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Madhya Pradesh High Court · body

2012 DIGILAW 927 (MP)

Lal Bahadur, Kalidin v. State of M. P.

2012-09-25

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon the 25th day of September, 2012) Since both the appeals, arose from the common judgment andtherefore, they are decided by this common judgment. 2.The appellants have preferred this appeal against the judgment dated 9.8.1996 passedby the learned First Additional Sessions Judge, Chhatarpur in S.T. No.41/1995, whereby the appellants were convicted and sentenced asunder:- Conviction Jail Sentence Sentence of Fine Default Sentence 399/402 of IPC R.I. for 1 year. Rs.200/- S.I. for 1 month. 25 of Arms Act. R.I. for 1 year. - - 27 of Arms Act. R.I. for 3 years Rs.200/- S.I. for 1 month. 3.Prosecution's story, in short, is that, on 27.12.1994, aninformation was received to the officers of Police Station Jujharnagar , District Chhatarpur that six unknown culprits were gathered in the field of Ramnath Aheer , situated at village Kheri ,to make a plan for dacoity . Shri Puranik , SHO, Police Station Jujharnagar went with other officers and staff along with two independent witnesses andsurrounded the culprits. The culprits were directed to surrender and therefore,the appellants did not fire from their weapons. The appellants and otherco-accused persons were arrested by the police and various fire arms wererecovered from them. A hand-made pistol of 315 bore and cartridges were foundwith the appellant Lal Bahadur ,whereas a hand-made pistol of 12 bore with some cartridges were found from theappellant Kalidin . Seized arms were sent for theirexamination to the Reserve Inspector, Police Lines, Chhatarpur . A prosecution sanction was also obtainedfrom the District Magistrate. After due investigation, a charge-sheet was filedbefore the JMFC, Laundi , who committed the case tothe Sessions Court, Chhatarpur and ultimately, it wastransferred to the First Additional Sessions Judge, Chhatarpur . 4.The appellants abjured their guilt. They did not take any specific plea but,they have stated that they were attending a Pooja ofa particular temple and on call of one constable, the appellants went to thePolice Station and thereafter, they were held by the police. In defence , Hiralal (D.W.1) and Raja Bhaiya (D.W.2) were examined. 5.The learned Additional Sessions Judge, after considering the evidence adducedby the parties, convicted the appellants for the offence punishable undersection 399/402 of IPC as well as for the offence punishable under section 25read with section 27 of the Arms Act and sentenced them as mentioned above. In defence , Hiralal (D.W.1) and Raja Bhaiya (D.W.2) were examined. 5.The learned Additional Sessions Judge, after considering the evidence adducedby the parties, convicted the appellants for the offence punishable undersection 399/402 of IPC as well as for the offence punishable under section 25read with section 27 of the Arms Act and sentenced them as mentioned above. 6.During the pendency of the appeal, the appellant Raghuntha has expired and therefore, his name was deletedfrom the cause title of Criminal Appeal No.1548/1996. Therefore, at present,appeals are to be considered only for the appellants Kalidin and Lal Bahadur . 7.I have heard the learned counsel for the parties. 8.The learned counsel for the appellants have submittedthat no offence was committed by the appellants. They were not found at thespot but, they were falsely implicated in the matter. They could not beconvicted for the offence punishable under sections 399 or 402 of IPC. Also,the District Magistrate has given a sanction on a cyclostyled format andtherefore, it was not given according to the law. Without any valid sanction,the police could not prosecute the appellants for the offence punishable undersection 25 of the Arms Act. There was no evidence that the appellants used thefire arms for any offence, therefore, they could not be convicted for theoffence punishable under section 27 of the Arms Act. In the alternate, it issubmitted that the appellants remained in the custody for more than 20 monthsand therefore, they may not be sent to the jail again. 9.On the other hand, the learned Panel Lawyer has submitted that the convictionand sentence directed by the trial Court appears to be correct and therefore,there is no basis by which any interference can be done in the present appeal. 10.After considering the submissions made by the learned counsel for the partiesand looking to the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellants can be accepted? And whetherthe sentence directed by the trial Court can be reduced? 11.The appellants are sentenced for the offence punishable under section 399/402of IPC and for the offence punishable under section 25 of the Arms Act for oneyear's rigorous imprisonment. All the sentences were to run concurrently. And whetherthe sentence directed by the trial Court can be reduced? 11.The appellants are sentenced for the offence punishable under section 399/402of IPC and for the offence punishable under section 25 of the Arms Act for oneyear's rigorous imprisonment. All the sentences were to run concurrently. Theappellants remained in the custody for 20 months, therefore, sentences for the aforesaidoffences are already executed and therefore, at present, the main matter ofdiscussion in the appeals is for the offence punishable under section 27 of theArms Act. 12.If a person keeps any fire arm or cartridges without any licence then, he is liable for the offence punishable under section 25 of the Arms Actbut, if he uses that fire arm in an incident illegally then, he shall beresponsible for the offence punishable under section 27 of the Arms Act. In thepresent case, no one has alleged that at the time of seizure of the fire arms,when the appellants were challenged by the police, they did any fire from thefire arms. On the contrary, it is told that they surrendered without anyresistance and therefore, it cannot be said that they used the fire arms forany illegal purpose. Consequently, no offence punishable under section 27 ofthe Arms Act is constituted against the appellants. The learned AdditionalSessions Judge has erred in convicting the appellants for the offence punishableunder section 27 of the Arms Act. 13.To prove the incident, Head Constable Lakhan Lal (P.W.2), ASI Shri Tomar (P.W.3), Mardan Singh(P.W.5), Constable Ram Prasad (P.W.6), Head Constable Chhittu Lal Patel (P.W.7) were examined, who told about the entireincident. It is very strange that Shri Puranik , SHO, Police Station Jujharnagar ,who conducted the entire raid was not at all examinedbefore the trial Court and therefore, the seizure done from the appellantscould not be proved. The independent witness Mardan Singh has stated that the entire police force was parted with 4 parts and raidwas done by the police. Constable Ram Prasad has stated that he was in theparty of Head Constable Chhittu Lal Patel, whereas, Head Constable Chhittu Lal Patel has denied the fact that he was leading a party.On the contrary, he told that he was with Shri Puranik , SHO. Constable Ram Prasad has stated that he was in theparty of Head Constable Chhittu Lal Patel, whereas, Head Constable Chhittu Lal Patel has denied the fact that he was leading a party.On the contrary, he told that he was with Shri Puranik , SHO. 14.Head Constable Lakhan Lal has stated that he was in the party of Shri Naqvi , SO, Police Station Gourihar .ASI Shri Tomar also statesthat he was leading a party and the independent witnesses were there with him.Under such circumstances, there is a material contradiction in the evidencegiven by these persons that whether 3 groups were formed or 4 groups wereformed of the entire police force. Such contradictions can arose only in a condition where, each of the witness is telling about the incident,according to his own wisdom as if no such raid took place. 15.It is told by all the witnesses that the culprits were talking to commit a Dacoity in the house of some Advocate at village Kheri . On the contrary, it was admitted by the independentwitness Mardan Singh that he could not hear the talkstook place between the culprits because when SHO Shri Puranik reached on a cliff, he challenged theculprits and therefore, it is apparent that before anybody could hear the talksbetween the culprits, they were challenged and arrested. Under suchcircumstances, it cannot be said that the culprits were collected to make aplan of dacoity . 16.The witnesses, specially a police official can bebelieved, if he recovers any property from anyone or he becomes a witness toany document or he deposes himself as an eye witness, otherwise every policeofficial has to do so many investigations on each and every day, so that hecannot remember the entire matter about a particular incident. In the presentcase, Head Constable Lakhan Lal ,ASI Shri Tomar , ConstableRam Prasad and Head Constable Chhittu Lal Patel neither put their signatures on any document ofseizure nor their case diary statements were recorded by Shri Puranik or any other Investigation officer andtherefore, they are giving the version of the incident according to their ownwisdom. Under such circumstances, when Shri Puranik was not examined and Mardan Singh (P.W.5) has stated that nothing was recovered from the appellant Kalidin then, it appears that he put his signatures onvarious seizure memos without reading those documents. Under such circumstances, when Shri Puranik was not examined and Mardan Singh (P.W.5) has stated that nothing was recovered from the appellant Kalidin then, it appears that he put his signatures onvarious seizure memos without reading those documents. Mardan Singh has accepted that he is a patent witness of the police and he is awitness in several cases pending before Laundi and Chhatarpur Courts. Under such circumstances, it appearsthat the police did not take independent witnesses in the case. The testimonyof Mardan Singh cannot be believed therefore, no seizureis proved from the appellants, beyond doubt. 17.In this respect, the testimony of Hiralal (D.W.1) andRaja Bhaiya (D.W.2) cannot be brushed aside. Theyhave stated that the appellants were called from the temple and thereafter,they were arrested. It is no where clear that from where the police obtainedthe fire arms. There is no criminal record shown of the appellants that theyhad done any crime in the past and therefore, it is not expected from aninnocent villager that he would initiate his first crime by a dacoity . It is easy for the police to show the seizure from4-5 persons of various fire arms and to say that they were collected to commita dacoity . Under such circumstances, where Shri Puranik , SHO, who recoveredthe fire arms was not examined, Mardan Singh was apatent witness of the police, no independent witness was taken by the police,whereas, police officials cannot be believed about that incident, it is notproved beyond doubt that the appellants were collected along with other accusedpersons to plan a dacoity . They could not be convictedfor the offence punishable under section 399 or 402 of IPC. The learnedAdditional Sessions Judge has erred in convicting the appellants for theoffence punishable under section 399 read with section 402 of the IPC. 18.As discussed above, it is not proved beyond doubt that the appellants weregathered in a field to plan a dacoity and it is alsonot proved beyond doubt that any fire arm was recovered from any of theappellants. Under such circumstances, they cannot be convicted for the offencepunishable under section 25 of the Arms Act. Moreover, the objection taken bythe learned counsel for the appellants about prosecution sanction appears to becorrect. If prosecution sanction, Ex.P/5 is perused then, it would be clearthat it is a cyclostyled form in which some particulars were filled by theclerk of the District Magistrate. Moreover, the objection taken bythe learned counsel for the appellants about prosecution sanction appears to becorrect. If prosecution sanction, Ex.P/5 is perused then, it would be clearthat it is a cyclostyled form in which some particulars were filled by theclerk of the District Magistrate. District Magistrate had not passed an orderin a judicious manner. It appears that a cyclostyled order was placed beforethe District Magistrate and the then, District Magistrate put his signature onthat cyclostyled order and therefore, Ex.P/5 which was a sanction forprosecution cannot be accepted as a valid sanction and therefore, the policecould not prosecute the appellants for the offence punishable under section 25 ofthe Arms Act in want of proper sanction. Hence, on this reason, the appellantscould not be convicted for the offence punishable under section 25 of the ArmsAct. 19.On the basis of the aforesaid discussion, it is apparent that the appellants neithercan be convicted for the offence punishable under section 25 or 27 of the ArmsAct nor they can be convicted for the offence punishable under section 399 readwith section 402 of IPC. They even cannot be convicted for any inferior offenceof the similar nature. Under such circumstances, the appeal filed by theappellants appears to be acceptable and consequently, it is hereby accepted.Conviction as well as sentence directed against the appellants for the offencepunishable under section 399 read with section 402 of IPC and section 25/27 ofthe Arms Act is hereby set aside. They are acquitted from all the chargesappended against them. They would be entitled to get the fine amount back, ifthey have deposited before the trial Court. 20.Presence of the appellants is no more required before this Court and therefore,it is directed that their bail bonds shall stand discharged. 21.Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.