Raosaheb Balu Killedar v. State Of Maharashtra

1. The appellant along with three others was sent up for trial for various offences. The learned Judge of the Designated Court acquitted the three co-accused of the appellant of all the charges. He also acquitted the appellant for the offences under Section 141 read with Sections 143 and 144, Section 146 read with Sections 147 and 148, Section 302 read with Section 149 and in the alternative under Section 302 read with Section 34, Section 307 read with Section 149 and in the alternative Section 307 read with Section 34 IPC and Section 3(2)(i) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter “the TADA Act”). The appellant was, however, convicted for the offence punishable under Section 3 read with Section 25 of the Arms Act, 1959 and sentenced to suffer rigorous imprisonment for three years. Through this appeal under Section 19 of the TADA Act he has called in question his conviction and sentence.

2. The only evidence on the basis of which the appellant has been convicted for the offences under Section 3 read with Section 25 of the Arms Act, 1959 is the recovery of a country-made revolver and a cartridge pursuant to a disclosure statement made by the appellant under Section 27 of the Evidence Act from a place behind Kohinoor Mill, Dadar. The disclosure statement, Ext. 11 was sought to be proved by the evidence of panch witnesses, PW 1, PW 9 and PW 12.

3. According to the prosecution case on 27-7-1990 at about 1.30 p.m the appellant while in custody of the police at N.M Joshi Marg Police Station made a statement under Section 27 of the Evidence Act in the presence of PW 1, PW 9 and PW 12 which was reduced into writing disclosing the place where the weapon, a revolver with a live cartridge had been concealed. The appellant thereafter led the police party to a place behind Kohinoor Mill, Dadar and pointed out the place and himself removed the earth and from a pit about 6 inches deep recovered a revolver loaded with a live cartridge, wrapped in a polythene bag. The trial court relied upon this evidence and came to the conclusion that the appellant was in conscious possession of the revolver and the cartridge, and convicted and sentenced him as noticed above.

4. We have gone through the judgment of the learned Designated Judge, the evidence of PW 1, PW 9 and PW 12 and the documents, Ext. 11 and Ext. 12. The trial court has extracted the admissible part of the statement of the appellant recorded under Section 27 of the Evidence Act in para 17 of the judgment. That statement as translated by the learned Designated Judge reads:

“Revolver is concealed at Dadar. Come on. I will point out the place and revolver.”

From this statement we are at loss to understand how the trial Judge could have come to the conclusion that the recovery pursuant to it could clothe the appellant with conscious possession of the revolver and the cartridge. The statement extracted above is capable of an interpretation that the appellant had the knowledge about the concealment of the revolver at the particular place from where it was got recovered and not that he had concealed the same.

5. In this view of the matter, it is not possible to say conclusively and beyond a reasonable doubt that the appellant had conscious possession of the revolver and the cartridge. The evidence of PW 1, PW 9 and PW 12, which only relates to the making of the disclosure statement and the recovery of the revolver and the cartridge cannot advance the case of the prosecution to hold that the appellant was in conscious possession of the revolver and the cartridge. The evidence of the ballistic expert also pales into insignificance.

6. Since the prosecution has failed to establish beyond a reasonable doubt that the appellant was in conscious possession of the revolver and the cartridge, his conviction for an offence under Section 3 read with Section 25 of the Arms Act, 1959 cannot be sustained. We, accordingly, accept this appeal and set aside the conviction and sentence of the appellant and acquit him.