Phamwang Lowang, S/o. Shri Jawang Lowang vs State Of AP, represented by the PP of AP.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 1010

IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH), (ITANAGAR BENCH)
ARUN DEV CHOUDHURY, J.
Phamwang Lowang, S/o. Shri Jawang Lowang – Petitioner
Versus
The State Of AP, represented by the PP of AP. and Anr. – Respondents
Crl. A. No.2 Of 2020
Decided On : 22-09-2022

Advocates Appeared:
For the Appellant : Mr. D.K. Deori, Mr. E Melo.
For the Respondents: Ms. L. Hage.

Headnote:
Criminal Procedure Code, 1973 – Section 164, 313 – Arms Act, 1959 – Section 7, 25 – Recording of confession and statements – Power to examine the accused – Learned counsel appellant and also heard learned Additional P.P. for State respondent – Appeal against judgment learned Session Judge Changlang and Longding in Sessions Case present appellant was convicted possessing one Chinese made MQ-5 Assault Rifle along of live ammunition in violation – Held, Court considered such ratio is not applicable in given fact and circumstance of present case – Case as discussed ratio laid down in Shankaria rather helps case of accused inasmuch as confession made by accused do not fit in rest of evidences case of accused that he came to surrender before police being frustrated of organization joined due to atrocities by arms forces and other extremists organization done case of prosecution is that he was caught read handed along with prohibited arms from place of occurrence – Order Accordingly.

JUDGMENT :

1. Heard Mr. D.K. Deori, learned counsel for the appellant and also heard Mr. G. Tado, learned Additional P.P. for the State respondent.

2. This is an appeal against the judgment and order dated 11.02.2020, passed by the learned Session Judge, Tirap, Changlang and Longding in Sessions Case No. 83/2019, whereby, the present appellant was convicted under Section 25(1A) of the Arms Act, 1959 for possessing one Chinese made MQ-5 Assault Rifle along with 02 magazines and 56 Nos. of live ammunition in violation of the Section 7 of the Arms Act and sentenced him to a rigorous imprisonment for 10 years and a fine of Rs. 10,000/-.

3. The prosecution was lodged on the basis of a F.I.R. filed by one O.R. Sharma, Assam Rifle Personnel, interalia, alleging that based on intelligence input about presence of Armed NSCN (K) in village Borduria, a search operation was carried out on 19.02.2014 and apprehended the accused with one MQ-5 assault rifle (Chinese made), Magazines 2 Nos. and 56 round of ammunition etc. It was further alleged that the said accused is also wanted in connection with some other cases.

4. On the basis of such information, the Officer-in-charge of Khonsa P.S. namely, S. S. Singhera seized the arms and ammunition in presence of one Subhash Singh RS M. No.5010877 and another person namely, Sher Bahadur Khatri, a personnel of Assam Rifle.

5. During investigation, the investigating authority got the confessional statement of the accused recorded under Section 164 Cr.P.C. and finally submitted Charge-sheet on 05.08.2014 under Section 25(1A) of the Arms Act.

6. After committal, the learned Trial Judge charged the accused for commission of offence under Section 25(1A) read with Section 7 of the Arms Act, which the accused pleaded not guilty and accordingly, the trial started.

7. To bring home the charges, the prosecution examined as many as 10 witnesses and exhibited the seizure list and the statement of the accused recorded under 164 Cr.P.C., and also exhibited the arms as materials exhibit. After completion of the trial, the accused was examined under Section 313 Cr.P.C., the accused had not laid any defense evidence. On the basis of the materials available on record, the learned Trial Court below passed the impugned judgment and sentenced him. Since the date of arrest till date the appellant is in custody for almost 8 years. Being aggrieved, the present appeal is preferred.

8. The learned counsel for the appellant argues that the prosecution has miserably failed to bring home the charge under Section 25(1A) of the Arms Act, 1959. The further contention of the learned counsel for the appellant is that the prosecution has also failed to prove that the materials exhibits are prohibited weapons by bringing any expert. And therefore, no case under Section 25(1A) or Section 7 of the Arms Act was made out.

9. The learned counsel further argues that the necessary requirement under Section 313 of Cr.P.C., was also not followed while recording the statement of the accused by the learned Court below.

10. In support of his contentions, the learned counsel for the appellant relies on the judgment of the Hon’ble Patna High Court in the case of Kapildeo Thakur vs. State of Bihar, reported in 2022 SCC Online PAT 1881 and the judgment of a Co-ordinate Bench of this Court in Rohmingthanga Vs. State of Mizoram & Anr., reported in 2021 SCC online Gau 2586.

11. To buttress his argument to the point of non-adherence of procedure laid down under 313 Cr.P.C., the learned counsel for the appellant relies on the decision of this Court in the case of Jai Prakash Tiwari Vs. State of Madhya Pradesh, reported in 2022 SCC online SC 966.

12. Countering the arguments of the learned counsel for the appellant, Mr. G. Tado, learned Additional P.P. for the State submits that the prosecution has fully established their case and it is also clearly established that it is the accused from whose possession the arms were recovered. The learned counsel contend