JUDGMENT K.N. Ojha, J.
1. Instant revision has been preferred by accused Sariful Hasan @ Foto, S/o Ramzani, resident of village Naglataha Mauja Saidpura, post office Rajpur Keseria Bala, district Moradabad, against order of conviction and sentence dated 14.7.1987 passed by 3rd Additional Sessions Judge, Moradabad, in Criminal Appeal No. 149 of 1986, Shariful Hasan v. State of U.P. by which order of conviction and sentence dated 20.8.1986 passed by 1st Munsif/Lower Criminal Court, Moradabad, in Case No. 96 of 1986, State v. Shariful Hasan @ Foto convicting him Under Section 25A of Arms Act and directing to undergo sentence of one year's R.I. was confirmed.
2. Heard Sri K.K. Arora, learned Counsel for the revisionist, learned AGA and have gone through the record.
3. According to prosecution on receipt of information on 8.9.1984, V.S. Rana, the then Station Officer, police station Dilari, PW 1, alongwith police Sub Inspector C.S. Yadav, PW 2, Mustafa Ali PW 3, Khursheed PW 4 and other police personnel raided the house of the accused at about 7.30 A.M. in village Saidpura, police station Dilari, district Moradabad, and recovered one SBBL Gun no. 6591 Make G-2, made in India, 8 live cartridges and 16 empty cartridges in presence of accused Shariful Hasan. These illegal arms were kept under a Dari in the room facing north of the house of the revisionist. License was demanded but the revisionist failed to produce the same. Illegal arm was seized and recovery memo was prepared. Investigation was done after sanction was obtained from the District Magistrate, Moradabad, thereafter charge sheet was submitted against the revisionist.
4. The revisionist denied his participation in the crime. The prosecution examined four witnesses, as mentioned above. No witness was examined by the accused- revisionist. It was submitted by the learned Counsel for the revisionist that evidence was not reliable and the recovery was planned by the police. Exclusive possession of the accused in respect of the recovered articles and the house was not proved. The sanction was not in accordance with law but all these contentions were found to be not maintainable. It was held by the learned Magistrate that two police witnesses had made statement about the presence of the revisionist at his house wherefrom the gun alongwith cartridges were recovered. No one except the revisionist was present at the house at the time of the recovery. The revisionist had one minor son and one minor daughter at that time. At the time of the recovery there was no other adult member in the family and he was in exclusive possession of the house. The revisionist cited 1960 Cri. L J. 1647, Mahadeo Bind v. State of Bihar 1967 Cri. L. J. 237, State of Bihar v. Madan Lal, to show that exclusive and conscious possession of incriminating article must be with the accused before the order of conviction is passed. Following the law laid down in the case holding that the revisionist was in exclusive and conscious possession of the gun of which no license could be produced by him and also of the cartridges. The order of conviction and sentence was passed by the learned Magistrate. Appeal was preferred against the order of the Magistrate, which was dismissed by the 3rd Additional Sessions Judge, Moradabad, against which instant revision has been preferred,
5. A perusal of the judgments of the both the courts below show that a consistent finding of fact has been made about the recover of SBBL Gun no. 6591 make G-2, 8 live cartridges and 16 empty cartridges on 8.9.1984 at about 7.30 A.M. from the house of the revisionist from village Saidpura, police station Dilari, district Moradabad. Presence of PW 1, V.S. Rana, the then Station Officer, police station Dilari, PW 2 C.S. Yadav, police Sub Inspector and independent public witnesses PW 3 Mustafa Ali was held by both the courts below. Besides the two police witnesses, who made recovery of the gun and the cartridges, Mustafa, who is resident of the same locality where from the recovery was made was an independent person, who had no enmity with the revisionist, he supported the prosecution story and on the statement of these three witnesses recovery of the gun and the cartridges was found proved. Another public witness PW 4 Khursheed did not support the prosecution story hence he was declared hostile. The statement of two police witnesses and PW 3 Mustafa Ali was found sufficient to prove the recovery and it was also found that since in the house of the revisionist there were his minor son and his minor daughter, who were not present at the time of the recovery and only the revisionist was present in his house where under the Dari these incriminating articles were found, therefore, exclusive and conscious possession of the revisionist was found. The learned Sessions Judge confirmed the finding made by the learned Magistrate.
6. It has been submitted by Sri Arora, learned Counsel for the revisionist that the conscious and exclusive possession of the revisionist is not proved in this case by the prosecution, therefore, the order of conviction and sentence deserves to be set aside. Reliance has been placed on 1960 Cri. L. J. 1647, Mahadeo Bind v. State of Bihar, wherein it has been laid down by the Hon'ble High Court of Patna that where the house from which the incriminating article was recovered was occupied jointly by father and the son. The father cannot be convicted for the offence under Section 411 I.P.C. merely on the ground that he was the Karta of the joint family unless it was established that the portion of the house from which recovery was made was in his exclusive and conscious possession. Reliance was also placed on AIR 1941 Patna 223, Dwarika Lohar v. Emperor, wherein it was laid down that where dacoity was committed by the son and the mere fact that one of the articles taken in the dacoity was found in the house, which was jointly occupied by the son and his father, there was no ground to convict the father Under Section 412 I.P.C. because the presumption in such case was that the article remained in possession of the son.
7. Learned Counsel for the revisionist has also placed reliance on AIR 1967 Patna 63, State of Bihar v. Madan Lal Agarwalla and Ors. wherein it was laid down by Hon'ble High Court of Patna that stolen goods were recovered in presence of the accused but there was no evidence to show that the room wherein the stolen articles were found was in exclusive possession of the accused, therefore, placing reliance on AIR 1933 Patna 149, Santokhi Beldar v. Emperor, AIR 1956 SC 181, Baladin v. State of U.P., , Daneshwar Thakur v. State, , Moti Lal v. State, , State of U.P. v. Deoman Upadhyaya, , Chinnaswamy Reddy v. State of Andhra Pradesh, Udai Bhan v. State of U.P. it was held that if conscious and exclusive possession of stolen article was not found, the accused could not be punished,
8. In , Gunwantlal v. State of M.P. it has been laid down by the Hon'ble Supreme Court that the first pre-condition for an offence under Section 25(1)(a) of Arms Act is the element of intention, consciousness or knowledge with which a person possessed the firearm. That possession need not be physical possession but can be constructive, having power and control over the gun. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it, necessary to determine whether that person was or was not in possession of the thing in question.
9. Thus before an order of conviction and sentence is passed against an accused first it is to be proved that the person had conscious and exclusive possession of the incriminating article. In this case recovery is proved by two police witnesses and one independent witness of the same locality. No license of the SBBL gun and cartridges was produced by the revisionist on the spot. In the cited case exclusive possession of concerned accused was not found proved because there were other adult members in the family or adult son, who committed theft or robbery and thereafter incriminating materials were found in joint possession of the family inside their house but in instant case where only minor son and minor daughter were the family members of the revisionist at the time of the recovery and they were not physically present at that time inside the house when the recovery was being made, it was only the revisionist alone, who was found present inside the house when recovery of SBBL gun and cartridges were made, the accused being all alone and being the sole adult member of the family and also keeping it not at normal place inside the house beneath a Dari, which was lying inside the house shows that the revisionist had guilty intention to conceal the SBBL gun and the cartridges hence it was found beneath the Dari. His alone presence at the time of recovery and he being the only adult member of the family, the incriminating article was found beneath the Dari inside the room. It shows that the revisionist had conscious and exclusive possession of the incriminating article, therefore, if both the courts below have disbelieved the allegation of the defence that he was not in exclusive and conscious possession of the SBBL gun and cartridges, does not suffer from any illegality. The SBBL gun is not an article to be used by minor son or minor daughter. No other adult member was living in the House of the revisionist in those days by whom the SBBL gun could be used. The license of the gun could not be produced by the revisionist before the police officers making recovery of the gun and the cartridges. All this shows guilty, conscious and exclusive possession of the revisionist. Therefore, the findings made by both the Courts below do not suffer from any illegality and the findings have been made on the basis of evidence, considering the facts and circumstances of the case. The findings of both the courts below are consistent and are findings of fact, which do not suffer from any illegality, therefore, it does not call for any interference by this Court.
10. Learned Counsel for the revisionist has submitted that the revisionist is very old person, therefore, a lenient view should be taken. Considering the allegations that he is an old person, it would be proper that a lesser sentence is awarded but it is not a case in which a country made pistol was recovered, It is a case in which SBBL Gun no. 6591 was recovered and the revisionist did not disclose from where the gun came in his exclusive possession, therefore, the submission of the learned Counsel for the revisionist that the accused be relieved only by imposing fine would not be in the interest of justice and in accordance with law. However, considering the old age of the revisionist and the fact that the case is pending since 1986 it would be proper if a lesser sentence is awarded to the revisionist.
11. In view of above discussion this Court arrives at the conclusion that the revision deserves to be dismissed with modification of sentence.
12. The revision is dismissed and the order of conviction passed by both the courts below against the revisionist Shariful Hasan @ Foto Under Section 25A of Arms Act is confirmed but the sentence is modified and is reduced to six months' R.I. only. Shariful Hasan is on bail. His bail bonds are forfeited.
13. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Moradabad, who will issue coercive process against the revisionist to get him arrested and sent to jail to serve out the sentence of six months' R.I. The C.J.M. will certify the compliance of this order to this Court within sixty days from the date of receipt of this order.