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2011 DIGILAW 1036 (MP)

HALKUN v. STATE OF M. P.

2011-08-30

U.C.MAHESHWARI

body2011
JUDGMENT : U. C. MAHESHWARI, J. 1. The applicant-accused has directed this revision being aggrieved by the judgment dated 22nd May 2006, passed by the Additional Sessions Judge, Gadarwara, district Narsinghpur in Criminal Appeal No. 98/05, whereby dismissing his appeal the judgment dated 3-5-2005 passed by the Judicial Magistrate, 1st Class in Criminal Appeal No. 1150/04 convicting and sentencing the applicant under section 25(1-B)(b) of the Arms Act (in short "The Act"), for RI one year with fine of Rs. 500 has been affirmed. Immediately after the impugned judgment, the appellate Court has sent the applicant to jail for facing the sentence from where he was released on bail after suspension of his remaining jail sentence by this Court, vide order dated 29-7-2006. 2. The facts giving rise to this appeal in short are that on dated 2-5-2003 the Head Constable Dayaram Barman posted at Police Station Chichali on receiving the telephonic information from some informer that the applicant lashed with "Katarna" (a sharped edged weapon attached with stick) is creating terror in the village, after endorsing the same in Rojnamchasanha, Ex. P/4-C, accompanied with some other Police Officials went to such village and found that the applicant was creating terror with the assistance of said implement, on which in presence of the witnesses Ramesh and Kanchedi, by preparing the arrest memo, Ex, P-3, arrested the applicant and also seized the aforesaid "Katarna" having the length of the blade and width 10" x 2" from his possession by preparing the Panchanama, Ex. P-2. On asking the applicant regarding licence of such "Katarna", the same was not found with him. The applicant was brought to the Police Station where after making the endorsement in Rojnamchasanha, Ex. P-/5-C, in this regard a crime for the offence of section 25 of the Arms Act was registered against the applicant. After holding the investigation, the applicant was charge-sheeted, On framing the charges of the above mentioned offence, the applicant abjured the same, on which the trial was held. On appreciation, after holding guilty to the applicant for the above mentioned offence, he was punished by the trial Court with the sentence, stated above. 3. On filing the appeal, the same was also dismissed, on which the applicant has come forward to this Court with this revision. 4. On appreciation, after holding guilty to the applicant for the above mentioned offence, he was punished by the trial Court with the sentence, stated above. 3. On filing the appeal, the same was also dismissed, on which the applicant has come forward to this Court with this revision. 4. The applicant's counsel after taking me through the evidence, exhibited papers from the record of the trial Court, said that the prosecution has utterly failed to prove the alleged offence against the applicant beyond reasonable doubt. In continuation he said that in the deposition of any of the witnesses including the Investigating Officer, Daya Ram Barman, Head Constable, (PW-4), neither the alleged "Katarna" was marked as an article nor the same was shown to any of them, while recording the evidence. He further said that even on taking into consideration the depositions of the witnesses, then except Daya Ram Barman, Head Constable, no witness has proved the seizure of aforesaid implement from the possession of the applicant by admissible version. The investigating officer Daya Ram Barman, (PW-4) also could not prove the exact length of the blade of "Katarna". He stated only tots! length and width I0" x 2" of the same. In the lack of such evidence, merely on the basis of seizure memo, it could not be assumed that the seized "Katarna" was having the blade of 10" in length. So in the available circumstances, it could not be deemed that seized implement was covered by the "Item No. v" of "Schedule I" of the Arms Rules for which the licence is required. With these submissions, he prayed for setting aside the impugned judgment and extending the acquittal to the applicant by allowing this appeal. 5. On the other hand, responding the aforesaid arguments, by justifying the impugned conviction and sentence of the applicant, Shri Gitesh Singh Thakur, learned PL said that the same is based on proper appreciation of the evidence and also with consonance of the legal position. Mere on account of some minor, discrepancies or omission, in the deposition of the Investigating officer or other witnesses, the applicant could not be benefitted by extending the acquittal. However, he fairly conceded that at the time of trial, the aforesaid alleged implement, on which the entire case of the prosecution was based has neither been shown to the witnesses nor marked as an article in the evidence. However, he fairly conceded that at the time of trial, the aforesaid alleged implement, on which the entire case of the prosecution was based has neither been shown to the witnesses nor marked as an article in the evidence. With these submissions, he prayed for dismissal of this revision. 6. After hearing the parties, keeping in view their arguments, on going through the record, I am of the considered view that the Courts below have committed grave error in appreciation of the evidence and also in holding applicant guilty for the aforesaid offence. 7. It is apparent from the seizure memo, Ex. P/1 prepared in presence of the witnesses by Investigating Officer, Daya Ram Barman, (PW-4) that the seized "Katarna" was having the blade of 10" in length and its width was 2". But on going through the depositions of prosecution witnesses, Constable namely Kanchedi, (PW-1), Nand Kishore, (PW-2), Onkar Singh, (PW-3) and also the Investigating Officer, Head Constable, Daya Ram Barman, (PW-4), it is apparent that none of them specifically stated that blade of seized "Katarna" was having the length of 10". True it is in the deposition of Daya Ram Barman, (PW-4), he said that the seized implement was having the length and width 10" x 2", but he did not state specifically regarding actual length of the blade of such implement Besides this, in order to consider the correctness of the deposition of this witness Daya Ram Barman, such implement was neither shown to this witness nor was marked the article in such deposition. Therefore, in the lack of such material evidence and also in the lack of any independent evidence in support of the prosecution, mere on oral and vague testimony of investigating officer, it could not be deemed that the implement was having the blade of 10" and in such premises, the impugned conviction and sentence could not be maintained, 8. My aforesaid approach is also fortified by earlier decision of this Court in the matter of Kalebabu vs. State of M. P. reported in 2008 I.L.R. (M. P. Series). Short Note No. 44. My aforesaid approach is also fortified by earlier decision of this Court in the matter of Kalebabu vs. State of M. P. reported in 2008 I.L.R. (M. P. Series). Short Note No. 44. in which it was held as under :- "Acquisition or possession of arms of specified description in contravention of section 4 - Knife seized from the possession of appellant not produced before Trial Court and not marked as an article -Oral evidence regarding its size and specification not sufficient - Appellant acquitted - Appeal allowed. 1998 (2) JLJ 69 , AIR 1973 SC 1511, 2004 Cri.L.J. 119, AIR 2003 SC 4236 (Cases ref.)." (Placitinum) 9. In view of the aforesaid discussion, impugned judgment holding conviction and sentence against the applicant being apparently perverse is not sustainable under the law, hence by allowing this revision, the same is set aside and the applicant is acquitted from the alleged charges of section 25(1-B)(b) of the Arms Act. The amount of fine, if deposited by the applicant, then after due verification, the same be refunded to him. 10. I am apprised by the applicant's counsel that under execution of the non bailable warrant issued on account of non-appearance of the applicant in compliance of the bail order of the Court, the applicant is facing the remaining jail sentence and prayed for appropriate direction to set him at liberty. 11. Considering such prayer, in view of aforesaid acquittal of the applicant, it is directed that he should be set at liberty in the present matter, if his presence is not required in any other case. 12. The revision is allowed as indicated above.