Shiju @ Unni s/o Mathai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** **Crl.Rev.Pet.No.4068 OF 2009** **CRA 45/2008 OF DISTRICT SESSIONS COURT, PATHANAMTHITTA** **CC 179/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, PATHANAMTHITTA** ## **REVISION PETITIONER/S:** **SHIJU @ UNNI S/O. MATHAI, OOTTIKKALAYIL VEEDU, V.K.PARA, THANNITHODU VILLAGE.** **BY ADVS. SRI. K.SHAJ SRI.SAJJU.S** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SR.PP. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** Dated this the 22[nd] day of October, 2020 The revision petitioner was the accused in CC No. 179 of 2006 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta and the appellant in Crl. Appeal No. 45 of 2008 on the file of the Court of Sessions, Pathanamthitta. The offence alleged against the accused is punishable under Section 25(1)(1-B)(a) of the Arms Act, 1959 (hereinafter referred to as, “Act”). 2. The trial court, on completion of trial, found the revision petitioner/accused guilty of the offence punishable under Section 25(1)(1-B)(a) of the Act and accordingly, he was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** and in default of payment of fine to undergo simple imprisonment for a period of three months, which was later confirmed by the appellate court. Feeling aggrieved, the revision petitioner is before this Court. 3. The prosecution case, in brief, is that on 25.03.2003 at about 21.30 hrs, the accused was found in possession of an unlicensed country made gun on the courtyard of Oottikkalayil house situated at V.K.Para in Thannithodu ward and thus, committed the offence stated above. 4. During the trial, PWs 1 to 7 were examined and marked Exts.P1 to P5 and MO1 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced. Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** 5. Heard Sri.K.Shaj, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State. 6. PW7, the Sub Inspector of Police, Thannithodu Police Station, who detected the alleged offence, testified that on 25.03.2003 at 9 pm, on getting a reliable information, he proceeded to the place of occurrence along with PWs 1 and 5 and located the accused carrying MO1 firearm on the courtyard of his house. According to PW7, on seeing the police party, the accused took on his heels leaving MO1 at the courtyard. Although the police party made an attempt to chase the accused, he could not be apprehended. MO1 firearm was recovered in accordance with Ext.P1 mahazar and _suo moto_ registered Ext.P4 FIR for the offence punishable under Section 25(1)(a) of the Act. Subsequently, PW7 filed Ext.P5 report Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** before the court to delete Section 25(1)(a) of the Act and to add Section 25(1)(1-B)(a) of the Act. 7. PWs 1 and 5 were Police Constables attached to Thannithodu Police Station. They supported the version of PW7. PW2 is none other than the wife of the elder brother of the accused. She admitted that the accused left the place of occurrence when the police party came to the place of occurrence on the date of occurrence. However, she denied the allegation that the accused wrongfully confined and threatened her with MO1 firearm. PW3, who is the mother of PW2, stated that the accused assaulted PW2 on the date of occurrence. However, she denied the fact that the accused carried a firearm as alleged by the prosecution. PW4, who is the brother of the accused, turned hostile to the prosecution, denying the occurrence. 8. The occurrence in this case was on 25.03.2003 Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** at about 9 pm. The alleged gun was seized by PW7 on the same day as per Ext.P1 mahazar. However, the firearm was produced before the court only on 24.04.2003. There is a delay of nearly one month for producing MO1 gun before the court. PW7 maintained that MO1 firearm was recovered by him and it was in his safe custody till it was produced before the court. In the case on hand, no independent witness was examined by the prosecution to prove the alleged recovery of MO1 from the accused. No evidence was let in by the prosecution to prove that MO1 was packed and sealed after its seizure. No evidence was adduced by the prosecution to indicate as to with whom MO1 was, till it was produced before the court on 24.04.2003. 9. In **Sahib Singh** v. **state of Punjab** [1996 KHC 1374], the apex court reiterated the principles in **Amarjit Singh** v. **State of Punjab** Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** [1995 KHC 1158] and held that non sealing of the gun at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. It is very difficult to believe that MO1 gun was under the safe custody of PW7 until 24.04.2003. The missing link in this regard weakens the prosecution case as a whole. For the infirmities cited above, this Court is of the view that the revision petitioner is entitled to get the benefit of doubt. Further, Section 100 of the Code of the Criminal Procedure regarding search and seizure has not been complied with. 10.Judged by the above standards, this Court is of the view that the conviction and sentence imposed by the trial court, which were later confirmed by the appellate court, are clearly illegal and are liable to be set aside. In the result, the revision petition is Crl.Rev.Pet.No.4068 OF 2009 **==> picture [31 x 8] intentionally omitted <==** allowed, setting aside the conviction and sentence recorded against the revision petitioner/accused. The revision petitioner, who is on bail, is discharged from his bail bond. Fine amount, if paid, shall be refunded to him. ## **Sd/-** **N.ANIL KUMAR** **JUDGE** Bka/22.10.2020