence. The same view was taken by the Full Bench of this Court in Wazir and another v. State (1). All the earlier cases were discussed in it. The crucial point, therefore, for consideration is whether possession of illicit firearm is a cognizable and nonbailable offence. Section 38 of the Arms Act lays down that every offence under this Act shall be cognizable within the meaning of the Code of Criminal Procedure, 1898. Section 37 of this Act also says that all arrests and searches made under this Act, or under any rules made therein, shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898, relating respectively to arrests "and searches made under that Code. Schedule II of the Criminal Procedure Code, 1898, which applied to this case laid down that if an offence is punishable with imprisonment for three years and up wards but less than 7 years, the offence will be nonbailable except in cases (not relating to firearms) under the Indian Arms Act, 1878. Section 19, which shall be bailable. It makes it clear that recovery of any arm punishable under section 19 of the old Arms Act was bailable but recovery of firearm made out a nonbailable offence. Section 25 of the present Arms Act is analogous to section 19 of the old Arms Act. In the instant case a countrymade pistol was recovered from the possession of the accused. It is a firearm alright and was in woi king condition at the time of accused's arrest. The accused had fired a shot from it because the fired shell of the cartridge was recovered from its barrel. Even at the time of the trial it was not disputed that the firearm is in proper working condition. The accused failed misreably to prove that it was planted with him. He committed a cognizable and nonbailable offence when he was found in possession of this firearm. Therefore, under section 59 of the old Criminal" Procedure Code private persons had right to arrest him. It is needless to say that no time was lost in producing the accused at the police station. He was arrested at about 2 A. M. On account of night the villages did not go to the Thana. On the following day Ram Math prepared a report and took the accused to the police station which lies at a distance of six miles. Therefore, his arrest was perfectly valid and the trial could not be vitiated on that score. I am in judgment that he was rightly convicted under section 25 (1) (a) of the Arms Act. The sentence of two years'' R. I. awarded to him, however, deserves to be reduced. The ends of justice will be amply met if his sentence is reduced to six months'' R.I.

The appellant's conviction under section 25 (1) (a) of the Arms Act is confirmed but the sentence is reduced to six months'' R. I. Subject to this modification the appeal is dismissed. The appellant is on bail and will surrender forthwith to serve out his sentence.