Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 770 (MP)

Gajram v. State of M. P.

2016-09-01

D.K.PALIWAL

body2016
ORDER 1. This criminal revision has been filed under section 397 read with section 401 of CrPC, being aggrieved by the judgment dated 11.12.2006 passed by First Additional Sessions Judge, Ashoknagar in Criminal Appeal No.874/2006, whereby conviction of the petitioner for the offence punishable under section 25(1-b)(a) of Arms Act has been recorded by the Judicial Magistrate First Class, Ashoknagar in Criminal Case No.1134/2005 and sentenced to suffer one year RI and fine of Rs.100/- has been affirmed and appeal has been dismissed. 2. As per the prosecution case, on receipt of information on 18.1.2005 by SI V.P. Kachware that some persons are having illegal arms, he along with the police force reached the spot and surrounded the accused persons and search was made. The petitioner was found in possession of one country made katta of 315 bore in the right pocket of his pant and seven live cartridges. He was not having license. Katta and cartridges have been seized and the petitioner was arrested. Thereafter, FIR has been registered. 3. After due investigation and obtaining the sanction of prosecution, charge sheet has been filed in the Court of Judicial Magistrate First Class Ashoknagar. 4. Learned trial Court has framed and explained the charge to the petitioner who abjured his guilt and claimed trial. 5. The prosecution has examined as many as six witnesses in support of its case but none has been examined in defence. Learned trial Court convicted the petitioner and sentenced as mentioned in Para-1 of the judgment. Being aggrieved, the petitioner has filed Criminal Appeal No.874/2006 which has also been dismissed. Thereafter, this criminal revision has been filed. 6. It is submitted that learned trial Court have not properly appreciated the evidence and material on record and erred in holding the petitioner guilty. The independent witnesses of the seizure memo have not supported the prosecution case. The alleged articles has not been sealed on the spot. The complainant himself investigated the matter. Learned trial Court has not properly considered the aforesaid aspect and erred in convicting the petitioner. The learned Public Prosecutor supported the conviction and sentence. 7. I have considered the submissions of learned counsel and perused the record. 8. Shyam (PW1) and Bunty (PW6) are the independent witnesses of seizure. They have not supported the prosecution and turned hostile. 9. Learned trial Court has not properly considered the aforesaid aspect and erred in convicting the petitioner. The learned Public Prosecutor supported the conviction and sentence. 7. I have considered the submissions of learned counsel and perused the record. 8. Shyam (PW1) and Bunty (PW6) are the independent witnesses of seizure. They have not supported the prosecution and turned hostile. 9. Ashok Sharma (PW5) deposed that on 18.11.2005, he was posted as Assistant Sub-Inspector at Police Station Ashok Nagar. On that date, he along with V. P. Kachware and with the police force went to Tulsi Park, where Gajram was caught along with three others. Search was made and one country made Katta of 315 bore from the left pocket and seven live cartridges from the right pocket of the pant were found. Gajram was not having any license. V.P. Kachhware says that on 18.11.2005 he has received an information then he along with police force went to Tulsi Park where Gajram and others were caught hold. Search was made and one country made Katta and seven live cartridges from the pocket of pant of Gajram were found. Gajram was not having any license. One country made Katta and live cartridges were seized and seizure memo Ex-P-1 was prepared. 10. Ashok Sharma (PW5) denied that no seizure of Katta and cartridges were made in his presence. From the perusal of seizure memo Ex.P-1, it appears that it does not bear the signature of Ashok Sharma (PW5). 11. V.P. Kachhware (PW4) says in para-5 that the witnesses found in Tulsi Park. The Witnesses of seizure memo Ex.P-1 is Shyam (PW1) and Bunty (PW6). Shyam is residing at Gaushala, Ashok Nagar and Bunty is residing at Pachedikeda Road Ashok Nagar. They have not supported the seizure memo. There is no evidence that these witnesses were residing near Tulsi Park. Hence their presence at the spot is doubtful. 12. V.P. Kachhware (PW4) in para-3 denied that he has not sealed the Katta and cartridges at the spot but he has admitted that it is not mentioned in the seizure memo that Katta and cartridges were sealed. Thus in the absence of note that Katta and cartridges were sealed on the spot renders the statement of V.P. Kachhware (PW4) doubtful. 13. Thus in the absence of note that Katta and cartridges were sealed on the spot renders the statement of V.P. Kachhware (PW4) doubtful. 13. Premsingh Yadav (PW3) who has examined Katta and cartridges stated that at the time of examination, Katta and cartridges were not produced in the sealed condition. Had the Katta and cartridges were sealed at the spot, there was no reason to send them in loose condition for examination by armourer. 14. Hon'ble apex Court in the case of Nand Kishore v. State of Haryana, reported in 1998 SCC (Cri) 568, has held that in absence of proof of the seized arm and ammunition being properly secured and sealed and thereafter being deposited in malkhana and in view of the armourer's evidence that the case property when received by him was in “loose condition”, the possibility of tampering with the weapon could not be ruled out and the benefit has been given to the appellant. In the case in hand, considering that there is no evidence regarding proper sealing of the articles and the articles were sent in loose condition to the armorer, possibility of tampering cannot be ruled out. 15. Manohar Dubey (PW2) deposed that on 15.12.2005 he was posted as Arm Clerk in the office of District Magistrate, Ashok Nagar and Mukesh Chandra Gupta was posted as District Magistrate. He is acquainted with his signature because he has seen him making his signature. On 15.12.2005, case diary of Crime No.616/2005 of Police Station, Ashoknagar along with country made Katta and live cartridges were produced before Mukesh Chandra Gupta and sanction of prosecution was dictated to him. He has typed the order Ex.P-3 which bears signature of Mukesh Chandra Gupta. In Para-2 of cross-examination he said that the Katta and cartridges were produced in the sealed condition. Seal was opened before the District Magistrate and he categorically stated that the articles were not sealed after seeing by the District Magistrate. 16. On perusal of Ex.P-3, nowhere it is mentioned that Katta and cartridges were produced in a sealed condition. Therefore, the statement of Manohar Dubey that Katta and cartridges were produced in sealed condition appears to be doubtful. As noticed above Premsingh Yadav, who examined the Katta and cartridges has categorically stated that Katta was produced before him in loose condition and he has returned the Katta without sealing the same. Therefore, the statement of Manohar Dubey that Katta and cartridges were produced in sealed condition appears to be doubtful. As noticed above Premsingh Yadav, who examined the Katta and cartridges has categorically stated that Katta was produced before him in loose condition and he has returned the Katta without sealing the same. In the light of the statement of Premsingh Yadav, again the statement of Manohar Dueby that articles were produced in the sealed condition becomes doubtful. 17. In view of aforesaid discussion, it is found that the independent witnesses of seizure memo Shyam (PW1) and Bunty (PW2) have not supported the seizure of Katta from the possession of the petitioner. Ashok Sharma (PW5) has not signed the seizure memo. V.P. Kachware (PW4) in his statement regarding sealing has been found doubtful. Therefore, in the opinion of this Court the seizure of Katta and cartridges from the possession of the petitioner is doubtful. In the opinion of this Court prosecution has not succeeded in proving beyond doubt that the katta and live cartridges were seized from the possession of the petitioner. 18. In view of the above, this petition deserves to be allowed. Consequently, this petition is allowed. The conviction and sentence of the petitioner is hereby set aside. The petitioner is acquitted of the charges under section 25(1-b)(a) of Arms Act. 19. This revision stands disposed of accordingly. S. S. Tomar for petitioner; R. S. Yadav for respondent/State.