HABIBBHAI SABURBHAI MALEK vs STATE OF GUJARAT

Present appeal has been preferred by the appellant - original accused No. 1 being aggrieved and dissatisfied with the judgment and order dated 29/05/2017 passed by the learned 3rd Additional Sessions Judge, Nadiad in Sessions Case No. 14 of 2015, whereby, while acquitting both the accused from the charge of offences punishable under Sections 25(1) and 27 of the Arms Act, 1959 (for brevity, ''the Arms Act''), they were held to be guilty for breach of Sections 2(16), 2(36), 9, punishable under Sections 50 r/w. Section 51(1) of the Wild Life (Protection) Act, 1972 (for brevity, ''the Wild Life Act'') and sentenced to undergo simple imprisonment (SI) for three years and a fine of Rs.5,000/- each and in default of payment of fine, to undergo further SI for one month. Both the accused were also held to be guilty for the offence punishable under Section 30 of the Arms Act and sentenced to undergo SI for 06 months and a fine of Rs.1,000/- each and in default of payment of fine, to undergo, further SI for 07 days. The sentences are ordered to run concurrently.

Facts in nutshell of the case on hand are such that on 27/07/2007 at about 1:00 p.m. when complainant - Jaydeepsinh Kanjibhai Sodha Parmar, Police Constable, Nadiad Town Police Station, working in Reader Branch in the office of the Superintendent of Police, Kheda @ Nadiad, was going to his native at Muvada, Tal. Thasara on motorcycle with one Chandrasinh Jitendrasinh Sisodiya, working as Operator in Police Control Room, Nadiad and while passing through Mahor river bridge, he heard the sound of firing and hence, he stopped his motorcycle and went by walk on the riverbed, where, he found a mob of people gathered and also found an animal, which stated to be the blue bull (nilgai), lying dead, having wound on its neck and was bleeding. While enquiring with the people gathered, one person, who was possessing a gun like weapon, ran away towards nearby bushes. The complainant chased him, however, could not caught him, but the weapon (gun) possessed by the said person, fell down. The complainant picked up the same and found the said gun was bearing number " 26059" . Thus, the accused No. 2 hunted the blue bull ( nilgai) using the licenced gun belonged to the accused No. 1 and thereby, committed the offence under the Wild Life Act and the Arms Act, for which, a complaint came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by a Court of Sessions, it was committed to the Sessions Court concerned. The trial Court framed the charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined as many as 11 witnesses and also produced several documentary evidence. At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, ''the Code'') were recorded, in which, the accused denied the evidence forthcoming on the record and stated that a false case has been registered against the accused. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge has come to the aforesaid conclusion by the impugned judgment and order, being aggrieved of which, the present appellant - original accused No. 1 has preferred the present appeal.

Heard Mr. Mrugen K. Purohit, the learned advocate for the appellant - original accused No. 1 and Ms. M. H. Bhatt, the learned Additional Public Prosecutor, for the respondent - State. 3.1 The learned advocate for the appellant - original accused No. 1 submitted that the trial Court has committed a grave error in convicting the present appellant. It was contended by Mr. Purohit that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led before it and looking to the provisions of law itself it is established that the prosecution has failed to prove the whole ingredients of the offence against the accused. He took this Court through the oral as well as the entire documentary evidence on record and submitted that only for the reason that the firearm belonged to the appellant - original accused No. 1 alleged to have been used in the crime, the present appellant could not have been convicted and sentenced for the offence in question. He submitted that at the time when the incident in question had occurred, the present appellant was ill and suffering from Typhoid and was not even in a position to move freely. Besides, while taking this Court to the depositions of the prosecution witnesses, he submitted that not a single prosecution witness has stated to have seen the present appellant at the scene of offence. It is further submitted that the recovery or discovery of the weapon itself is a very weak piece of evidence and even if joint recovery or discovery of arms is concerned, at the best the recovery or discovery relates to the person who was holding the weapon at the relevant point of time as claimed by the prosecution, which was used by the other accused. He submitted that there is no other corroborative evidence so as to infer the guilt of the appellant. The learned advocate for the appellant also submitted that in the case on hand, no prior permission from the District Magistrate for instituting criminal prosecution in respect of offence under Section 3 of the Arms Act, as required under the provisions of Section 39 of the Arms Act, has been taken and on that ground also, the conviction of the present appellant is not sustainable in the eye of law. In this regard, the learned advocate for the has referred and relied upon a decision rendered by the coordinate bench of this Court in Criminal Misc. Application No. 24632 of 2015 and allied matters dated 13/04/2017.

3.2 Thus, the gist of the submissions of the learned advocate for the appellant is that, only because the weapon (gun), allegedly used in the crime, belonged to the present appellant, he is implicated in the offence for which, there is no cogent and reliable evidence on record to prove the guilt of the appellant and to conclude against the present appellant. Accordingly, in the submission of the learned advocate for the appellant, the learned trial Judge having erred gravely in coming to such a conclusion and the impugned judgment and order being contrary to the law and the fact and also the evidence on record, cannot sustain and accordingly, he requested to allow the present appeal by setting aside the impugned judgment and order.

Per contra, Ms. Bhatt, the learned Additional Public Prosecutor for the respondent - State, submits that the learned trial Court has committed no error while appreciating the evidence on record. While opposing the present appeal, she has submitted that cogent and reliable evidence of prosecution witnesses has been appreciated in true and proper perspective by the learned trial Judge and there appears no manifest illegality and/or perversity and/or infirmity in the findings recorded and conclusion arrived at by the learned trial Judge. She, while drawing attention of the Court to the document, Ex. 54 submitted that it is clear from the said document that the weapon in question was belonged to the present appellant. Further, in response to the argument advanced by the learned advocate for the appellant that on the day of incident, the present appellant was suffering from Typhoid and was not in a position to even move freely, the learned Additional Public Prosecutor submitted that there is nothing on record to substantiate the said aspect. She submitted that no medical evidence is forthcoming record to prove the fact that the appellant was suffering from Typhoid during that time. The learned Additional Public Prosecutor further submitted that there is also nothing on record to suggest that the weapon in question was not in possession of the appellant and if, for the sake of argument it is believed so, in that case also, the appellant being a government servant is not expected to behave in such a negligent manner and the weapon is used in such a crime and therefore, the appellant is rightly convicted under Section 30 of the Arms Act for contravention of the conditions of the licence, besides for the main offence under the Wild Life Act. Thus, in her submission, the learned trial Court, at the time of appreciation of evidence, has carefully considered the evidence on record. The findings recorded by the learned Court below are based on oral as well as documentary evidence and there being no infirmity in the said findings, the view taken by the learned Sessions Judge may be affirmed and it is requested to dismiss the present appeal.

In response to the submission advanced by the learned Additional Public Prosecutor to the effect that the learned trial Court has rightly convicted the present appellant - accused for the offence punishable under Section 30 of the Arms Act for contravention of the conditions of licence, the learned advocate for the appellant - accused submitted that the prosecution has miserably failed to prove that the weapon (gun) of the present appellant was handed over by the present appellant - original accused No. 1 to the original accused No. 2. He submitted that in fact, there is no material on record to show that it was well within the knowledge of the appellant - accused No. 1 that the weapon (gun) would be used in commission of such offence and/or the weapon (gun) was used in commission of such offence. The learned advocate further submitted that in order to bring home the guilt of the accused for the offence under Section 30 of the Arms Act, the prosecution was required to prove that the accused had contravened the conditions of licence of possessing the fire arm by not taking its proper care. It is also submitted that even the licence is also not produced on record as it emerges from the evidence on record and there is no incriminating material sought from the appellant. He further submitted that even while recording the Further Statement of the appellant under Section 313 of the Code no such question was asked to the appellant in this regard and no any accusation specifically put to the accused in his examination under Section 313 of the Code. Accordingly, he submitted that in absence of any such evidence on record, the aforesaid argument of the learned Additional Public Prosecutor cannot sustain under the law and the learned trial Judge having failed to take into consideration the aforesaid crucial aspect of the matter, the conviction for the offence punishable under Section 30 of the Arms Act also cannot be sustained. 5.1 In support of his case, the learned advocate for the appellant has referred and relied upon following decisions:

i) Ranvir Yadav Vs. State of Bihar, reported in (2009) 6 SCC 595;

ii) Sukhjit Singh Vs. State of Punjab, reported in (2014) 10 SCC 270;

iii) Ajay Singh Vs. State of Maharashtra, reported in (2007) 12 SCC 341.

I have considered the submissions advanced by the learned advocates for the respective parties and gone through the impugned judgment and order passed by the learned trial Judge and also considered the evidence on record as well as perused the decision relied by the learned advocate for the appellant - accused. It appears that the appellant - accused is convicted for the offences under the Wild Life Act and also under the Arms Act. The learned advocate for the appellant - accused has mainly argued that only because the weapon by use of which the alleged offence had been committed, belonged to the present appellant, the offence cannot be attributed to the present appellant and he is falsely implicated in the crime. In the said backdrop, I have re- appreciated and re-evaluated the evidence on record. The learned Additional Public Prosecutor has referred the document Ex. 54 so as to prove the fact that the weapon (gun) used in the offence in question was belonged to the present appellant, a perusal of which, is suggestive of the fact that the weapon (gun) belonged to the present appellant. The learned advocate for the appellant has submitted that when the offence in question had occurred, the appellant was sick and suffering from Typhoid and was not in a position to move freely. However, he has fairly conceded the fact that there is nothing on record to prove the said fact. Accordingly, the aspects of presence of the accused at the time of commission of offence and the present appellant and the original accused No. 2 had, in aid and abetment of each other has committed the offence, are required to be proved by the prosecution beyond reasonable doubt. 6.1 I have gone through the deposition of complainant - Jaydeepsinh Kanjibhai Sodha Parmar at Ex. 16. In his cross-examination, he has clearly deposed that he had not seen anybody hunting the blue bull (nilgai). He has also stated in his cross-examination that the weapon (gun) in question was found to be unclaimed. Moreover, a perusal of the depositions of the panch-witnesses of different panchnamas reveals that except PW-9 Jesangbhai Mangalbhai Chauhan, Ex. 43, who was the panch-witness of panchnama of seizure of cartridge used in weapon used in offence, Ex. 35, all other panch-witnesses have turned hostile. Further, it appears that the person who was accompanying the complainant namely Chandrasinh Jitendrasinh Sisodiya has not been examined by the prosecution. Thus, as aforesaid, from the deposition of the complainant, it can be carved out that the complainant had not seen the present appellant at the scene of offence and the weapon (gun) in question was found to be unclaimed. Besides, there comes nothing on record to show that the present appellant was present at the scene of offence at the relevant time and accordingly, the said crucial aspect appears to have not been proved.

6.2 I have also gone through the impugned judgment and order, more particularly, the reasoning part. So far as presence of the present appellant at the time of offence is concerned, the learned Sessions Judge has observed in para 23 of the impugned judgment and order that, " it is argued by the learned advocate for the accused that at the time of offence, since the accused No. 1 was possessing the licence of gun and as the licence was in his name, he is falsely implicated in the offence; at the time of offence, he was under influence of Typhoid and it is contended that he was not in a position to move, however, the said fact appears to have been not believable. At the time of offence, accused No. 1 - Habibbhai was having valid licence of gun for use in self-defence. He is a government servant and after getting such licence, he ought to have taken due care and been serious about maintenance of the gun for the reason that it would be the personal responsibility of the person concerned who possesses such licence, when such a weapon is used and in the circumstance, it can be inferred that an educated government servant shall not keep his weapon unclaimed after getting the licence for gun and he will not give it to any body for use. Accordingly, it is proved that at the time of occurrence of offence, the accused Nos. 1 and 2 must be together and hunted nilgai (blue bull), however, with a view to spare him from the crime in question, fact of he having been sufferring from typhoid has been fabricated, which appears to have been not believable."

6.3 From the aforesaid observations made by the learned trial Judge it reveals that so far as presence of the present appellant - accused at the scene of offence at the relevant point of time is concerned, the learned trial Judge made only presumption as regards the same sans any cogent and reliable evidence to that effect and only on the fact that the present appellant - accused was having the valid licence to use the weapon and the weapon (gun) used in the crime belonged to the present appellant and the fact that appellant is the government servant and an educated person, he might not have kept his weapon (gun) unclaimed and/or in a negligent manner, he has come to such a conclusion against the present appellant, however, as aforesaid, without any cogent evidence. Further, on going through the depositions of other prosecution witnesses, there comes nothing on record to show that the present appellant was present while the offence in question had been committed. It is well settled that only presumption has no place, more particularly, in criminal proceedings unless it is corroborated by cogent and reliable evidence on record. Criminal jurisprudence requires the prosecution to prove its case against an offender beyond any reasonable doubt, which in the case on hand, is not the case for the reason that, the presence of the present appellant at the scene of offence itself is doubtful. Not a single prosecution witness had seen the appellant at the spot, even the complainant also.

6.4 The appellant is also convicted for the offence punishable under Section 30 of the Arms Act for SI for 06 months and fine with default clause. Section 30 of the Arms Act reads as under:

" 30. Punishment for contravention of licence or rule. - Whoever contravenes any condition of a licence or any provision of this Act or any rule made thereunder, for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both."

6.5 The above-referred section describes the punishment for contravention of licence or rule. As per the case of the prosecution, in the case on hand, the licenced weapon (gun) belonged to the present appellant - accused was used in the crime in question, whereby, a blue bull (nilgai) was hunted. The weapon (gun), which was found from the spot, was though stated to have been belonged to the present appellant and the present appellant stated to have been possessing the valid licence of weapon, as is revealed from the record, no such licence is forthcoming on record. Even, the concerned investigating agency appears to have taken no pains to bring the said licence on record and only a letter, Ex. 54 of the Additional District Magistrate, Kheda @ Nadiad, which mentions the name of the present appellant as the holder of the licence, has come on record. On going through the impugned judgment and order, the learned trail Judge has convicted the present appellant for the aforesaid offence (Section 30 of the Arms Act) on the count that the appellant has breached the rule/conditions of such licence, however, no such licence has been forthcoming on record and only it is observed that the appellant - accused has breached the rule/conditions of the licence sans such licence on the record.

6.6 At this stage, it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit HC-NIC Page 12 of 14 Created On Fri Sep 22 00:02:51 IST 2017 of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.

6.7 In the present matter, prosecution has led no evidence whatsoever to show that the accused had not taken due care of his gun amounting to contravention of the conditions of the licence. Merely because the weapon of the appellant - accused, allegedly used in the crime in question, does not by itself make him liable to be convicted for committing offence under Section 30 of the Arms Act. To prove an offence under Section 30 of the Arms Act, it has to be proved that accused had not taken proper care of his fire arm due to which such a incident had taken place. None of the prosecution witnesses appear to have witnessed the incident. Thus, they cannot prove whether accused had taken due care of his fire arm or not. Even, a perusal of the Further Statement of the appellant - accused also reveals that no question has been asked to the appellant - accused in this regard and no incriminating material has been brought to the notice of the present appellant. Thus, the prosecution has miserably failed to prove the ingredients of Section 30 of the Arms Act.

6.8 In the said circumstance, merely because the weapon (gun) used in the crime was belonging to the present appellant, he cannot be held to be guilty and in the facts and circumstances of the case on hand, in the considered opinion of the Court, the appellant is required to be acquitted by giving benefit of doubt as the prosecution has failed to prove its case against the present appellant beyond any reasonable doubt and accordingly, present appeal requires to be allowed.

In view of the aforesaid discussion, present appeal succeeds. The impugned judgment and order dated 29/05/2017 passed by the learned 3rd Additional Sessions Judge, Nadiad in Sessions Case No. 14 of 2015 is hereby set aside qua present appellant - original accused No. 1. The appellant - original accused No. 1 is acquitted from the charge for which he is convicted and sentenced by giving benefit of doubt. The appellant is out on bail. He is not required to surrender to custody except he is required so in any other case. His bail bond shall stand cancelled. Registry to return the R&P, if received, to the trial Court.