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2008 DIGILAW 1350 (MP)

Ram Lakhan v. State of M. P.

2008-11-19

S.S.DWIVEDI

body2008
JUDGMENT 1. The appellant has preferred this criminal appeal under sections 374 (2) of CrPC feeling aggrieved by the impugned judgment dated 3.9.2002 passed by First ASJ, Shivpuri in ST No. 278/2000, whereby co-accused as well as the present appellant have been acquitted from the offence under section 399 and 402 of IPC but held the appellant-accused guilty under section 25 (I-B) (a) of the Arms Act and he has been sentenced to I year's RI with a fine of Rs. 100/-. In default of payment of fine, he has been further ordered to suffer imprisonment for I month's RI. 2. Briefly stated facts of the case are that Station House Officer of Police Station Bairad district Shivpuri, Avneet Sharma (PW 10) had received an information on 15.10.2000 that few dacoits assembled near Parvati river for preparation or commission of offence of robbery. On the basis of this information, the police party went to the spot and asked the persons assembled there for surrender and thereafter arrested the present appellant armed with 315 bore katta with cartridge and second accused Naresh also. After arrest, the police returned to the police station and registered the case under sections 399 and 402 of IPC and also under section 25 (I-B) (a) of the Arms Act, recorded the statement of the persons of police officials. Thereafter, the police had obtained permission for the prosecution under section 25 of the Arms Act from the District Magistrate as required under the Arms Act and sent the seized arms for its examination to the D.R.P. line from where report was received which is Ex. P-14 and after due investigation, charge sheet has been filed. 3. Appellant-accused abjured the guilt and his defence was of false implication in this case. Learned trial Court after due appreciation of the evidence on record acquitted the appellant-accused from the charge under section 399 and 402 of IPC, but held him guilty for the offence under section 25 (I-B) (a) of the Arms Act and sentenced him as stated hereinabove. Feeling aggrieved by which, the appellant has preferred this appeal. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. Feeling aggrieved by which, the appellant has preferred this appeal. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. It is submitted by learned counsel for the appellant that the appellant has been acquitted from the main charge for the alleged preparation of dacoity and the trial Court wrongly held him guilty for the offence under section 25 (I-B) (a) of the Arms Act whereas independent panch witness namely Sultan (PW 3) and Prabhudayal (PW 7) have not suppoted the seizure of firearm from the possession of the appellant-accused. It is further submitted that as per the rules it is required that after the seizure, the seized article should be properly sealed in a cover but no such procedure has been adopted by the seizing officer Avneet Sharma (PW 10). It has also been pointed out by the Arms Moharrir Janki Prasad Gaud (PW 4) who examined the concerning seized country made pistol that the seized article was given to him for its examination in an open condition without any proper sealed cover. Therefore, this fact cannot be found proved that same weapon has been seized from the possession of the appellant accused and, therefore, the learned trial Court has wrongly held the appellant-accused guilty for the offence punishable under section 25 (1B) (a) of the Arms Act. Hence, he prayed for setting aside of the judgment of conviction and sentence passed by the trial Court. 6. Learned PP appearing for the State supported the impugned judgment and prayed for dismissal of the appeal. 7. To bring home the charge as found proved by the trial Court, the prosecution has examined Avneet Sharma (PW 10), the seizing officer who in his statement has stated that at the time of arrest of the appellant accused Ram Lakhan, he seized one country made pistol from his possession as per the seizure memo Ex. P-ll, but in this statement he has not clarified that after seizure of the concerning weapon, this has been covered properly and thereafter sealed it properly also. It is also to be noted that independent panch witness Sultan (PW 3) and Prabhudayal (PW 7) have also stated that no country made pistol had been seized before them as per seizure memo Ex. P-ll from the possession of the appellant-accused Ram Lakhan. . 8. It is also to be noted that independent panch witness Sultan (PW 3) and Prabhudayal (PW 7) have also stated that no country made pistol had been seized before them as per seizure memo Ex. P-ll from the possession of the appellant-accused Ram Lakhan. . 8. The aforesaid fact has also been proved by the Arms Moharrir, Janki Prasad Gaud (PW 4) who examined. seized country made pistol and he clearly admits that seized pistol has been submitted for its examination in an open condition and it has not been brought before him in sealed cover and after proper seal of the concerning police station. In view of that, it has become doubtful that whatever weapon has been seized by the seizing officer Avneet Sharma (PW 10), the same weapon has been sent for examination to the Arms Moharrir Janki Prasad Gaud (PW 4), on which basis, this can be inferred that same weapon i.e. fire arm was in proper running condition. Therefore, this lacuna in the prosecution evidence disproved the fact that the firearm which was in a running condition has been seized from conspicuous possession of the appellant-accused and in view of that, the finding of conviction recorded by the trial Court appears to be erroneous and liable to be set-aside. 9. Resultantly, appeal preferred by the appellant is allowed. The conviction and sentence of the appellant under section 25 (i-B) (a) of the Arms Act is set-aside and he is acquitted from the charge under section 25 (I-B) (a) of the Arms Act. The appellant is in custody. He be released immediately if not required to be detained in any other case. 10. A copy of this judgment be sent to the trial Court for information and compliance.