State of Karnataka vs Jagatsingh

Huluvadi G. Ramesh, J.—Appeal is by the State challenging the order of acquittal passed by the III Addl. Sessions Judge, Gulbarga in SC 210/2009 on 3.11.2009 for the offence punishable under S. 25(a) of the Indian Arms Act. It is alleged, on 16.4.2005 around 10.30 a.m., the Sub-Inspector of Police, Rural Police Station, Gulbarga along with his staff was on patrolling duty near Aland Check Post, the accused on seeing them, started running away. Apprehending him, they recovered a country pistol hidden in the left waistline of his pant. He also failed to produce the license. On the ground the accused expressed that the pistol belongs to his father and he was carrying it with an intention to sell, a case came to be registered in Crime 62/2005 for the above said offence. Charge sheet was filed before the Magistrate. On committal to the Sessions Court, the Sessions Court framed charges against the accused and as he pleaded not guilty, tried the accused. The prosecution in all, examined about six witnesses and got marked four documents and MO 1 - country pistol. Accused was examined under S. 313, Cr.PC. His defense was total denial. Thereafter, accused was acquitted for the offence with which he was charged. Hence, this appeal.

Heard the SPP.

The PSI - Tulajappa was examined as PW 4 and one Mohan Kumar, Police constable was examined as PW 2. Their evidence is to the effect of prosecution story. The ballistic opinion was also sought. As per the opinion of the ballistic expert, the country pistol was not in a working condition. So far as seizure of pistol is concerned, PW 1 - Chandrakanth has supported the version of the prosecution. Nothing worth is elicited in the cross-examination by the defense in his evidence. PW 2 - Mohan Kumar, another police constable has supported the version of the prosecution regarding seizure of pistol which the accused was carrying without license and he was apprehended and there was recovery of pistol in the presence of panchas. He has identified the same pistol in the court. The version of the defense of course is, a false case has been foisted against the accused and there is no such recovery but, the same has been denied. The ballistic expert - PW 3 has opined that there are no signs of discharge from the pistol and also using of the pistol and it was not in a working condition. Though the seizure of the pistol without there being a license is proved by the prosecution, the trial court referring the judgment of the Apex Court in the case of Mahendra Singh Vs. State of West Bengal, with reference to S. 27 of the Arms Act that mere possession of arm is not an offence, the intention to use the arm must be established, and the ballistic expert has opined that there are no signs of discharge from the country pistol and it was not in a working condition and also the evidence of the accused as is recorded by the prosecution, is that the pistol belongs to his father and he was carrying it to sell it, that being the case, it has come to the conclusion that whether the accused had license or not, carrying of the pistol was not with an intention to commit any offence and it was with an intention to sell in the market.

In that view of the matter, the very carrying of the country pistol by the accused does not amount to commission of the offence. Rightly the trial court acquitted the accused. No better inference can be drawn. The order of the Sessions Judge directing to hand over the country pistol to the PSI is modified and it is for the concerned court or the Magistrate to direct it to be confiscated to the State, according to law. Appeal is dismissed.