Pabitar Singh vs State of Bihar

B.P. Sinha, J.—The petitioner stands convicted and sentenced to undergo rigorous imprisonment for a period of three years u/s 26 of the Arms Act and for a period of one year u/s 25 of that Act with a direction that the sentences would run concurrently.

The petitioner Pabitar Singh and one Ramasray Singh were in joint occupation of quarter No. 490A of the Loco colony at Gaya, On receipt of a confidential information that some stolen properties of a dacoity committed within the jurisdiction of Bisrampur Police Station were lying concealed in that quarters, Shanker Upadhya Officer-in-charge of Gaya Kotwali Police Station raided the quarter at 5-30 A.M. on 5-11-1962 in presence of Vijai Kumar Dubey (P.W. 1) and Devnandan Ram (P.W. 5). The quarter was locked from outside. A name plate bearing the name of Ramasrey Singh was hanging on the wall of the outer verandah and consequently Ramasray Singh, who was reported to be on duty at that time, was sent for. Ramasray Singh opened the outer lock of the quarter. A search was conducted by Ramshanker Upadhya (P.W. 14), Another Sub-Inspector Ramswarath Singh was also present then. Pabitar Singh was found concealed in a kitchen room which was bolted from inside. It was got opened and on a search a country-made gun was found lying in between two bricks. A tin containing flour in a bag covered with a brass thali was placed thereon, On a search of the bed room of the quarter two live 12 bore catridges were found kept wrapped in a small cloth behind a framed picture of Lord Shiva which was hanging from a wall and resting on three iron nails fitted in the wall. These articles were seized. Fardbeyan was drawn up and ultimately after obtaining sanction of the District Magistrate both Pabitar Singh and Ramasray Singh were put on trial for offences under Sections 25 and 26 of the Arms Act. The defence was that the accused persons did not commit any offence. Pabitar Singh''s defence was that he was ill on the relevant date. He was not arrested inside the kitchen room. While returning from latrine he was caught in the Angan and arrested.

The trial Court found both the accused persons guilty of the offences under Sections 25 and 26 of the Arms Act and convicted and sentenced them. On appeal, however, Ramasrey Singh was acquitted and the conviction and sentences of this petitioner were confirmed. Hence this revision application has been filed.

Learned Counsel for the petitioner has submitted that the prosecution has failed to prove that Pabitar Singh was in conscious possession of the catridges and the country-made gun and the inference drawn by the courts below in that connection from the circumstances proved is not justified. It is further been contended that at any rate the prosecution has failed to prove that the incriminating articles were concealed by Pabitar Singh with the intention that the concealment may not be known to any public servant.

Both the charges under Sections 25 and 26 of the Arms Act framed against this petitioner related to the two cartridges and the country-made gun. So far the cartridges are concerned, the concurrent findings of the courts below are that they were kept wrapped in a piece of cloth behind a picture hanging from the wall. On the basis of the statement of P.W. 1. who was one of the search witnesses, the courts below have found that the picture was hanging above the place where the cot of the petitioner was lying. This is the only circumstance on the basis of which the inference has been drawn that the cartridges were in conscious possession of the petitioner. The law in connection with the inference of the guilt from circumstantial evidence has been clearly laid down in a decision of the Supreme Court in M.G. Agarwal Vs. State of Maharashtra, . It is like this:

It is well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person''s conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consisistent with his guilt. It the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basis on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.

Here in the instant case the room was in joint occupation of Ramasray Singh and Pabitar Singh. The inference of conscious possession of Pabitar Singh alone is drawn from the simple fact that the picture, behind which the cartridges were kept, was just above his cot. The fact that this cot belonged to Pabitar Singh has been stated to by P.W. 1 alone. He is such a witness who made contradictory statements, as a result of which the prosecution was permitted to cross-examine him. He did not state before the police that the cot belonged to Pabitar Singh. Further this circumstance that the cot belonged the petitioner was never put to the petitioner while recording his statement u/s 342 of the Code of Criminal Procedure. He was not given opportunity to assert or deny it. Therefore this statement of P.W. 1 that the cot belonged to the petitioner should not have been taken as a circumstance against the petitioner. That being so, in view of the facts that the room was in joint occupation of two persons there could be no inference of petitioner''s conscious possession of the cartridges and their concealment by the petitioner.

It is well settled that ordinarily findings of fact should not be disturbed in revision, where however, the findings of fact are as a result of an inference drawn from certain circumstances proved in the case, it is open to the court in revision to consider whether such inference is warranted by those circumstances. In this connection I would like to refer to a decision of this Court in Basudeb Mandar Vs. Emperor, It has been held therein:

As a rule it is not usual for the High Court to go into the facts of a cage or to go behind the findings of fact arrived at by the Courts below; but in a case which depends wholly on circumstantial evidence the question whether the circumstances taken as a whole amount to conclusive proof of the guilt of the accused or not has often to be considered even by a Court of revision.

To the same effect is a decision in Harakrishna Mahatab Vs. Emperor, . This view gets support from a decision in Bageshwari Devi and Others Vs. Indian Union, as well. There also the question of intention was considered in the. revision The above reported decision in Basudeb Mandar Vs. Emperor, has been followed by the Kerala High Court in Narayani Amma Kamaladevi Vs. State of Kerala, . Therefore, in my opinion, in the circumstances of this case Pabitar Singh cannot be held guilty for being in conscious possession of the cartridges or concealment thereof.

As has been noted above, charges under both the sections relate to country-made gun as well. With regard to that gun, however, the position is different. It was found inside the kitchen room in which Pabitar Singh himself was found concealing himself. He was the only occupant of that room at the moment. He bolted the room inside. It has been argued that in view of the description of the room as given by the Sub-Inspector, who conducted the search, being not supported by what was found at the time of the local inspection by the Court, it must be held that the prosecution case that Pabitar Singh was found concealed in that room which is also called store room is not proved. In this connection learned Counsel referred to the evidence of the Sub Inspector and also to the local inspection note. The courts below have taken into consideration this discrepancy and even then they have found that the country-made gun was recovered from the kitchen room where this petitioner was concealing himself. The appellate Court has observed that the discrepancy might be as a result of confusion. Nonetheless the court found it as as a positive fact the recovery of the gun was made from the kitchen room. This finding is based upon the evidence on the record. It has been arrived at after due consideration of the discrepancy arising out of confusion. Therefore, this finding has to be accepted. Now from the circumstances that this petitioner was found . inside the kitchen room concealing himself and that the country-made gun was also found concealed there the Courts below have drawn inference that the petitioner was in conscious possession of the country-made gun. Such inference seems to be the only reasonable inference from the facts proved. I, therefore, do not see any reason to interfere with this finding of fact that the petitioner was in conscious possession of the country-made gun. Therefore, the conviction and sentence of the petitioner u/s 25 of the Arms Act cannot be disturbed.

So far the conviction u/s 26 of the Arms Act is concerned, the position is different. Section 26 reads as follows:

Whoever-

(a) does any act in contravention of any of the provisions of Sections 3, 4, 5, 6, 7, 10, 11 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance; or. (b) on any search being made u/s 22 conceals or attempts to conceal any arms or ammunition; shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

The present charges are confined to Clause (a) of the aforesaid section, that is to say, concealment of the country-made gun in such a manner as to indicate an intention that it may not be known to any public servant. Mere concealment is not enough. The prosecution has to prove that the concealment was with the intention that it may not be known to any public servant etc. In order to find the petitioner guilty u/s 26 of the Arms Act, the prosecution has, therefore, to prove some special circumstance from which the only reasonable inference should be that the concealment was from the public servant. Whether the inference as required u/s 26 is justified must depend upon particular circumstance of each case. In support of this proposition reference can be made to decisions in Ganga Prasad Vs. Emperor, Chef Singh v. Emperor AIR 1926 Lahore 262 and Ram Chander Vs. Rex, . In all these cases, it has been laid down that there must be evidence of special concealment contemplated by Section 20 (now the new Section 26). In the instant case it is true that the findings are that the country-made gun was kept between two bricks over which a tin containing bag of flour was kept. This may indicate that there was concealment. In order to show whether this concealment was with the intention that it may not be known to some public servant etc. as specified in Section 26 of the Arms Act some special circumstance has to be proved. There is no evidence that the petitioner knew that a search would be made. Under such circumstances mere keeping the country-made gun, possession of which was certainly illegal, in such a position as it may not, be known to the public in general, cannot lead to the only conclusion that this concealment was with intention that it may not be known to any public servant etc. The circumstances do not lead to this only conclusion indicating commission of offences u/s 26 of the Arms Act. As has been noted above, any finding regarding intention based on inference drawn from facts can be examined in the revision as well. On a consideration of the entire circumstances I am unable to agree that inference of concealment from the public servant would be the only conclusion in this case. The appellate Court has not given any special reason for such a finding. That being so, in my opinion, the conviction and sentence of the petitioner u/s 26 of the Arms Act have to be set aside.

The result is that the conviction of the petitioner u/s 26 of the Arms Act is set aside. His conviction and sentence u/s 25 of the Arms Act are affirmed. With this modification, the revision application is dismissed.