Patna High Court - OrdersImdad Mian & Anr vs State Of Bihar on 9 December, 2010IN THE HIGH COURT OF JUDICATURE AT PATNA
                               CR. REV. No.1062 of 2010
                   1. IMDAD MIAN
                   2. AHMAD MIAN
                                        ...PETITIONERS
                                Versus
                   STATE OF BIHAR
                                         ... OPPOSITE PARTY
                   For the petitioners :Mr. Umesh Chandra Verma
                   For the State       :Mr. J.K.Singh, APP
                                                -----------


03.   09.12.2010Rule confined to the question of sentence only.Learned APP waives service of notice on behalf of

                   the State.Heard. With the consent of the parties, this

                   application is now finally disposed of at the stage of admission

                   itself.Petitioners herein are aggrieved by    judgment and

                   order dated 210.04.2010, passed learned Sessions Judge, West

                   Champaran, Bettiah in Cr. Appeal No. 29 of 1998, whereby the

                   appeal stood dismissed and the judgment and order of conviction

                   recorded by learned trial court was affirmed.The two petitioners are brothers. They were tried for

                   an offence punishable under section 25(1)(a) as well as 26/35 of

                   theArms Act. As per the FIR, on getting confidential

                   information about manufacturing of fire-arms in the house of the

                   petitioners, the police raided the same. Few persons tried to

                   escape from the house in question who were offered chase and

                   captivated. Petitioners are   among those persons. A search was

                   carried out in the house of the petitioners        and seizure(s)2was/were effected. At the trial, 11 witnesses were examined to

support the prosecution case.     P.Ws. 5 & 6 are seizure list

witnesses. P.Ws. 1 & 2 have not been relied upon by the

prosecution and have thus been declared hostile. Remaining

witnesses have supported the prosecution case. So far as P.Ws.

5 & 6 are concerned, they admitted their signatures on the

seizure list (Exts. 1 and 2) but deposed to the effect that the

same was not prepared in their presence. On a consideration of

materials available on record, trial court found and held the

petitioners were guilty of aforesaid charges and accordingly

sentenced them to undergo R.I. for three years with fine having

default clause and also R.I. for six months with fine having

default clause undersections 25(1)(a)and26/35Arms Act

respectively. Aggrieved by aforesaid judgment and order, they

preferred appeal which was dismissed, as noted above. Hence

the application.Learned counsel for the petitioners submits that

although the trial concluded in less than a year, but the appeal

remained pending for about 12 years. It is next contended that at

the time of recording conviction they were found fairly young.

Referring to trial court judgment, it is submitted that there was

no past conviction found and recorded against them. It is the

submission of the petitioners that in view       of these facts

appearing from the records, they ought to have been dealt with

under the provisions ofProbation of Offenders Act. By not

doing so, learned trial court has committed an illegality.     It3appears from paragraph 13 of the appellate court judgment that

entire aspect of the matter including appraisal of evidence was

made by the appellate court whereafter it has been found that

having regard to the evidence on record conviction and sentence

recorded by trial court did not require any interference. The

appellate court, therefore, re-scanned the evidence and materials

on record and found in paragraph 13 that they were sufficient

enough to prove the guilt.Learned APP, on the other hand, submits that there

is/are concurrent findings of guilt recorded by two courts below

which cannot be said to be perverse and/or perfunctory. It is

submitted that appellate court also re-scanned and re-appraised

the evidence and thereby concurred with the findings recorded

by trial court.I have considered the submissions advanced on

behalf of the parties.Petitioners were found involved in manufacturing

fire-arms. The offence for which they have been held guilty is

serious in nature and has become a menace. It is seen from the

trial court judgment that relevant consideration in this regard

was not made by trial court but having regard to the materials on

record and charge(s) for which they have been held guilty, this

Court is of the view that they do not graduate for their release

under the provisions ofProbation of Offenders Act. However,

having regard to the facts that they had to fight the trial and the

appeal remained pending for 12 years, a lenient view of the4matter, so far as the quantum of sentence is concerned, can be

     taken in the present case.Consequently, while upholding the conviction

     recorded by learned trial court and duly affirmed by learned

     lower appellate court, R.I. for three years awarded undersection

     25(1)(a)of the Arms Act is reduced to R.I. for two years. Other

     part(s)/condition(s) of the sentence/conviction shall remain

     intact.With this modification in sentence, the application is

     dismissed.( Kishore K. Mandal )
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