Munuwa alias Ashok vs State of M.P. (C.G.)

R.S. Garg, J.—The appellant being aggrieved by the judgment dated 29-11-1989 passed in Sessions Trial No. 93/89 by the learned Addl. Sessions Judge, Rajnandgaon convicting the appellant u/s 25(1B)(b) of the Indian Arms Act, 1959 sentencing him to undergo R.I. for five months (the period already undergone), has filed this appeal.

The prosecution case in brief was that on 14-6-1989 the present appellant with an intention to commit murder of victim Ramesh Kumar caused an injury on his head by means of a sword. After receiving the report, the police agency came into action, sent the victim for his medical, prepared the panchnama and also recorded the statements of the witnesses. In accordance with the information, recorded the Rojnamcha Sanha (Ex. P-17). A further memorandum under Ex. P-15 was prepared and then a sword at the instance of the accused was recovered under Ex. P-13. On completion of the investigation, the challan was filed. The accused was put to trial. After hearing the parties, the learned Trial Court convicted and sentenced the appellant, therefore, he has come to this Court.

Learned counsel for the appellant submits that after acquittal of the appellant for substantive offence u/s 307, IPC, he could not be convicted u/s 25(1B) of the Indian Arms Act. According to him, not even a single witness has said that the accused was seen with the sword in any place specified under the notification issued u/s 4 of the Act and as contravention of Section 4 of the Indian Arms Act has not been proved by the prosecution, the conviction is bad.

Learned counsel for the State placing his reliance upon the notification No. 6312-6552-II-B (i) dated 22-11-1974 submits that at the instance of the appellant a sword about 36 inches long was recovered and as the recovery is proved by the independent witnesses, the appellant has been rightly convicted.

For proper appreciation of the arguments of the parties, it would be necessary to refer to the provisions of Section 4, Section 25(1B)(b) of the Arms Act and the notification dated 22-11-1974.

"4. Licence for acquisition and possession of arms of specified description in certain cases.-- If the Central Government is of the opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon no person shall acquire, have in his possession, or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder."

"25(1-B). Whoever-

(a) *** *** *** *** *** (b) acquires, has in his possession or carries in any place specified by notification u/s 4 any arms of such class or description as had been specified in that notification in contravention of that section; or

(c) *** *** *** *** *** (d) *** *** *** *** *** (e) *** *** *** *** *** (f) *** *** *** *** *** (g) *** *** *** *** *** (h) *** *** *** *** *** (i) *** *** *** *** *** "Notification No. 6312-6552-II-B (i) dated the 22nd November, 1974.-- Whereas the State Government is of the opinion that having regard to the prevailing conditions in the State of Madhya Pradesh, it is necessary and expedient in the public interest that the acquisition, possession and carrying of sharp-edged weapons with a blade more than 6 inches long 2 inches wide and spring actuated knives with a blade of any size in public places should also be regulated.

Now, therefore, in exercise of the powers conferred by Section 4 of the Arms Act, 1959 (No. 54 of 1959) read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309, dated the 1st October, 1962, the State Government hereby directs that the said section shall apply with effect from the date of publication of this Notification in the "Madhya Pradesh Gazette" to the whole of the State of Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than 6 inches long or 2 inches wide and spring actuated knives with a blade of any size in public places only."

Section 4 of the Act provides that having regard to the circumstances prevailing in any area if the Central Government is of the opinion that it is expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, issue a notification in relation to the said arms specifying the particular area and since after the date of the notification no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification.

From the notification dated 22-11-1974, it would appear that in exercise of the powers conferred by Section 4 of the Arms Act, 1959 read with the Government of India, Ministry of Home Affairs, Notification No. G.S.R. 1309 dated 1-10-1962, the State Government directed that the Section 4 shall apply with effect from the date of publication of the notification to whole of the Madhya Pradesh in respect of acquisition, possession or carrying of sharp edged weapons with a blade more than six inches long or two inches wide and spring actuated knives with a blade of any size in public places only.

A juxtapose reading of Section 4 and the notification would make it clear that in whole of the Madhya Pradesh no person is entitled to carry, acquire or possess a sharp edged weapon with a blade more than six inches long or two inches wide and the spring actuated knives with a blade of any size.

Section 25(1B)(b) provides that whoever acquires, has in his possession or carries in any place specified by notification u/s 4 any arms of such class or description as had been specified in that notification in contravention of that section shall be punishable with imprisonment with a term which shall not be less than one year. The section provides three years maximum punishment but gives a discretion to the Court to award lesser sentence for the reasons to be recorded.

Acquisition, possession or carrying of an arm as specified in the said notification in fact would be an offence. An information about the placement of a particular weapon would not be an offence. For securing a conviction u/s 25(1B)(b) of the Arms Act, the prosecution is obliged to prove that the accused had acquired or had in his possession or was carrying a forbidden arm in any place specified by the notification issued u/s 4 of the Indian Arms Act.

In the present case, the victim P.W. 1 Ramesh Kumar did not say that the accused was armed with a sword or had caused him any injury by means of a sword. P.W. 2 Alanoor did not support the prosecution case. P.W. 3 Yogesh Datt Mishra was declared hostile. P.W. 4 Dr. R.K. Diwakar had examined the victim. P.W. 5 N.P. Mishra, Sub-Inspector of Police, had made certain seizures of the clothes. P.W. 6 Janaklal giving a dent to the memorandum of the accused stated that no information was given by these accused persons but however admitted that a sword was recovered. In his statements, he further says that the accused-appellant brought out the sword from the drain/gutter. P.W. 7 Nagendra Datt Mishra was declared hostile. P.W. 8 A.S. Gill is the Officer, who had recovered the sword at the instance of the accused.

It would be noteworthy that the memorandum of the accused, Ex. P-15, was prepared at 12.10 noon. It would also be necessary to see that at about 9.45 on the same day in Rojnamcha Sanha No. 1470 an information was recorded that the accused informed the police that he had caused an injury to the victim by means of a sword. If this information was already available with the police, then Ex. P-15 would be nothing but ingenuity of the investigating officer and would amount to an eye wash. Ex. P-13 does nowhere say that the sword was recovered from the drain but in fact says that it was produced by the accused.

Be that as it may, the fact remains that the sword was found in the gutter. It is nobody''s case that before recovery of the said sword, the accused was seen in possession of the said arm or was carrying the said arm. The prosecution even does not say that the present appellant had acquired the said arm. In absence of the positive allegations by the prosecution that the accused used the said arm to commit some offence, the recovery would only show that the accused said that a particular arm was kept at a particular place.

This evidence in the opinion of this Court would fall short to prove the mandatory requirement of Section 4 read with Section 25(1B) of the Arms Act.

The learned Court below has not taken into consideration this legal aspect of the matter. The conviction recorded and the sentence awarded to the appellant are bad. The same deserve to and are accordingly set-aside. The accused is acquitted of the charges.

The appeal is allowed.

Criminal Appeal allowed.