Criminal Appeal No.15 of 2012

6th March, 2014

Petitioner Counsel: Mr. SIDDHESH SHET
Respondent Counsel: Ms. M. GOMES PINTO

JUDGMENT

JUDGMENT :- Heard Mr. Shet, learned Counsel appearing on behalf of the appellant and Mrs. Pinto, learned Additional Public Prosecutor appearing on behalf of the respondent.

2. This appeal is directed against the part of the judgment and order dated 27/04/2012 and sentence dated 30/04/2012 by which the present appellant came to be held guilty of the offence punishable under Section 3 read with Section 25 of the Arms Act, 1959 and ordered to undergo Rigorous Imprisonment for one year and to pay fine of Rs.5,000/- and in default, to undergo Rigorous Imprisonment for one month. The period of detention already undergone by the accused appellant was set off under Section 428 of Cr.P.C.

3. The appellant was accused no.1 in Sessions Case No. 17/2009 and he shall, hereinafter, be referred to as accused no.1. Accused no.1 along with accused no.2 namely Nandkishore Naik was charge sheeted by Churchorem Police Station before the learned Judicial Magistrate, First Class, Sanguem for offence punishable under Sections 304 and 201 of I.P.C. and Section 3 read with Section 25 of the Arms Act. Since the offence under Section 304 of I.P.C. was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court. After hearing arguments before charge, accused no.1 was charged for the offence punishable under Section 201 of I.P.C. and Section 3 read with Section 25 of the Arms Act.

4. The case of the prosecution was that on or about 07/02/2009 at about 8.00 p.m. at Temer Bandol Hill, the accused no. 2 committed culpable homicide not amounting to murder by causing death of Mohan Gaonkar by means of firearm bullet shot and on the same day, at the same time and place, accused nos. 1 and 2, in furtherance of their common intention, intending that the offence of murder was committed, gave wrong information to the complainant and the villagers that the deceased had fallen down and further both the said accused were in possession of firearms without having valid licence for the same.

5. Accused no.1 pleaded not guilty to the charge framed against him. The prosecution examined 17 witnesses. The statement of accused no.1 came to be recorded under Section 313 of Cr.P.C. Accused no.1 did not examine any witness in his defence.

6. Upon consideration of the entire evidence on record, the learned Additional Sessions Judge, FTC, Margao ('trial Judge') came to the conclusion that the prosecution could not prove beyond reasonable doubt that accused no.1 was guilty of offence punishable under Section 201 of I.P.C. However, as already stated above, accused no.1 was held guilty, convicted and sentenced for the offence under Section 3 read with Section 25 of the Arms Act.

7. Mr. Shet, learned Counsel appearing on behalf of accused no.1 submitted that the panchanama of recovery of a firearm at the instance of accused no. 1 has not been proved beyond doubt He submitted that the alleged recovery was from an open place. Learned Counsel further submitted that deceased was the cousin brother of accused no.1 and they were in good relations with each other. He submitted that accused no.1 had no intention of any kind nor mens rea for doing any offence. He further submitted that the recovery of the firearm at the instance of accused no.1 was allegedly effected on 08/02/2009 from a place which was close to the spot where the deceased had died. He submitted that the evidence of Investigating Officer, namely P.S.I. Vinayak Patil (PW12) reveals that his first visit to the spot was on the night of 07/02/2009 and he was at the spot for almost two hours. He, therefore, submitted that the Investigating Officers were aware of the said place prior to the recovery at the instance of the accused and, therefore, the said recovery cannot be said to have been proved by PW8. He urged that the accused no 1 has been wrongly convicted and is entitled for acquittal. In the alternative, the learned Counsel appearing on behalf of accused no.1 submitted that if this Court finds that there is sufficient evidence against accused no.1, then, considering that accused no. 1 is a close relative of the deceased with whom he had no enmity and that accused no.1 otherwise has already undergone imprisonment for about five months, the said sentence be considered as sufficient sentence for the accused no.1 and to that extent, the sentence be altered.

8. On the contrary, the learned Additional Public Prosecutor submitted that the first visit of the Investigating Officer, namely Vinayak Patil, PW12 to the spot was on the night of 07/02/2009 and though he was at the spot for about two hours, however, the said place was having several cashew trees and was not visited by public at large. The learned Additional Public Prosecutor further submitted that recovery of the firearm at the instance of accused no.1 was not from any open public place, but the same was found hidden by the accused no.1 on a dry cashew tree and it was recovered at the instance of accused no.1. She submitted that the evidence of PW8, panch witness for the panchanama of recovery of the said firearm has been duly proved and his testimony is not shaken in the cross-examination. The learned Additional Public Prosecutor submitted that the arrest panchanama of the accused no.1 has been duly proved by PW6 and the clothes which were worn by the accused no.1 had blood stains which fact has been proved by the report of CFSL, Hyderabad. She further submitted that the scene of offence panchanama is also proved by the same witness, namely PW8 and the said panchanama clearly mentions that the said scene of offence was having several cashew trees. She invited my attention to the sketch which shows trees at the spot. Learned Additional Public prosecutor further took me through the evidence of PW15, Shri Gokuldas P. Naik, the then District Magistrate, South Goa, who has clearly stated that after verifying the records, he found that the accused no.1 was not possessing valid arms licence. She lastly pointed out from the report of CFSL that the said firearm, which was recovered at the instance of the accused no. 1 was a Single Barrel Muzzle Loading gun which was in working condition and could cause injury/ death. She, therefore, submitted that the offence under Section 3 read with Section 25 of the Arms Act was clearly proved as against the accused no. 1 and, therefore, no interference is called for.

9. I have gone through the entire material on record. I have considered the submissions advanced on behalf of the learned Counsel for the parties.

10. (i) Section 3(1) of the Arms Act provides as under :

"3. Licence for acquisition and possession of firearms and ammunition.-

(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder."

(ii) Section Section 25(1-B)(a) of the Arms Act provides as under :

"25(1-B) Whoever--

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year"

11. From the above provisions of the Arms Act, it is clear beyond doubt that mere acquisition of or possession of or carrying a firearm without valid licence, is punishable.

12. PW8, Shri Mohan Gaonkar acted as one of the panch witnesses for three panchanamas. The first panchanama was of inquest over the body of the deceased Mohan Gopi Gaonkar, with which we are not concerned. Second panchanama was drawn on 08/02/2009. This was recovery panchanama at the instance of the accused no.1. The evidence of PW8 reveals that there was another panch witness namely Devidas and the accused no.1 in the presence of the said panch witnesses narrated the entire incident which occurred on 07/02/2009 which being past history, is not admissible. What is admissible is the statement made by the accused no.1 to the panch witnesses that he had thrown the firearm and other items at the spot of incident and that he would show the said items. The evidence of PW8 reveals that the accused no.1 then took the panch witnesses and police team to Vailey Bandol Anganwadi and from the back side of the said Anganwadi through a pathway towards cashew plantations. After walking to a distance of about 500 metres, the accused no. 1 showed the spot beneath a cashew tree where the deceased was kept, after being brought from Temer. Thereafter at a distance of about 2.00 metres from that spot, the accused no.1 pointed out two sweaters and thereafter, again took them further to a distance of 200 metres by walking on the deep slope of cashew plantation at Temer and pointed out the firearm, headlight, one sack and one blanket. The said firearm was showed by the accused no.1 on the dry branch of cashew tree lying on the surface. The said firearm was removed from the surface. It was found to be a Single Barrel Muzzle Loading gun. This firearm recovered at the instance of the accused no.1 was attached,packed and sealed. Recovery panchanama is at Exhibit 33. The scene of offence panchanama and the sketch is also proved by the same witness namely PW8 and the sketch reveals that the said scene contains various trees and it cannot be termed as an open place.

13. The testimony of PW8, as has been rightly held by the Trial Court, is not shaken in the cross-examination. The scene of offence itself was not a place which was easily visible. It was a cashew plantation not ordinarily visited by public at large. There were dry leaves and branches of cashew trees scattered everywhere. The place could not be reached at by means of vehicles and one had to walk by foot. It is true that PW12, Vinayak Patil, the Police Sub Inspector of Curchorem Police Station, had visited the spot of incident for the first time on 07/02/2009 and he remained at the scene of offence for about two hours. That does not mean that the place where the firearm was thrown by the accused no. 1 was already known to the police prior to the panchanama of recovery at the instance of the accused no. 1. The firearm was not recovered from the scene of offence but from some distance away from the said scene. PW12 had no reason to imagine that the firearm could be found at that place if searched. It was otherwise night time. There is therefore no force in the contention of learned Counsel for the accused no. 1 that on account of the visit of PW12 to the scene of offence on 07/02/2009 at night time, the recovery of firearm at the instance of accused no. 1 is rendered unreliable. PW8 has given graphic details of how the accused no. 1 led them to the place where he had thrown the firearm and showed it to them. The testimony of PW8 inspires confidence.

14. The examination report of CFSL which is at exhibit 47 reveals that the said firearm recovered at the instance of the accused no. 1 was a Single Barrel Muzzle Loading gun which was in a working condition and could cause injury/death. Therefore, it is proved beyond doubt that the accused no.1 was in possession of and had carried with him a firearm which was a gun in a working condition. PW15, the then District Magistrate, namely Gokuldas Naik has specifically stated that after verifying the records, he found that the accused no. 1 was not possessing valid arms licence. Even otherwise, the accused no.1 did not produce before the Court any arms licence.

15. The evidence of PW15 also reveals that appropriate sanction to prosecute the accused no.1 for offence under Section 3 read with Section 25 of the Arms Act was accorded. This sanction order is at exhibit 72 about which there is no dispute at all.

16. In view of the above, the offence under Section 3 read with Section 25 of the Arms Act was proved against the accused no.1 beyond reasonable doubt. Therefore, the impugned judgment and order insofar as the accused no.1 is concerned, thereby holding him guilty and convicting for the offence under Section 3 read with Section 25 of the Arms Act, is correct and cannot be interfered with.

17. Upon hearing the learned Counsel for the parties, regarding the extent of sentence, it is found that the accused no.1 is a close relative of the deceased, being his cousin brother. There was no enmity between the accused no. 1 and the deceased. There is no evidence that the accused no.1 had used the said firearm for any purpose. As has been pointed out by the learned Counsel appearing on behalf of the accused, the accused no.1 has already undergone imprisonment for a period of about five months. The offence committed by the accused no.1 entails punishment of imprisonment which shall not be less than one year, but it may extend to three years and fine. However, if there are adequate and special reasons to be recorded, the Court can impose a sentence of imprisonment for a term less than one year. In my view, considering the facts and circumstances as explained above, the imprisonment, which the accused no.1 has already undergone, coupled with the fine already imposed on him should be sufficient punishment for him. Therefore, the sentence imposed by the learned Additional Sessions Judge requires to be altered.

18. In the result, the appeal is partly allowed.

The judgment and order holding the accused guilty and convicting him of the offence under Section 3 read with Section 25 of the Arms Act is maintained. The sentence imposed by the learned Additional Sessions Judge is, however, modified and the accused no. 1 is ordered to undergo imprisonment for the period already undergone by him and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for three months. The firearm recovered at the instance of accused no. 1 shall be dealt with in accordance with law.

19. The appeal stands disposed of accordingly.

Appeal partly allowed.