Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1082 (MP)

Upama Shrivastava v. State of M. P.

2015-10-09

N.K.GUPTA, SHANTANU KEMKAR

body2015
JUDGMENT Gupta, J. -- 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 31.8.2010 passed by the Additional Sessions Judge, Sehore in S.T. No.153 of 2007 whereby, the appellant has been convicted of offence under section 30 of the Arms Act with a fine of Rs.2,000/- and two months simple imprisonment in lieu of payment of fine. 2. The prosecution’s case in short is that on 5.6.2007 at about 12:20 p.m. the complainant Narayan Singh Mewara (PW2) had lodged an FIR at Police Station Bilkisganj, District Sehore that at about about 9:00 a.m. in the morning he along with his elder brother Ramsingh (PW3) and cousin Durga Prasad (PW5) went to his field at Village Bilkisganj, the complainant found a trench dug in his field and therefore, he and his companions started to fill up the trench. In the meantime, the accused Dr. Pramod Shrivastava, Padam Kumar Bhatt, Ajay Upadhyay and Pratap Singh Pawar reached there in the car and started quarreling. They were armed with a 315 bore gun of the appellant Upama Shrivastava. Padam Kumar Bhatt fired upon the complainant with that gun but, the complainant could save himself by bending down. Second fire was also done by the accused Pratap Singh by taking gun from Padam Kumar. Dr. Pramod Shrivastava had also fired with a hand made pistol. After lodging of the FIR no one was sent for medico legal examination since no one was injured. However, one 315 bore gun belonging to the appellant was recovered from the accused Dr. Pramod Shrivastava from his house. After due investigation a charge-sheet was filed before the JMFC, Sehore who committed the case to the Court of Sessions and ultimately it was transferred to Additional Sessions Judge and Special Judge, Sehore. 3. The appellant abjured her guilt. She took a plea that at the time of incident she was present in the car and some one suddenly snatched her gun of 315 bore and fired by that gun twice. However, no defence evidence was adduced. 4. The Additional Sessions Judge after considering the prosecution’s evidence acquitted all other accused persons from the charge of section 307 read with sections 34, 294, 506 (Part II) of IPC. Even Dr. However, no defence evidence was adduced. 4. The Additional Sessions Judge after considering the prosecution’s evidence acquitted all other accused persons from the charge of section 307 read with sections 34, 294, 506 (Part II) of IPC. Even Dr. Pramod Shrivastava was acquitted from the charge of section 25 of the Arms Act whereas, the accused Padam Singh Bhatt and Pratap Singh Pawar were acquitted from the charge of section 27 of the Arms Act. Only the appellant has been convicted and sentenced as mentioned above. 5. We have heard the learned counsel for the parties. 6. In the present case, the complainant Narayan Singh Mewada filed a Criminal Appeal No.2316/2010 under section 372 of the CrPC and the same has been dismissed by the Division Bench of this Court at motion stage vide order dated 30.9.2013. Hence, there is no need to discuss about the fact as to whether any gun was used in the crime. When it was not proved beyond doubt that the co-accused Padam Kumar Bhatt and Pratap Singh Pawar fired from any gun then the presence of the gun at the time of incident is highly doubtful. In this context the seizure memo Ex.P-9 may be perused where one gun, licence of the gun and two empty cartridges were recovered from the co-accused Dr. Pramod Shrivastava by the police and it was mentioned that the gun was recovered from the house of Dr. Pramod Shrivastava where the appellant was also residing. Though the police had shown the recovery of the gun from the co-accused Dr. Pramod Shrivastava, but since it was recovered from the house where the appellant was residing it cannot be said that the co-accused Dr. Pramod Shrivastava had exclusive possession of the gun at the time of recovery. Hence, by recovery of licenced gun of the appellant from the co-accused Dr. Pramod Shrivastava no adverse inference can be drawn against the appellant, that the gun was handed over to Dr. Pramod Shrivastava and, therefore, the appellant had violated the licence condition of the gun. 7. It is strange that the Investigation Officer ASI R.P. Mishra (PW8) had tried to mislead the trial Court by sending the empty cartridges recovered from Dr. Pramod Shrivastava to the Forensic Science Laboratory along with the gun to get the hammer mark of such cartridges for examination. 7. It is strange that the Investigation Officer ASI R.P. Mishra (PW8) had tried to mislead the trial Court by sending the empty cartridges recovered from Dr. Pramod Shrivastava to the Forensic Science Laboratory along with the gun to get the hammer mark of such cartridges for examination. It was not the case of the prosecution that the co-accused Dr. Pramod Shrivastava had collected the empty cartridges from the spot and took it to his house and therefore, seizure of two empty cartridges from the house of Dr. Pramod Shrivastava was of no use. If the appellant had a gun and she had two empty cartridges at her house of that gun then hammer mark of those cartridges should have been of the gun which was of the appellant Upama Shrivastava. It is not alleged by ASI, R .P. Mishra (PW8) that he recovered any empty cartridge from the spot. No recovery has been shown either of empty cartridges or remains of bullet from the spot. In the spot map Ex.P-5 it was not shown that any empty cartridge was found lying on the spot and hence trial Court as well as the appellate Court found that alleged incident in which fire was done by the co-accused Padam Kumar Bhatt and Pratap Singh Pawar was doubtful. 8. When it was not proved beyond doubt that the coaccused Padam Kumar Bhatt and Pratap Singh Pawar had fired from a gun, particularly 315 bore gun then there was no evidence to show that the appellant gave her gun to her husband or aforesaid co-accused. For the sake of argument however, it is expected that fires were done by the co-accused with the help of 315 bore gun then gun was not seized from the spot, no empty cartridge was recovered from the spot to prove the hammer marks on such empty cartridge and to ascertain that the gun by which the fires were done by the coaccused was the same which was recovered from the coaccused Dr. Pramod Shrivastava. The prosecution had to prove the connection of those empty cartridges with the place of incident. Hence, there was no evidence that the appellant gave her gun to her husband Dr. Pramod Shrivastava or co-accused Padam Kumar Bhatt or Pratap Singh Pawar. Pramod Shrivastava. The prosecution had to prove the connection of those empty cartridges with the place of incident. Hence, there was no evidence that the appellant gave her gun to her husband Dr. Pramod Shrivastava or co-accused Padam Kumar Bhatt or Pratap Singh Pawar. Hence, on the basis of aforesaid assumption, the prosecution had failed to prove its case beyond doubt that the appellant has violated the licence condition of the gun possessed by her. 9. The trial Court has convicted the appellant on the basis of her statement and statement given by her husband Dr. Pramod Shrivastava under section 313 of the CrPC in which they have stated that the appellant Upama Shrivastava was present in the car along with the gun and someone snatched her gun and fired for two times. Conviction may be recorded on the basis of confession done by the accused. If the evidence given by the appellant under section 313 of the CrPC is considered then it appears to be an attempt of the appellant or her husband Dr. Pramod Shrivastava to take a defence that the presence of the appellant in the car may be accepted before the trial Court and in that case the statement given by the appellant as well as the co-accused Dr. Pramod Shrivastava gives a story of innocence of the appellant that she did not violate the licence condition of the gun but gun was snatched from her. Actually the statement given by the appellant and Dr. Pramod Shrivastava was not a confession because in that statement an excuse was given that gun was snatched from the appellant Upama Shrivastava. Hence, such statement cannot be considered as a confession. Statement given by the appellant and her husband Dr. Pramod Shrivastava was nothing but a defence taken by them before the trial Court. The defence if not proved by the accused then it was for the prosecution to prove its case beyond doubt. It is a settled view of the apex Court that if accused could not prove its defence then no advantage is received by the prosecution and it is for the prosecution to prove its case beyond doubt. The defence if not proved by the accused then it was for the prosecution to prove its case beyond doubt. It is a settled view of the apex Court that if accused could not prove its defence then no advantage is received by the prosecution and it is for the prosecution to prove its case beyond doubt. If the appellant could not prove her defence that she was present in the car along with the gun then it cannot be presumed from her statement under section 313 of the CrPC that her gun was available in the car. When the trial Court as well as the appellate Court have found that no such incident relating to firing with 315 bore gun was proved beyond doubt then prosecution has failed to prove that the gun of the appellant was with the co-accused persons when they went to the disputed field. Hence, availability of the gun with the accused persons was not proved beyond doubt. When the prosecution could not prove its case beyond doubt and if the appellant could not prove her defence then the prosecution cannot walk in the shoes of appellant. 10. On the basis of the aforesaid discussion it is not proved that the gun of the appellant was available with the coaccused persons at the time of incident or therefore, the appellant violated the licence condition of the gun. It was not proved beyond doubt that when the gun was recovered by ASI R.P. Mishra (PW8) it was in the sole possession of the co-accused Dr. Pramod Shrivastava. Hence, the prosecution has failed to prove that the appellant had violated the licence condition of the gun or she committed a crime under section 30 of the Arms Act. The trial Court has committed an error in convicting the appellant of offence under section 30 of the Arms Act. Hence, the appeal filed by the appellant may be accepted. Consequently, it is hereby accepted. Her conviction as well as her sentence of fine for offence under section 30 of the Arms Act are hereby set aside. The appellant is acquitted from the charge of section 30 of the Arms Act. She would be entitled to get fine amount back from the trial Court, if it is deposited. 11. Consequently, it is hereby accepted. Her conviction as well as her sentence of fine for offence under section 30 of the Arms Act are hereby set aside. The appellant is acquitted from the charge of section 30 of the Arms Act. She would be entitled to get fine amount back from the trial Court, if it is deposited. 11. When the appellant is not found guilty of offence under section 30 of the Arms Act there is no reason to confiscate her gun and therefore, order of confiscation passed by the trial Court in the impugned judgment cannot be maintained. The order relating to confiscation of the gun is hereby set aside. The appellant would be entitled to get her gun back along with its licence. ..........