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Madhya Pradesh High Court · body

2009 DIGILAW 613 (MP)

Mahesh v. State of M. P.

2009-05-07

A.K.SHRIVASTAVA

body2009
JUDGMENT 1. This appeal under section 374 of CrPC has been preferred by the appellant assailing the judgment of conviction and order of sentence dated 20.7.2004 passed by the learned Special Judge, Shivpuri, in Special Sessions Trial No. 107/03 convicting him under section 25 (1-B) (a) of the Arms Act, 1959 (in short the Act) read with section 11 and 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam (hereinafter referred to as the Adhiniyam) and thereby sentencing him to suffer three years RI with a fine of Rs. 1,000/- and in default, one month R.I. 2. In brief the case of the prosecution is that ASI, P.N. Pal, was posted on 1.7.2003 in Police Chauki, Sunari (Police Station Karera) as Chauki in-charge. On this date, the informant informed him that the appellant who is a member of the gang of dacoit Kamalsingh has been seen in village Andora. On the basis of the said information, necessary endorsement was made in the Roznamcha by the ASI and thereafter ASI alongwith the police force and the witnesses went to the place described by the informant. According to the prosecution, one person on seeing the police force ran away towards the hill. However, the police party encircled and caught him. On being searched, a 12 bore Katta and two live cartridges were found from his possession. After the arrest, the appellant named his name. Necessary seizure memo was made at the spot. 3. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for its trial. 4. Learned Special Judge on the basis of the allegation made in the charge-sheet, framed the charges under section 25 (1-B) (a) of the Act as well as under section 11 and 13 of the Adhiniyam, which the appellant denied and requested for the trial. 5. In order to prove the charges, prosecution examined as many as 8 witnesses and placed Ex. P-1 to Ex. P-12, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement under section 313 of CrPC. 6. 5. In order to prove the charges, prosecution examined as many as 8 witnesses and placed Ex. P-1 to Ex. P-12, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement under section 313 of CrPC. 6. The learned trial Judge on the basis of the evidence placed on record came to hold that the charges are proved against the appellant and eventually convicted him for those charges. 7. In this manner, this appeal has been filed by the appellant assailing the impugned judgment. 8. I have heard Shri C.S. Dixit, learned Public Prosecutor for the respondent-State and perused the record and I am of the view that this appeal deserves to be allowed. 9. On going through the testimony of investigating officer P.N. Pal (PW 6), it is gathered that he arrested the appellant; seized the Katta and two live cartridges from him; lodged the FIR and investigated the matter including recording of the statements of the witnesses. In para 2, this witness has specifically admitted that the entire investigation was made by him and he did not hand over the case to any other officer for investigation. The Supreme Court in Megha Singh v. State of Haryana, AIR 1995 SC 2339 has categorically held that if a police officer is arresting an accused and recovering pistol and cartridges from him as well as lodging the FIR as complainant, he should not proceed with the investigation being the complainant and the conviction was set aside by the Supreme Court. This decision has been followed by Single Bench of this Court in Baijnath Singh v. State of M.P., 1998 (2) JLJ 69 . Since in the present case also the entire investigation was made by ASI, P.N. Pal being complainant, he should not have investigated the matter. Thus, in view of the decision of the Supreme Court in Megha Singh (supra) and Single Bench of this Court in Baijnath (supra), the conviction of the appellant cannot be allowed to remain stand. 10. So far as the seizure of the Katta and cartridges are concerned, the same has not been found to be proved. According to ASI, P.N. Pal (PW 6), the Katta and cartridges after seizure were sealed. 10. So far as the seizure of the Katta and cartridges are concerned, the same has not been found to be proved. According to ASI, P.N. Pal (PW 6), the Katta and cartridges after seizure were sealed. The suggestion put to him that the Katta and cartridges were not sealed at the place of incident has been firmly denied by him. Further, the suggestion made to him in the cross-examination has been denied by him that without sealing these articles, openly they were sent for their examination. However, Jageshwar Singh (PW 1), to whom the said articles were sent for examination, has stated that on 15.7.2003 he was serving as Arms Moharrir Constable in police line Shivpuri. On that date, Constable Ayodhya Prasad brought a 12 bore Katta for its examination. In cross-examination, this witness has admitted that the said article was received by him in open condition and in the same condition, he returned it back. Thus, looking to the inconsistent statements of ASI, P.N. Pal (PW 6) and Jageshwar Singh (PW 1), it is difficult to hold that the Katta, which was alleged to have been seized from the place of occurrence, is the same Katta, which was sent for its examination. Apart from this, as per the case of the prosecution, the seizure was made on 1.7.2003 and after 15 days on 15.7.2003 the seized Katta was sent, that too in open condition for its examination. During this period of 15 days, the Katta was lying in what condition, there is nothing on record. In this view of the matter, I am of the view that the conviction of the appellant under section 25 (1-B) (a) of the Act is not proved and therefore the appellant is acquitted from the said charge. Since the appellant is acquitted from the charge under section 25 (1-B) (a) of the Act, his conviction under sections 11 and 13 of the Adhiniyam is also set aside. 11. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.