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Madhya Pradesh High Court · body

2017 DIGILAW 317 (MP)

Ramshankar v. State of M. P.

2017-03-02

N.K.GUPTA

body2017
JUDGMENT 1. Since all the appeals are connected with the common judgment, therefore, decided by this common judgment. 2. All of the appellants have preferred the present appeal against the judgment dated 4.5.2007 passed by the Special Judge under MPDVPK Act, Bhind in Special Case No.7/2007, whereby each of the appellants has been convicted of offence under sections 399, 400 and 402 of IPC read with section 11/13 of MPDVPK Act and sentenced to five years rigorous imprisonment with fine of Rs.1,000/-, six years rigorous imprisonment with fine of Rs.2,000/- and three years rigorous imprisonment with fine of Rs.1,000/- respectively. Also appellant Ramshankar and Girraj have been convicted of offence under section 25(1B)(a) of Arms Act read with section 11/13 of MPDVPK Act and sentenced to three years rigorous imprisonment with fine of Rs.1,000/-. 3. Prosecution's case, in short, is that on 21.11.2006 S.I. Ashish Singh Pawar (PW3) received an information that some culprits have gathered near Shashkiya Kratrim Garbhadhan Kendra, village Birkhadi and they were planning to commit dacoity. He recorded the information in a rojnamcha Ex.P-12 and thereafter collecting the force, he left police station Gohad Chauraha. He was mainly accompanied by Constable Jagram Singh (PW1) and Head Constable Brajbhushan (PW5). The police force surrounded the appellants and one Girraj. They heard their talks relating to preparation of planning to commit dacoity on petrol pump. From the accused Ramshankar, one hand-made pistol with a round was recovered, whereas one handmade pistol with a round was recovered from Girraj @ Sethi. One sword from accused Anil Sharma and one sickle each from accused Ravi and Banti were recovered. Appellants were arrested. They were taken to the police station, where a rojnamcha Ex.P-13 was written and case was registered with the FIR Ex. P-14. Various fire-arms were sent to Constable Armour and a report Ex.P-11 was received. The District Magistrate had granted a prosecution sanction Ex.P-16. After due investigation, the charge sheet was filed before the Special Court. 4. The appellants abjured their guilt. They did not take any specific plea but they have stated that they were falsely implicated in the matter. In defence, Bhure Sharma (DW1) was examined. 5. The trial Court after considering the evidence adduced by the parties convicted the appellants as mentioned above, whereas the appellants Banti, Ravi and Anil Sharma were acquitted from the charge of section 25(1B)(a) of the Arms Act. 6. In defence, Bhure Sharma (DW1) was examined. 5. The trial Court after considering the evidence adduced by the parties convicted the appellants as mentioned above, whereas the appellants Banti, Ravi and Anil Sharma were acquitted from the charge of section 25(1B)(a) of the Arms Act. 6. I have heard the learned counsel for the parties at length. 7. In such type of cases, it is for the police to earn the confidence of the Court by making a fair investigation and, therefore, prima facie it is required that independent witness should have been taken at the time of raid. According to rojnamcha Ex.P-12, an intimation was received and SHO Ashish Singh Pawar (PW3) left the police station at 07:45 p.m. However, according to the FIR Ex.P-14, the spot was seven kilometers away from the police station, where the police force went by motorcycles. First recovery was done by Ashish Singh Pawar at about 8:30 p.m. from the accused Ramshankar and a seizure memo Ex.P-1 was prepared, which indicates that he had sufficient time to call independent witnesses before leaving the police station but neither he called the independent witnesses before leaving the police station nor he called independent witnesses at the spot. Though there was a temple near the spot and priest of that temple could be easily available. He took Constable Jagram Singh (PW1) and Head Constable Brajbhushan (PW5) as witness for preparing of seizure memo and those were the interested witness being police officials and, therefore, due to such tainted investigation, testimony of S.I. Ashish Singh Pawar relating to seizure of weapon goes away. It was not proved beyond doubt that any pistol was recovered from either the appellant Ramshankar or accused Girraj @ Sethi. The trial Court has acquitted the various appellants having sword or sickles but on the same analogy, the appellant Ramshankar would have been acquitted from the charge of section 25(1B)(a) of the Arms Act read with section 11/13 of MPDVPK Act. 8. The trial Court has acquitted the various appellants having sword or sickles but on the same analogy, the appellant Ramshankar would have been acquitted from the charge of section 25(1B)(a) of the Arms Act read with section 11/13 of MPDVPK Act. 8. It is often found that the police officer collected five persons at police station and to show recovery of the various weapons but in the light of judgment passed by the Single Bench of this Court in case of Pahalwan Singh v. State of M.P. [ 1982 JLJ 300 = 1983 MPLJ 449 ], in which it is held that if a group of persons, persons were passing through a jungle having arms then it would not sufficient to constitute an offence under section 399 or 402 of IPC. According to that judgment, it is to be proved beyond doubt that the accused persons were preparing a plan of dacoity. In this case, S.I. Ashish Singh Pawar (PW3) and Brajbhushan (PW5) have tried to inform about the talk took place amongst the accused persons. They claimed that they heard the talks which took place between them and their statements indicate that they simply reproduced the talks which was mentioned in rojnamcha Ex.P-13. If S.I. Ashish Singh Pawar and Head Constable Brajbhushan could hear the talk of the accused persons then there was no problem to Jagram Singh (PW1) to hear such a talk but he did not mention in his statement that he heard such talks. He claimed that he heard the talk took place between the accused persons but he did not give any detail of the talk which he had heard, which indicates that the description of alleged talk was a creation of Head Constable Brajbhushan and it was mentioned in rojnamcha Ex.P-13, therefore, Brajbhushan could inform about the talk in detail, whereas S.I. Ashish Singh Pawar did not tell about details of that talk but he mentioned about the talk in brief. Looking to the spot map Ex.P-15, it appears that there was no arrangement of light and also it was not possible for the culprits to talk for planning of a dacoity in a loud manner and, therefore, in absence of any light, the police party could not imagine the position and distance of culprits collected at the spot. 9. Looking to the spot map Ex.P-15, it appears that there was no arrangement of light and also it was not possible for the culprits to talk for planning of a dacoity in a loud manner and, therefore, in absence of any light, the police party could not imagine the position and distance of culprits collected at the spot. 9. That, possibility was there that the culprits would have arms and they could fire upon the police party and, therefore, it was not possible for the police party to go much nearer to the culprits and to hear talks. As submitted by the learned counsel for the appellants, S.I. Ashish Singh Pawar has accepted in Para 17 that there was no petrol pump within the territory of four kilometers of the spot and Ashish Singh Pawar or Brajbhushan could not inform about a particular petrol pump for which the appellants were making a plan of dacoity. Secondly it was told by S.I. Ashish Singh Pawar and Head Constable Brajbhushan that the accused were planning to commit dacoity to visit the spot on motorcycle and they had two motorcycles at the spot, whereas only one motorcycle is shown to be recovered from the accused Girraj. Five persons could not ride on one motorcycle and, therefore, it was not possible for the appellants to comply their planning of dacoity. They were not able to visit the petrol pump on that night. If seizure memo Ex.P-1 and P-2 are examined then it is alleged that fire arms were recovered from Ramshankar and Girraj but those fire-arms and cartridges were not sealed at the spot. There is no impression of seal on the seizure memo Ex.P-1 and P-2 and, therefore, it is not apparent that the same arms were sent to Constable Armour Rajkishore Singh (PW2). Constable Armour Rajkishore did not mention that he opened any seal before examining the fire-arms or thereafter he again sealed those fire arms. Under these circumstances, it cannot be said that the report Ex.P-11 given by Constable Armour Rajkishore was of the fire arms recovered from the appellant Ramshankar and accused Girraj @ Sethi. When it is highly doubtful that any arm was recovered from any of the appellant then it cannot be presumed that they were gathered at a particular place and making a plan of dacoity. When it is highly doubtful that any arm was recovered from any of the appellant then it cannot be presumed that they were gathered at a particular place and making a plan of dacoity. It was possible that various arms were planted by the Investigation Officer with the appellants. 10. On the basis of the aforesaid discussion, where it is doubtful that the appellants have arms in their hands so that they could fulfil the plan of dacoity, they could not go to any petrol pump, which was nearer to the spot by one motorcycle, where the nearest petrol pump was four kilo-meters away from the spot. Hence, it is possible that S.I. Ashish Singh Pawar and Head Constable Brajbhushan have stated that they heard about talks took place between the appellants. There was dark in the night and there was no arrangement of light, therefore, it is possible that there were more than five persons at the spot and out of them, few one would have left the spot and, therefore, it cannot be said beyond doubt that a particular appellant was talking about a particular sentence relating to robbery. S.I. Ashish Singh Pawar and Head Constable Brajbhushan did not mention that a particular sentence was told by which particular accused. Under these circumstances, the testimony of Ashih Singh Pawar and Brajbhushan cannot be accepted that they heard about the talks took place between the appellants. 11. As discussed above, evidence of S.I. Ashish Singh Pawar and Head Constable Brajbhushan cannot be accepted that they heard the talk of the appellants. In absence of such talks in the light of aforesaid judgment passed by the single Bench of this Court in case of Pahalwan Singh (supra), none of the appellant could be convicted of offence under sections 399, 400 and 402 of IPC and, therefore, they could not be convicted of offence under section 11/13 of MPDVPK Act. 12. The trial Court has committed an error in convicting the appellants for aforesaid charges and the appellant Ramshankar was also convicted of offence under section 25(1B)(a) of Arms Act. In the result, appeals filed by these four appellants namely Ramshankar, Anil, Ravi and Banti @ Radharaman are acceptable and consequently, they are accepted. 13. The conviction as well as sentence recorded by the trial Court against various appellants of various offences are hereby set aside. In the result, appeals filed by these four appellants namely Ramshankar, Anil, Ravi and Banti @ Radharaman are acceptable and consequently, they are accepted. 13. The conviction as well as sentence recorded by the trial Court against various appellants of various offences are hereby set aside. All the appellants are acquitted from the charges of sections 399, 400 and 402 of IPC read with section 11/13 of MPDVPK Act and appellant Ramshankar is acquitted from the charge of section 25(1B)(a) of Arms Act read with section 11/13 of MPDVPK Act. They would be entitled the get fine amount back if they have deposited before the trial Court. 14. The appellants are on bail. Their presence is no more required before this Court now and, therefore, it is directed that their bail bonds shall stand discharged. It is informed that appellant Anil is in custody due to another case and, therefore, an intimation be given to the jail authority that his presence is no more required in the present appeal. 15. A copy of the judgment be sent to the Court below along with its record for information.