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2007 DIGILAW 608 (MP)

Boby Raja @ Yatendra Singh v. State of M. P.

2007-06-13

RAKESH SAKSENA

body2007
ORDER 1. Order passed in this revision shall govern the disposal of Criminal Revision No. 505/ 2002 (Deen Dayal Chourasia v. State of M.P.) and Criminal Revision No.519/2002 (Adil v. State of M.P.) and Criminal Revision No.760/2002 (Satish v. State of M.P.), which arise out of a common order dated 3.4.2002, passed by III Additional Sessions Judge, Sagar, in Sessions Trial No.444/2001, framing the charge under section 411 of IPC and section 25 of the Arms Act against the applicants. 2. The facts of the case are that one Ram Singh Tholia, Additional Commissioner (Retd.) was found murdered in his house between 6.11.1998 to 8.11.1998. His maid servant viz Siyarani was also found dead in the house. On a report lodged with Police Cantt., Sagar, Crime No.521/1998, for the offence u/s 302 of IPC, was registered against unknown miscreants. During investigation, accused Lakhan was arrested. The charge sheet was filed against him. However, in Session Trial No. 87/1999, he was acquitted of the charge on 30.11.1999. Later on, accused Ashraf and others were arrested by Police Kotwali Chhatarpur, u/s 41 (1) (d) of the CrPC and it was detected that they had also participated in the said offence. It is said that during investigation, on the memorandum given u/s 27 of the Evidence Act, it was disclosed that a rifle of 360 bore, belonging to deceased, was sold by him to petitioner Boby Raja, who again sold it to accused Shinku Raja, who had handed over the gun to petitioner Adil, for selling. In consequence of the information furnished by accused Shinku Raja, the said gun was seized from the possession of petitioner Adil. Similarly, on the information furnished by accused Munna, u/s 27 of the Evidence Act, a 12 bore gun was seized from the possession of petitioner Satish Isai on 2.9.2001. On 3.9.2001, another 12 bore gun, allegedly belonging to deceased, was seized from petitioner Deendayal. No licence of the aforesaid guns were found with the petitioners. Trial Court, on the basis of recovery of the aforesaid guns, framed the charges against the petitioners for the offence u/s 411 of IPC and section 25 of the Arms Act. Aggrieved by the order of framing charge, petitioners have filed these revisions. 3. Learned counsel for the petitioners submit that there is absolutely no iota of evidence justifying the framing of the charge against the petitioners. Aggrieved by the order of framing charge, petitioners have filed these revisions. 3. Learned counsel for the petitioners submit that there is absolutely no iota of evidence justifying the framing of the charge against the petitioners. Shri Manish Datt, counsel for petitioner Boby Raja, submitted that the only material against the petitioner was that of a memorandum u/s 27 of the Evidence Act regarding information furnished by accused Ashraf that he had sold a rifle to him. The aforesaid rifle was not recovered from the possession of Boby Raja in consequence to the information furnished by accused Ashraf, on the contrary, another memorandum u/s 27 of the Evidence Act was recorded indicating that petitioner Boby Raja sold that rifle to coaccused Shinku Raja on 4.9.2001. Shinku Raja, in his turn, again disclosed that the said rifle was handed over by him to petitioner Adil and ultimately on the information of accused Shinku Raja, rifle was seized from petitioner Adil on 5.9.2001. On perusal of material on record, it is seen that on the information of accused Munna on 2.9.2001, a 12 bore gun was seized from the possession of Satish Isai and on 3.9.2001 one 12 bore gun was seized trom the possession of petitioner Deendayal. Learned counsel, in respect of petitioner Boby Raja, submitted that since no weapon was seized in consequence of the information furnished by Ashraf or petitioner Boby Raja himself, there is no incriminating evidence against him. Therefore, no charge u/s 411 of IPC as well as u/s 25 of the Arms Act can be framed against him. 4. On perusal of record, it is seen that there is absolutely no evidence or material on record to indicate that the guns seized from petitioners Satish, Deendayal and Adil belonged to deceased and were dishonestly received or retained by them knowing or having reason to believe that the same were stolen properties. In the absence of knowledge on the part of accused that the property recovered from him was stolen and in the absence of evidence that accused had any reason to believe that the property was stolen property, mere possession of property cannot make him liable for the offence u/s 411 of IPC. 5. In case of petitioner Boby Raja, it has not been said that any gun was recovered from his possession. 5. In case of petitioner Boby Raja, it has not been said that any gun was recovered from his possession. Merely on the basis of successive informations about the possession of the weapon, given to police officer by different persons and the weapon being recovered from the last person, the information on each occasion cannot be held to be covered by section 27 of the Evidence Act. The earlier informations can be termed as only the clues for investigation not forming the part of admissible evidence. 6. In view of the above, it cannot be said that any rifle was recovered from the possession of petitioner Boby Raja. 7. In respect of petitioner Satish, Deendayal and Adil, there is prima facie material on record to show that the guns were seized from their possession, though there is total lack of evidence that the said guns were received or retained by them knowing or having reason to believe that the same were the stolen properties. 8. Accordingly, there appears no evidence against the petitioners to hold them liable for facing the charge for the offence u/s 411 of IPC. 9. 8. Accordingly, there appears no evidence against the petitioners to hold them liable for facing the charge for the offence u/s 411 of IPC. 9. In case Dilawar Babu Kurane v. State of Maharashtra [AIR 2002 SC 567], Supreme Court observed that: "In exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are eqally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused and in exercising jurisdiction under section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial {See Union of India v. Prafull Kumar Samal and another [(1979) 3 SCC 5]}" 10. Taking into consideration all the facts and circumstances, this Court is of the opinion that there is no material on record for framing the charge against the petitioners for the offence u/s 411 of IPC and they deserve to be discharged on that count. There being no material to show that the gun was seized from the possession of petitioner Boby Raja, he deserves to be discharged from the offence u/s 25 of the Arms Act also. 11. There being no material to show that the gun was seized from the possession of petitioner Boby Raja, he deserves to be discharged from the offence u/s 25 of the Arms Act also. 11. So far as petitioners Deendayal, Adil and Satish are concerned, there is material on record to show that the guns were seized from their possession and they had no valid licence for holding the said guns, as such, the order passed by the trial Court framing the charge against them for the offence u/s 25 of the Arms Act is affirmed. 12. Consequently, Criminal Revision No.462/2002 filed by petitioner Boby Raja is allowed. He is discharged of all the charges. Criminal Revision No.505/2002 filed by Deendayal, Criminal Revision No.519/2002 filed by Adil and Criminal Revision No. 760/2002 filed by Satish are partly allowed. The charge framed against them u/s 411 is set aside. However, the charge framed against them u/s 25 of the Arms Act is affirmed. 13. A copy of this order shall be kept in the files of Criminal Revision No.505/2002, Criminal Revision No.519/2002 and Criminal Revision No.760/2002.