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Madhya Pradesh High Court · body

2007 DIGILAW 207 (MP)

Pappe @ Sukhvinder Singh v. State of M. P.

2007-02-20

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed by the appellant against the judgment of conviction passed by Special Judge and Additional Sessions Judge, Gwalior in ST No. 242/99 dated 15.4.2000 by which the appellant was convicted under section 25 (I-b) (a), read with section 3 of the Arms Act and sentenced to undergo RI for two years and fine of Rs. 100/- withdefault stipulation. 2. In short the story of the prosecution is that on 15.1.1999 the appellant has annoyed with the complainant that he has not employed him alongwith co-accused (Acquitted) as driver in his truck and the appellant fired him by country-made gun which caused injuries to his neck. On hearing his cry Tesu alias Suresh (PW 7) and Virendra Singh (PW 6) came for rescue. On seeing them appellant and co-accused ran away from the spot. Report was lodged and after investigation charge sheet was filed and after trial appellant was convicted under section 25 (I-b) (a), read with section 3 of the Arms Act, while appellant and co-accused were acquitted for the charge under section 307 read with section 34 IPC. 3. Counsel for the appellant submits that the recovery of country made gun was made under memorandum 27 of the Evidence Act which is Ex. P-7 and the seizure memo was made vide Ex. P-8. but the witness of the memorandum and seizure have turned hostile and have not supported the evidence of the Investigating Officer Surendra Rai Sharma (PW 10). Therefore, it is submitted that the recovery of country-made gun was not proved from the possession of the appellant. Further it is also submitted that the recovery was made from the upper roof of the place where cattle were kept. Hence, the recovery was not made from the possession of the appellant. It is also submitted that from the testimony of Brijmohan Sharma (PW 12), the weapon sent to the District Magistrate for sanction was not sealed. The Investigating Officer Surendra Rai Singh (PW 10) stated in his statement that it was given to the witness in the sealed cover. 4. S urendra Rai Sharma (PW 10) has deposed that on 16.1.1999 during the course of investigation on the basis of information given by the appellant the memorandum (Ex. P-7) was prepared in the presence of Suresh and Virendra and thereafter the articles were recovered vide memo Ex. P-8 in the presence of the witness. 4. S urendra Rai Sharma (PW 10) has deposed that on 16.1.1999 during the course of investigation on the basis of information given by the appellant the memorandum (Ex. P-7) was prepared in the presence of Suresh and Virendra and thereafter the articles were recovered vide memo Ex. P-8 in the presence of the witness. But both the witnesses have not corroborated the version of the Investigating Officer Surendra Rai Sharma (PW 10). Further it is stated by Surendra Rai Sharma (PW 10) that after the recovery the articles were seized on the spot and thereafter it was sent to D.R.P. line for investigation. But Brijmohan Sharma (PW 12) has not supported the version of Surendra Rai Sharma (PW 10) because in para No.2 he admits that the articles were not in sealed cover and in the article there was no signature of the appellant or the witnesses. About seal of the article the evidence of Head Constable Santosh Singh (PW 3) was also not satisfactory, in view of para 3 of his statement. The sanction report was proved by Brijmohan Sharma (PW 12) which is Ex. P-16. 5. From the discussion above, it appears that the recovery of the article is not proved beyond doubt because both the independent witnesses have not proved the memorandum and the seizure memo of the article. Further it is not proved that whether it was sealed at the time of seizure because both Brijmohan Sharma (PW 12) and Santosh Singh (PW 3) have not supported in their cross examination. The prosecution has failed to establish whether the article was the same which was recovered from the possession of the appellant and it was sent for sanction before the sanctioning authority and how the seal has been broken when it was sealed at the time of seizure no explanation was given from the side of the prosecution. Therefore, the prosecution has not proved the offence beyond reasonable' doubt and therefore, the conviction recorded under section 25 (I-b) (a), read with section 3 of the Arms Act is set aside and the appellant is acquitted accordingly. The bail bond of the appellant shall stand discharged. Appeal is allowed accordingly.