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2009 DIGILAW 1324 (MP)

Rafique v. State of M. P.

2009-11-30

S.S.DWIVEDI

body2009
ORDER S.S. Dwivedi, J. 1. The applicant has preferred this revision under Section 397 of the Code of Criminal Procedure, feeling aggrieved by the appellate judgment dated 1.5.2003 passed by Third Additional Sessions Judge, Morena, in Cri. Appeal No. 93/03, whereby allowed the appeal to the extent of sentence and affirmed the judgment of conviction of the applicant, passed by Chief Judicial Magistrate, Morena, in Criminal Case No. 1767/99 wherein the applicant has been found guilty for the offence under Section 25(1-b)(a) of the Arms Act but reduced the sentence from one year to six months RI with a fine of Rs. 200/-. 2. Briefly stated the facts of the case are, on 17.9.1999 the Sub-Inspector R.S. Solanki posted at Police Kotwali, Morena received a secret information that near Central Warehouse a person is there having some illegal firearm with him. On this information, the concerning police Sub-Inspector reached on the spot, caught hold the applicant/accused in suspicious condition and on search before the independent Panch witness found a country made pistol with a cartridge with him. The pistol as well as cartridge had been seized; necessary panchnama had been prepared, returned back to the police station, registered a case under Section 25 of the Arms Act, sent the seized article for its mechanical examination to the D.R.P. Line, Morena where Akhilesh Kumar Dubey. (PW3) examined the article and found it to be a firearm. After obtaining requisite sanction for prosecution under the Arms Act the charge sheet has been filed. 3. The applicant/accused abjured the guilt and his defence is of false implication in this case. The learned trial Court by impugned judgment dated 27.2.2003 held the applicant/accused guilty for the offence punishable under Section 25 (1-b) (a) of the Arms Act and sentenced him to one year RI with a fine of Rs. 200/-; aggrieved by which the applicant has preferred a criminal appeal No. 93/2003, which has been decided by Third Additional Sessions Judge, Morena by the judgment dated 1.5.2003 whereby partly allowed, the appeal, affirmed the conviction of the applicant for the offence, under Section 25 (1-b) (a) of the Arms Act but reduced the sentence of one year to six months RI with a fine of Rs. 200/-. Aggrieved by which, the applicant came up before this Court by this revision petition. 4. 200/-. Aggrieved by which, the applicant came up before this Court by this revision petition. 4. Having heard the learned Counsel for the applicant as well as the learned Public Prosecutor appearing for the State and perused the record. 5. It is submitted by the counsel for the applicant that the independent panch witness Naresh Kumar (PW1) had not supported the seizure of firearm concerned from the possession of the applicant. Similarly, it is nowhere stated by the seizing officer R.S. Solanki (PW5) that after seizure the concerning firearm and cartridge had been properly sealed and on the outer cover the necessary signature of panch witness had been obtained. The concerning Head Armorer Akhilesh Kumar Dubey (PW3) has also not stated that at the time of examination of the concerning firearm the same firearm had been sent to him in a sealed cover having properly sealed and signature on the outer cover of the original concerned and, in such circumstances, the prosecution has failed to prove that whatever firearm had been examined by the Head Armorer Akhilesh Kumar Dubey (PW3) is the same firearm, which had been seized from the conspicuous possession of the applicant/accused and, in such circumstances, both the courts below have committed error in holding, the applicant guilty for the offence punishable under Section 25 (1-b) (a) of the Arms Act and, hence prayed for setting aside of the impugned judgment of conviction and sentence passed by the courts below. 6. In reply, learned Public Prosecutor for the State supported the impugned judgment and prayed for dismissal of the revision petition. 7. To bring home the charge as leveled against the applicant, the prosecution had examined the seizing officer R.S. Solanki (PW5), the Sub-Inspector of Police, who had actually seized the concerning firearm and the cartridge from the possession of the applicant and a seizure memo Ex.P/1 had been prepared. As per the statement of this witness, the seizure had been made in .presence of the independent panch witness Naresh Kumar (PW1) but unfortunately the independent panch witness Naresh Kumar had not supported the aforesaid statement of the seizing officer, and he had not stated that any firearm or any cartridge had been seized from the possession of the applicant. Though this witness is declared hostile by the prosecution but nothing substantial came on which basis his statement can be disbelieved. 8. Though this witness is declared hostile by the prosecution but nothing substantial came on which basis his statement can be disbelieved. 8. Similarly, it is also pertinent to note that the seized firearm had been sent for its mechanical examination to the Armorer Section of D.R.P. Line, Morena where Akhilesh Kumar Dubey (PW3) had examined the concerning firearm but in his statement he had also not stated that whatever firearm received from Kotwali Morena, he received in a sealed cover packet duly signed by the seizing officer and independent panch witness. If that being so, then the prosecution has failed to establish that whatever firearm had been seized from the possession of the applicant is the same firearm that has been examined by the Head Armorer Akhilesh Kumar Dubey (PW3) and in such circumstances also, whatever article had been seized from the possession of the applicant as per the statement of R.S. Solanki (PW5) is examined by the aforesaid witness is not-proved beyond reasonable doubt and the benefit will go in favour of the applicant. 9. In such circumstances, the prosecution has failed to prove beyond reasonable doubt that any firearm and cartridge had been seized from the possession of the applicant, therefore, the finding of conviction and sentence recorded by both the courts below appears to be erroneous and liable to be set aside. 10. Resultantly the revision petition is hereby allowed. The impugned judgment is set aside and the applicant is acquitted from the charge under Section 25 (1-b) (a) of the Arms Act. The fine amount if any deposited by the applicant be refunded to him. The applicant is on bail, his bail bonds stand discharged forthwith.