1. The accused Santappa was charged before the learned Civil Judge and Judicial Magistrate, First Class, Mudhol, with having committed an offence under Section 19(f), Indian Arms Act. The learned trial Magistrate acquitted the accused. Against that order of acquittal the State of Bombay has preferred an appeal to this Court.
2. It was the case for the prosecution that on 29-5-1953, Sub-Inspector Hasabi went to the village of Belagali with the Sub-Divisional Officer, Bagalkot, in connection with investigation into an offence of a dacoity. The Police desired to search the house of Santappa and be was accordingly called and questioned regarding the offence of dacoity under investigation.
In the course of the enquiry the accused volunteered to produce a pistol which, he stated, he had hidden in his house. The police officers accompanied by the accused and the Panchas, went to the house of Santappa at about 5 P. M. on 29-5-1953. In the presence of the panchas and the police officers, Santappa produced a pistol from the roof of his house stating that he had kept it there. Santappa had no licence to possess any fire arms. Accordingly he was charge-sheeted for having committed an offence under Section 19(f), Indian Arms Act.
3. At the trial the prosecution examined two Panchas Sadashiv Bhaskar Sutar and Balappa Gurappa Dhaduti. The prosecution also examined Sub-Inspector Hasabi. The panchnama made at the time of attachment of the pistol was also duly proved.
4. Now, the evidence for the prosecution established that on 29-5-1953, the accused produced a pistol from his house stating that he had kept it in the roof. The panchas were present at the time when the pistol was produced. It was the case of the accused that he was not present at the time of the search by the police and that he had not produced any pistol. He also denied that he was in possession of the pistol which was produced before the Court.
5. The accused examined a defence witness Basappa Yellawa Bhavimani, who stated in his evidence that on 29-5-1953, the accused was not present at the time of the police raid and that when he returned the raid was completed. The witness further stated that the accused had five brothers and there were as many as 20 persons residing in the house of the accused.
6. The learned trial Magistrate was of the view that the evidence given by the Panchas and the statement made in the panchnama that the accused stated before the police that he had hidden the pistol were inadmissible evidense. He further held that the accused was not the eldest member in the family, that he had two brothers who were senior to him and that the accused was not in management of the property of the family.
In the view of the learned trial Magistrate the fact that the accused produced before the police a pistol did not indicate that he had exclusive possession of the pistol. On the view by him, the learned trial magistrate held that the evidence led by the prosecution was not sufficient to establish that the accused was in possession of the offending pistol. He accordingly acquitted the accused. In our view, the order of acquittal passed by the Learned trial Magistrate cannot be sustained.
7. In a judgment delivered by a Full Bench of this Court in -- 'Rama Shidappa v. State' : AIR1952Bom299 it has been held that if the statement made by an accused person when in custody of a police officer results in discovery of any weapon or article, the words including the statement with regard to the authorship of concealment such as 'I have concealed' or 'I have hidden' are admissible under Section 27, Indian Evidence Act.
It appears that the learned trial Magistrate's attention was not directed to the Full Bench Judgment, and he relied upon a judgment of this Court in -- 'Rangrao Dnyanu v. State' : AIR1952Bom72 the principle whereof does not appear to have been accepted by the Full Bench. The statement made by the accused that he had hidden the pistol in the roof was, therefore, admissible. The statement has been proved by the contents of the Panchanama and also by the statement made by the Panchas Sadashiv Sutar and Balappa Gurappa Dhaduti.
8. The learned trial Magistrate appears to have also thought that at the time when the pistol was produced the Panchas were not present. According to the learned trial Magistrate, the accused went into his house and brought out the pistol and in so holding he appeared to rely upon certain statements made by the Panch Sadashiv in his cross-examination. It has, however, to be remembered that in examination-in-chief the witness Sadashiv did deposs that the contents of the panchanama were correct.
The residential house of the accused is a small place and it appears that the police party and the Panchas did not actually enter the house when the accused took out the pistol from the roof. But that does not mean that when the police officers and the Panchas were standing outside the house they were unable to see the accused taking out the pistol from the roof.
9. The learned Magistrate was also of the view that because there were several persons residing in the house of the accused including his two elder brothers, exclusive possession of the pistol by the accused could not be held proved. Section 19(f), Indian Arms Act does not require that a person must have exclusive possession of an arm or weapon. From the evidence it appears to be clear that the accused had possession of the pistol. It was not necessary for the prosecution to establish that the accused had exclusive possession of the pistol.
10. In our view, the learned trial Magistrate was not justified on the evidence in acquitting the accused. The order of acquittalpassed by the learned trial Magistrate is, therefore, set aside and the accused is convicted ofan offence under Section 19 (f), Indian Arms Actand is sentenced to suffer rigorous imprisonment for a period of one month. Warrant toissue for the arrest of the accused.
11. Order accordingly.