Pabitar Singh Vs. State of Bihar
 INSC 92 (22 March 1972)
BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 1899 1972 SCR (3) 948 1972
SCC (3) 354
R 1992 SC 669 (8)
Indian Arms Act (LIV of 1959), ss 25 and
35--Premisses in joint occupation of two Persons--Gun concealed in one
room--Conviction of one of the persons--Validity.
The appellant and another, Loco employees of
the Railway, were in joint occupation of certain quarters consisting of a
bed.-room and a kitchen. 'They were charged with offences under ss. 25 and 26
of ',he Indian Arms Act, 1959. The trial court convicted both the accused. The
first appellate Court convicted the appellant but acquitted the other accused.
In revision by the appellant, the High Court set aside his conviction under s.
26, but upheld his conviction under s. 25, on the basis that a gun was found
inside the kitchen-room in which the appellant concealed himself bolting the
room from inside, and that the appellant was the sole occupant of that room at
the time when the police raided the premises.
Allowing the appeal 'to this Court,
HELD : (1) The Courts below had not
considered the prosecution 'evidence in the light of the gross exaggeration
which had been introduced about the door of the kitchen-room having been bolted
or chained from inside by the appellant.
Once that vital fact is disbelieved the
entire story of the appellate having conceived himself in that room had to be
rejected. [953 C-E] (2) On the evidence, the quarters must be held to be in the
joint possession of both the accused. Under s. 35 of the Act which was never
considered by the courts below where any arms or ammunition are or is round in
any premises in he joint occupation or under the joint control of several
persons, each of such persons in respect of whom there is reason to believe
that he was aware of the existence of the arms and ,ammunition in the premises
unless the contrary is proved will be liable for the offence under s. 25(1) of
being in possession of an unlicensed fire arm. But, in the present case the
prosecution had not established the essential ingredients of the offence in the
light of the provisions of s. 3 5. As the gun was concealed in such a manner
that it was not visible to the naked eye, it could not be urged that when the
appellant was using the kitchen he would be aware of its existence in that
room. [953 F-H] (3) In cases of this nature involving the liberty and career of
a citizen _great care and attention should be devoted by the courts to all
questions or. law and fact. [954 A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 128 of 1969.
Appeal by Special Leave from the judgment and
order dated February 6, 1969 of the Patna High Court in Criminal Revision No.
541 of 1968.
949 S. C. Agrawala and V. J. Francis, for the
U. P. Singh, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Patna High
Court. Originally two persons Pabitar Singh (the present appellant) and Ram
Ashray Sharma who were both Loco employees of the Railway were tried under ss.
25 and 26 of the Indian Arms Act 1959, hereinafter called the "Act".
The learned Assistant Sessions Judge found each one of them guilty under both
the sections. The sentence imposed was 3 years rigorous imprisonment under S.
26 and one year's rigorous imprisonment under
S. 25 of the Act. The sentences were to run concurrently. The convicted persons
filed an appeal to the court of Sessions. The Additional Sessions, Judge, Gaya,
who heard the appeal found the appellant guilty under both the sections of the
Act. He maintained the sentence imposed on him. Ram Ashray Sharma was given the
benefit of doubt and acquitted. Pabitar Singh moved the High Court in revision.
His conviction under S.
26 of the Act was set aside by the High Court
but his conviction and sentence under s. 25 of the Act were upheld.
It is necessary to state a few facts. The
appellant and Ram Ashray Sharma were in joint occupation of quarter/No. 490-A
of the Loco Colony at Gaya. Some confidential information was conveyed by
Bishrampore police station to the Kotwali police station ,it Gaya that stolen
properties connected with a dacoity were lying concealed in the aforesaid
quarter. Consequently Rama Shankar Upadhvay Station House Officer, Gaya Kotwali
police station raided the quarter at 5.45 a.m. on November 5, 1962. He took
with him two witnesses P.W. 1 Vijay Kumar Dubey and P.W. 5 Deonadan Ram.
The quarter was found locked from outside.
Ram Ashray Sharma was reported to be on duty. He was sent for and he opened the
outer lock of the quarter with his key. It was alleged that when the search was
made inside the quarter the appellant was found in the quarter, inside. That
room was got opened. A country made gun was found lying between brick on the
top of which a tin containing flour in a bag covered with a brass thali was
placed, The bed room was searched and two live 12 bore cartridges were found
wrapped in a small cloth. These had been placed behind a framed picture of Lord
The learned judge of the High Court formed
the view that it the appellant could not be convicted in respect of the
cartridges which were found in the bed room which was in joint occupation of
Ram Ashray Sharma and the appellant.
According to the learned judge the inference
of conscious possession of the appellant 'had 950 been drawn by the cours below
from the fact that the picture behind which the cartridges were found was just
above the cot. The fact that that cot belonged to Pabitar Singh had been stated
by P.W. 1 alone. No reliance could be placed on that witness as he had to be declared
hostile. In view of the fact that the room was in joint possession of two
persons the learned judge held that no inference of the appellant's conscious
possession of the cartridges and their concealment by him could be drawn.
So far as the gun was concerned the learned
judge observed that it was found inside the kitchen room in which Pabitar singh
was found having concealed himself. He was the only occupant of the room at the
moment. He had bolted the room from inside. In spite of certain serious discrepancies
and other matters whichwill be presently discussed the learned judge accepted
the finding based mainly on the evidence of the Sub-Inspector that the
appellant had concealed himself in the kitchen room and the gun was found
concealed there and an inference could, therefore, be drawn that he was in
conscious possession of that gun.
We may at the stage refer to the relevant
provisions of the Act and the changes which appear to have been made in the Indian
Arms Act 1878 by the Act with which we are concerned, namely the Act 1959.
Section 14 of the Act of 1878 provided that no person shall have in his
possession or under his control any cannon or firearm or any ammunition or
stores except under a license and in the manner and to the extent permitted
thereby. Section 15 related to possession of arms of any description without
license prohibited in certain places. Section 19 (1 ) (f) to the extent it is
material was in these terms :S. 19 (1) "Whoever commits any of the
following offences (namely) :-(f) has in his possession or under his control
any arms, ammunition or military stores in contravention of the provisions of
section 14 or section 15;" shall be punished with imprisonment for a term
which may extend to three years or with fine, or with both".
The Act came into force on the first day of
October 1962 as it was on that date that the requisite notification was made.
Under sub-s. (3) of s. 1. Section 3 reads :"No person shall acquire , have
in his possession or carry any firearm or ammunition unless he holds in this
951 behalf a license issued in accordance with the provisions of this Act and
the rules made there under Provided that...................." Section 7
relates to prohibition of acquisition or possession etc. of prohibited arms or
Chapter II contains provisions relating to
licenses, Chapter IV to power and procedure and Chapter V to offences and
penalties. Section 25 to the extent it is relevant for this case is as follows
S. 25 (1) "Whoever-(a) acquires, has in his possession or carries in any
firearm or ammunition in contravention of section 3; or shall be punishable
with imprisonment for a term which may extend to 3 years or with fine of with
Section 35 provides :"Where any arms or
ammunition in respect of which any offence under this Act has been or being
committed are or is foundin any premises, vehicle or other place in the joint
occupation or under the joint control of several persons, each of such persons
in respect of whom there is reason to believe that he, was aware of the
existence of the arms or ammunition in the premises vehicle or other place
shall, Unless the contrary is proved, be liable for that offence in the same
manner as if it has been or is being committed by him alone".
In S. 25 (1) (a) only the words "has in
his possession" have been retained and the other words which appeared
disjunctively in s. 19 ( 1)(f) namely "or under his control" have
been omitted. Section 35 appears to have been newly inserted to clarify the
true position where any arms or ammunition are or is found in any premises etc.
in the joint occupation or under the joint control of several persons.
Each of such persons in respect of whom there
is reason to believe that he was aware of the existence of the arms and
ammunition in the premises unless the contrary is proved will be liable for
It is abundantly clear from a perusal of the
judgments of the courts below including the High Court that the case was
neither tried nor examined from the point of view of the provisions contained
in s. 35 of the Act. In the present case the quarter was admittedly in joint
occupation of both the appellant and Ram Ashray Sharma. It is true that at the
time of the raid Ram 952 Ashray Sharma was not present but the mere presence of
the appellant was not sufficient to make him guilty of the offence unless the
court could come to the conclusion that there was reason to believe that he was
aware of the existence of the gun in the premises. If the view of the courts
below is accepted that the appellant had concealed himself after having locked
the kitchen when the raid took place and that he was in exclusive possession of
the kitchen it might have been possible in the light of other facts and
circumstances to come to the conclusion that the conditions_laid down in S. 35
were satisfied. The courts have, however, ignored some salient facts which were
proved and which completely negatived the case of the prosecution that the
appellant had locked himself in the kitchen and was in sole occupation thereof.
The learned trial judge pointed out that the story that the appellant had
locked himself in the, kitchen was not supported by P.W. 1. In his view that
witness had displayed considerable sympathy for the accused person. He therefore
took into consideration the statement made by the witness to the police. P.W. 1
had been declared hostile. It has not been shown on behalf of the State how
such a course could be followed and any statement made by him could be relied
on particularly, when the aforesaid witness had been declared hostile and had
to be cross examined by the prosecutor. The appellant had also moved the trial
judge for Local inspection and it was pointed out to the judge that there was
no device at all in the door of the kitchen by which it could be closed from
inside Other inaccuracies in the description of the room which were to be found
in the statement of P.W. 14 Rama Shankar Upadhaya-the Investigating
Officer--were also pointed out. This is what the trial judge stated in his
judgment "It cannot, therefore, be denied that the description of the room
as given by the I.O .
applied to the latrine of the quarter rather
than the kitchen excent for its location i.e. that it was situated adjacent
east to the northern end (if the inner varandah. The latrine, it may be pointed
out is at some distance east of the varandah".
After stating a few facts the trial judge
came to the conclusion that the Investigating Officer had made some confusion
in the description of the kitchen. The learned Sessions Judge accented the
finding that the appellant bid decided to "close himself in the
Now the story that the appellant had
concealed himself inside the kitchen was substantially on the, evidence of P W.
14, the Investigating Officer. A perusal of his statement would not satisfy any
court that implicit reliance could be placed on his evidence. He had deposed in
categorical terms that he found the 953 door of the kitchen closed from inside.
He stated in crossexamination that the chains were fitted in the door from
inside as also from outside. The hinge for chaining the door was not fitted to
the door frame but it was fitted to the door plank. He also gave description of
the kitchen which was found to be different when the inspection was made by the
trial judge nor were any chains or marks of any chains was found in the door of
the kitchen as deposed to by P.W. 14. P.W. 2 Ram Swarath, officer-incharge,
police station Daltonganj who accompanied the raiding party also stated that
the door of the kitchen room was closed which was got unfastened. It is
implicit in his statement that there was some bolting or chaining device in the
door of the kitchen room by which it had been secured by the appellant.
This is not at all supported by the
inspection note. The allegation that the kitchen had been bolted from inside by
the appellant who had concealed himself there at the time of the raid finds
mention in the first information report as well. The courts below do not appear
to have looked at the prosecution evidence in the light of this gross
exaggeration which had been introduced about the door having been bolted or
chained from inside by the appellant where he was alleged to have concealed
himself. Once that vital fact is disbelieved the entire story of his having
concealed himself in the kitchen becomes doubtful. and worthy of rejection.
It has also been suggested in some of the
judgments of the courts and this fact has been relied upon on behalf of the
State before us that the kitchen was used only by the appellant and not by Ram
Ashray Sharma, the other occupant.
However, there is absolutely no material on
which any such suggestion could be justified or based. We are wholly at a loss
to understand how a quarter which consisted only of a bedroom and a kitchen
would not be in the joint possession of both these persons, namely,. the
appellant and Ram Ashray Sharma.
The next and the crucial question that arises
is whether the prosecution has established the essential ingredients of the
offence in the light of the provisions of S. 35 of the Act.
It has been urged that when the appellant was
using the kitchen it was legitimate to expect that he would be aware of the
existence of the gun which was concealed there. The gun was concealed in such a
manner that it was not visible to the naked eye. Although there may be very
rave suspicion that the appellant was aware of the existence Of the gun the
prosecution is bound to establish facts from which the court could have reason
to believe that he was aware of the existence of the unlicensed fire-arm. We
are not satisfied in the present case that any such facts have been
954 Lastly it cannot be over-emphasised that
in cases of the present nature where not only the liberty of a citizen is
involved but also his whole career on conviction a person in service is bound
to be dismissed great care and attention should be devoted by the courts to all
questions of law and fact which unfortunately had not been done in the present
case. That has led to miscarriage of justice. The appellant, is entitled to the
benefit of doubt and he is hereby acquitted.