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2012 DIGILAW 1140 (MP)

Vikas v. State of M. P.

2012-11-06

A.K.SHARMA

body2012
Judgment A.K. Sharma, J;- 1. Petitioner has filed this revision petition under Section 397 of Cr.P.C. against the judgment dated 10/11/2011 passed in Criminal Appeal No. 527/2011 by learned Third Additional Sessions Judge (FTC) Dabra, District Gwalior confirming the judgment dated 5/9/2011 passed in Criminal Case No. 1624/2004 by JMFC, Dabra; whereby, petitioner has been convicted for the offence punishable under Section 25(1-b)(a) of the Arms Act and sentenced to under go RI for three years with fine of Rs. 1,000/- with default stipulation. The brief facts of the case are that on 23/2/2002, SHO, Dabra on an information regarding arrival of criminal of Chaddi Baniyan Gang, while checking the persons passing Maal Godam area of Dabra when two persons tried to escape from the spot, the police has caught them and on search, 6 cartridges of 38 bore revolver were seized from the petitioner for which he was not having any licence. After registering FIR, petitioner was tried by learned trial Court for the offence punishable under Section 25(1-b)(a) of the Arms Act and convicted as mentioned para 1 of the order. Learned lower appellate Court by the impugned judgment has also confirmed the judgment passed by learned trial Court, hence this revision petition on the ground that learned trial Court is not justified in convicted the petitioner as the evidence of independent witnesses is not corroborating with the evidence of seizure made by police authorities. Further the evidence of police personnel is contradictory and there is no evidence that seized articles were sent for sanction to District Magistrate. 2. The main question for consideration in this revision petition is whether both the Court below are justified in law in convicting the petitioner ? 3. Learned counsel for the petitioner has drawn attention of this Court towards the fact that there is only statement of police officials namely Head Constable Ashok Singh (PW/3), Constable Sukhbir Singh (PW/4), Head Constable Gopal Singh (PW/5), Constable Ramveer Singh (PW/7), Head Constable Brijmohan Mishra (PW/9) and SHO Ashok Singh Bhadoria (PW/11), who have stated that while they were on search for criminals of Chaddi Baniyan Gang and checking the persons who are coming from the station towards Dabra city at Sarafa area near Maal Godaam, when they tried to stop two persons, they tried to run but were caught. 6 cartridges of 38 bore gun were seized from petitioner-accused. 6 cartridges of 38 bore gun were seized from petitioner-accused. SHO Ashok Singh Bhadoria (PW/11) has stated that seizure memo (Ex. P/1) and arrest memo (Ex. P/2) were prepared by him and FIR (Ex. P/8) was also registered by him. 4. Learned counsel for the petitioner submitted that Panch witnesses to Ex. P/1 and P/2 namely Shahzad Khan (PW/1) and Hoshiyaar Singh (PW/2) have turned hostile as they have not confirmed any seizure from the petitioner. Another independent witness Mehboob Ahmad Khan (PW/6) has also turned hostile. 5. Learned counsel for the petitioner has further submitted that Constable Ashok Singh (PW/3) has not confirmed the fact that petitioner tried to escape when he was stopped by the police. He has stated that petitioner was stopped at about 12 am while Head Constable Gopal Singh (PW/5), Ramveer Singh (PW/7) and SHO Ashok Singh Bhadoria (PW/11) have stated that petitioner was stopped at about 1 am. It is further submitted by learned counsel for the petitioner that Sukhbir Singh (PW/4), Constable in SAF and specially deputed in the police station for anti decoity work has also turned hostile and after declaring him hostile, he has confirmed the seizure of 6 cartridges of 38 bore from petitioner. It is further submitted by learned counsel for the petitioner that statement of Sukhbir Singh (PW/4) under Section 161 Cr.P.C. was recorded after 10-12 days of the incident although he has stated that his statement was recorded after 2-3 days. He has further submitted that 38 bore revolver is a private bore and 38 bore revolver are only issued to the police officers who are involved in anti decoity work. 6. Learned counsel for the petitioner has drawn attention of this Court towards the statement of Head Constable Gopal Singh (PW/5) who in his cross-examination has stated that he did not remember whether seized cartridges were sealed on the spot or not and witnesses have signed the packet or not. Learned counsel for the petitioner has drawn attention of this Court towards the statement of SHO Ashok Singh (PW/11) who in his cross-examination has admitted that he has not mentioned the other properties such as cash, watch etc found from the petitioner-accused at the time of preparation of Panchnama (Ex. P/1). He has further admitted that in seizure memo (Ex. Learned counsel for the petitioner has drawn attention of this Court towards the statement of SHO Ashok Singh (PW/11) who in his cross-examination has admitted that he has not mentioned the other properties such as cash, watch etc found from the petitioner-accused at the time of preparation of Panchnama (Ex. P/1). He has further admitted that in seizure memo (Ex. P/1) column of sample seal is kept blank and there is no mention that copy of Ex. P/1 was supplied to accused. He has further admitted that when the copy of seizure memo (Ex. P/1) was submitted in the Court by Constable, in arrest memo (Ex. P/2) the column of time was blank. He has further admitted that he is the complainant and eye witness of the case and after registering the crime, investigation was also done by him and in Ex. P/8 it is mentioned that from the accused licence, cash and watch were seized but this fact has not been mentioned in the seizure memo. He has further admitted that during investigation his statement under Section 161 Cr.P.C. was not recorded. 7. SI B.S. Jadaun (PW/12) has stated that on receiving the case diary for investigation on 23/03/2002 and recording of statement of Shahzad Khan (PW/1) and Hoshiyaar Singh (PW/2) on 23/03/2002. He further admitted that he has recorded the statement of Ashok Kushwaha, Sukhvir Singh, Gopal Singh, Ramveer Singh and Brijmohan Singh Mishra on 4/3/2002. 8. Learned counsel for the petitioner submitted that sanction for prosecution has not been proved properly and it has not been proved that seized articles were sent to ADM, whose signature on sanction memo (Ex. P/6) has been proved by clerk Pramod Chaturvedi (PW/8). Pramod Chaturvedi (PW/8) has stated that he cannot state as to whether the seized articles were sent for sanction alongwith case diary or not. Further he cannot state to which company the seized articles belong to. He has confirmed the fact that for sanction only case diary was produced. He has further confirmed that order Ex. P/6 was neither written nor signed before him. 9. Learned counsel for the petitioner has further drawn attention of this Court towards the statement of Lalsingh (PW/10) who has examined the seized cartridges on 7/3/2002 and found that cartridges received in sealed packet were live and he has given his report (Ex. P/7). He has further confirmed that order Ex. P/6 was neither written nor signed before him. 9. Learned counsel for the petitioner has further drawn attention of this Court towards the statement of Lalsingh (PW/10) who has examined the seized cartridges on 7/3/2002 and found that cartridges received in sealed packet were live and he has given his report (Ex. P/7). But he has further stated that only cartridges of article 'A' is cartridge which was received by him and other 5 cartridges are not those cartridges which were seen by him at the time of examination of the cartridges. 10. From the statement of Lal Singh (PW/10) who has given his report (Ex. P/7) on 7/3/2002 after examining the cartridges, it is clear that seized cartridges were not sent to ADM at the time of sanction because in Ex. P/6 it has been mentioned that case diary was sent for sanction on 7/3/2002 and sanction order was passed on 8/3/2002 while Lal Singh (PW/10) has examined the cartridges on 7/3/2002, the date on which diary was sent to ADM for sanction thus, the seized cartridges were not sent to ADM for sanction. Learned counsel for the petitioner further submitted that since the investigation has been done by the arresting officer himself, therefore, both the Courts below are not justified in convicting the petitioner. He has cited the judgment of this Court in the matter of Raju Dubey Vs. State of M.P., 1998 (1) JLJ 236 in which it has been held that arresting and investigating officer cannot be the same person. The seized offensive weapon should be sealed and sent to magistrate for sanction. Weapon not sealed on the spot, makes the seizure proceedings doubtful. It is further held that if the seizure of weapon is suspicious, the police officer cannot be relied upon to prove recovery. It is further held that under Section 39 of the Arms Act if no weapon proved to have been sent with all records and only clerk has been examined to prove the signature of sanctioning officer, sanction cannot be found to be proved as the sanctioning officer should see the weapon and satisfy himself that offence has prima facie been made out under Section 3 of Arms Act. Further if the recovery is doubtful and sanction for prosecution is not proved to be in accordance with law, the accused cannot be convicted. 11. Further if the recovery is doubtful and sanction for prosecution is not proved to be in accordance with law, the accused cannot be convicted. 11. In the present case same police officer SHO Ashok Singh Bhadoria (PW/11) has seized the cartridges from petitioner and he himself has written the FIR and himself has investigated the matter. It is further proved that seized articles were not sent for examination with the case diary to ADM and only signature of ADM has been proved on sanction order (Ex. P/6), therefore, both the Courts below are not justified in law in convicting the petitioner. 12. It is further important to note that it is doubtful that seized articles were seized on spot because in Ex. P/1, there is no impression of sample seal. 13. Learned P.L. has submitted that even if 5 cartridges were not those which were sent for examination to the armorer, the armorer has admitted that one cartridge article 'A' was examined by him, therefore, both the Courts below are justified in convicting the petitioner. 14. Learned counsel for the petitioner has further submitted that in the absence of corroboration of seizure by independent witnesses Shahzad Khan (PW/1) and Hoshiyaar Singh (PW/2) and considering the fact that seizure itself is doubtful because no impression of sample seal is there on the seizure memo (Ex. P/1), petitioner cannot be convicted. He has cited the judgments of this Court in the matter of Rafique Vs. State of M.P., ILR (2011) MP 1079, Pappe alias Kushvinder Singh Vs. State of M.P., 2007 (III) MPWN 56 and Indar Singh Vs. State of M.P., 1997 (I) MPWN 57 in which it has been held that independent witnesses not confirming the prosecution as described by the police, armorer not confirming that the firearm was sealed and signed by seizing officer and prosecution has also failed to prove that the firearm examined by armorer is the same which was seized from the applicant, benefit of doubt would go to applicant and applicant acquitted by allowing revision petition. In the present case the above cited judgments are applicable as there is no corroboration of the independent witnesses regarding seizure, sealing of the seized articles on the spot is not proved and investigation has been done by the same police officer who has made the seizure, arrest-memo and written the FIR, therefore, both the Courts below are not justified in law in convicting the petitioner for the offence punishable under Section 25(1-b)(a) of the Arms Act, therefore, revision petition is allowed and judgment passed by both the Courts below are hereby quashed and petitioner is acquitted from all the charges. Petitioner is on bail, his bail bonds stand discharges. Fine amount, if any, deposited by the petitioner be refunded to him.