Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 376 (MP)

Amar Singh @ Halke v. State Of M. P.

2010-03-30

K.S.CHAUHAN

body2010
ORDER : This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure has been preferred being aggrieved by the impugned judgment, finding and sentence dated 14-8-2008 passed by the Additional Judge to the 1st Additional Sessions Judge, Tikamgarh in Criminal Appeal No. 86/2006 arising out of judgment 29-4-2006 passed by the Judicial Magistrate First Class, Niwadi in Criminal Case No. 240/2001, whereby the applicant has been convicted under section 25(1B)(a) of the Arms Act, 1959 (hereinafter referred to as the "Act, 1959") and sentenced to R.I. for one year with fine of Rs. 1,000/- in default RI for one year with fine of Rs. 1,000/- in default RI for one month. 2. Prosecution case in short is that on 27-10-2001 Radhey Shyam Sharma, ASI of Police Station Prathvipur along with his staff had gone for patrolling to village Khiston, Bachor. At about 4:00 PM when he reached at village Kachni Khirak he received an information from the informant that the applicant having double barrel gun has gone towards his village Chutka. On this information he along with staff and witnesses Munnilal Yadav and Rakesh Yadav went there. He was found having double barrel gun. He was not having any licence. The gun was seized from his possession. He was arrested. FIR was recorded at Police Station Prathvipur where Crime No. 196/2001 under sections 25/27 of the Arms Act was registered against the applicant. The statements of the witnesses were recorded. Seized gun was sent to the FSL, Sagar for chemical examination from where report received. After obtaining the sanction from the District Magistrate, Tikamgarh the charge-sheet was filed against the applicant in the Court of Judicial Magistrate First Class, Niwadi. 3. The applicant was charged under section 25(1B)(a) of the Act, 1959. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as four witnesses, whereas applicant also examined one witness in his defence. After appreciating the evidence the trial Court found him guilty for the charge levelled against him and sentenced to RI for 2 years with fine of Rs. 1,000/- in default RI for one month. Prosecution examined as many as four witnesses, whereas applicant also examined one witness in his defence. After appreciating the evidence the trial Court found him guilty for the charge levelled against him and sentenced to RI for 2 years with fine of Rs. 1,000/- in default RI for one month. Being aggrieved by the judgment, finding and sentence, Criminal Appeal No. 86/2006 was preferred which was partly allowed on 14-8-2008 maintaining the conviction under section 25(1B)(a) of the Act, 1959 but reduced the sentence as stated hereinabove in para 1 of the judgment. Being aggrieved the instant revision has been preferred. 4. Shri Pradeep Naveria, learned counsel for the applicant submitted that the Court below has not appreciated the evidence in proper perspective. The independent witnesses have not supported the prosecution case. The complainant and the Investigating Officer is the same person, therefore the investigation is vitiated. The prosecution has failed to establish the guilt beyond reasonable doubt. The finding of guilt is erroneous which deserves to be set aside and applicant is entitled for acquittal. 5. On the contrary Ku. Kamlesh Tamrakar, learned counsel appearing on behalf of the State supported the judgment, finding and sentence mainly contending that the prosecution has proved the case beyond reasonable doubt against the applicant. He has rightly been convicted and sentenced by the Court below, hence does not call for any interference. 6. The main point for consideration in this appeal is that whether the Court below has committed an illegality in convicting and sentencing the applicant under section 25(1B)(a) of the Act, 1959. 7. As per prosecution, double barrel gun was seized from the possession of this applicant in presence of Munnilal Yadav and Rakesh Yadav. Out of them Rakesh (PW-2) has been examined, but he has not supported the prosecution case. He has not given any evidence that gun was seized from this applicant. No doubt he admits his signature on seizure memo (Ex.P-1) but the same is said to be taken by police at Prathvipur Bus Stand and not at the spot. Thus this independent witness is not supporting the prosecution case. Another witness of seizure memo was Munnilal Yadav, but he has not been examined. He has been given up by the prosecution. Thus this independent witness is not supporting the prosecution case. Another witness of seizure memo was Munnilal Yadav, but he has not been examined. He has been given up by the prosecution. He was a material witness and his evidence was necessary in the circumstance of the case because one of the independent witness was not supporting the prosecution case, but the prosecution did not examine that witness, therefore adverse inference ought to have been drawn against the prosecution for withholding such material evidence. 8. No doubt conviction may be based on the testimony of the departmental witnesses but their evidence must be wholly reliable. 9. The prosecution has not exhibited the rojnamcha-sanha No. 1198 and 1216 dated 27-10-2001 hence cannot be read in evidence. Thus the evidence is lacking with respect to the fact whether Radhey Shyam Sharma (PW-1) and Nandkishore Vishwakarma (PW-3) had gone for patrolling on that day. This fact ought to have been proved positively. There is also discrepancy in their evidence regarding vehicle by which they are said to have been gone for patrolling. According to Radhey Shyam Sharma (PW-1) the vehicle was cycle but according to Nandkishore Vishwakarma (PW-3) it was motorcycle. According to Radhey Shyam Sharma (PW-1) there were three cycles by which four persons have gone there but according to Nandkishore Vishwakarma (PW-3) there were only two motorcycles. Such discrepancy may not be serious but an important for testing their veracity. Their evidence does not appear to be truthful in this respect. Apart from it, they have nowhere stated that these vehicles were provided to them by the concerned police station. 10. Nandkishore Vishwakarma (PW-3) has himself admitted that the applicant did not try to run away even though he had such an opportunity. As stated earlier no seizure of gun has been proved by the evidence of independent witnesses and statements of departmental witnesses Radhey Shyam Sharma (PW1-) and Nandkishore Vishwakarma (PW-3) are not found fully reliable therefore it cannot be accepted that gun in question was seized from his possession. 11. Jaipal Yadav (DW-1) has given evidence in support of the applicant wherein he has stated that police came to search the applicant at his house but was not found. The direction was made to send him at police station and as he went there, he was falsely implicated in this case. 12. 11. Jaipal Yadav (DW-1) has given evidence in support of the applicant wherein he has stated that police came to search the applicant at his house but was not found. The direction was made to send him at police station and as he went there, he was falsely implicated in this case. 12. This witness has further stated that there are two groups in the village, one headed by Sarpanch and another by this applicant. The brother of applicant has earlier been murdered and the case was going on against the accused persons of that case, hence he has been falsely implicated at the instance of rival groups colluding with police. Thus the applicant has been successful to establish his defence. 13. No doubt there is little scope of re-appreciation of evidence at revisional stage but it is apparent that the Courts below have not properly appreciated the evidence and have erroneously arrived at the conclusion, therefore the evidence requires to be re-appreciated. On appraisal of entire evidence, it is manifestly clear that the prosecution has failed to prove the guilt beyond reasonable doubt against the applicant, therefore he deserves to be acquitted. 14. Consequently this criminal revision succeeds and is allowed. The conviction and sentence passed under section 25(1B)(a) of the Act, 1959 by the Courts below are hereby set aside. Applicant is acquitted from the charge under section 25(1B)(a) of the Act, 1959. He is on bail, his bail bonds are discharged.