Jitendra Soni vs State of M.P.

Anil Sharma, J.—This judgment shall govern the disposal of Criminal Appeal No. 129/2006 and Criminal Appeal No. 140/2006 arising out of a common judgment, dated 17-1-2006 passed by learned Special Judge (Dacoity), Datia. These appeals have been filed by the appellants u/s 374 of Code of Criminal Procedure, 1973 against a common judgment of conviction and sentence., dated 17-1-2006 passed in S.S.T. No. 14/04 by learned Special Judge (Dacoity), Datia, whereby the appellants have been convicted for the offence u/s 402 of IPC read with Section 13 of Madhya Pradesh Dacoity Vyapharan Prabhavit Kshetra Adhiniyam (for brevity ''MPDVPK Act'') and u/s 25(1)(1-B)(a) of Arms Act and they have been sentenced to undergo 3 years'' RI with fine of Rs. 1000/- and 1 year''s RI with fine of Rs. 500/- respectively, each with default stipulation.

The brief fact: of the case are that on 26-3-2004, Station House Officer U.S. Tomar, Police Station, Indargarh, District Datia, has received an information through informer that some anti-social elements are making preparation of committing dacoity in the house of Ramjisharan. Thereafter, two teams have been formed and police party has arrested four persons including the appellants and two persons have succeeded in escape from the spot. Appellants were armed with firearm. After registering the FIR, challan has been filed and learned Trial Court after trial of the case has convicted the appellants as mentioned in Paragraph 2 of this judgment. But learned Trial Court, vide impugned judgment has acquitted the appellants from the offence u/s 399 of IPC and u/s 27 of Arms Act.

Feeling aggrieved by the impugned judgment of conviction and sentence, appellants have filed these appeals on the ground that learned Trial Court is not justified in convicting the appellants on the sole and uncorroborated testimony of Investigating Officer, U.S. Tomar. Learned Trial Court is further not justified in convicting the appellants as the seized arms and ammunition have not been produced at the time of trial.

The moot question for consideration in these appeals is, whether learned Trial Court is justified in convicting the appellants by the impugned judgment.

Learned Counsel for the appellants have submitted that the statement of Police Officers regarding conversation between the accused persons for making preparation to commit dacoity in the house of Ramji Patsariya on some earlier dispute of Holi Festival has not been confirmed by Ramji Patsariya (P.W. 6). The independent witnesses Siyasharan (P.W. 2) and Ashique Ali (P.W. 3), who are the witnesses of whole incident have turned hostile and not supported the prosecution story.

Learned Counsel for the appellants have submitted that the appellants have been acquitted from the charge of offence u/s 399 of IPC, which contains the provisions for convicting the accused for the act of making preparation to commit dacoity on the other hand learned Trial Court has convicted the appellants u/s 402 of IPC, which relates to assembling for the purpose of committing dacoity. According to learned Counsel for the appellants, the findings of learned Trial Court are self-contradictory as when the appellants have not been found guilty for making preparation to commit dacoity, their conviction for assembling for the purpose of committing dacoity is not sustainable.

Learned Counsel for the appellants submitted that in support of prosecution story there are only statements of Police Personnel, ASI, Santosh Sharma (P.W. 1), ASI Parmanand Sharma (P.W. 8) and Station House Officer, U.S. Tomar (P.W. 9), who have stated that when they have reached at the spot they have heard the conversation of appellants alongwith other co-accused persons, who were talking about commission of dacoity in the house of Ramjisharan. They have also stated that from appellant (Jitendra Soni) one Lohangi and two live cartridges of 12 bore gun have been seized, vide seizure memo (Exh. P-4) and from appellant (Sujan Singh Parihar) one Katta of 12 bore alongwith three live cartridges have been seized, vide seizure memo (Exh. P-3).

Learned Counsel for the appellants has placed reliance on the decision of Apex Court in the matter of Chaturi Yadav and Others Vs. State of Bihar, in which reversing the judgment of conviction, it has been held that the prosecution evidence merely showing that 8 persons including appellant were found in the school premises, which was quite close to the market at 1 p.m. and that some of them armed with guns, some had cartridges and others ran away, conviction of appellant under Sections 399 and 402 of IPC is not sustainable. Mere fact that these persons were found at 1 p.m., did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object. The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated.

Learned Counsel for the appellants further placed reliance on the decision of Apex Court in the matter of Suleman and Another Vs. State Of Delhi Thr. Secretary, , in which it has been held that the accused persons alleged to have assembled in Dharmshala and were planning to commit dacoity. The conversation amongst the accused alleged to be heard by witness, a Head Constable from outside room of Dharmshala. Non-examination of ASI, who accompanied with said witness at Dharmshala, evidence showing that weapons were kept concealed and there was complete darkness inside room, testimony of witness that he heard accused talking about looting a petrol pump, not truthful, therefore, the conviction under Sections 399 and 402 of IPC is not proper.

Learned Counsel for the appellants submitted that the seized arms were not produced before learned Trial Court, therefore, in absence of identification of arms before the Court, the conviction of appellants is not justifiable. In support of their arguments, he has placed reliance on the decision of this Court in the matter of Kalebabu Vs. State of Madhya Pradesh, in which it has been held that the foundation of offence was based on the notification regarding knife then it was the duty of the prosecution to produce the article seized before the Court to prove that the arm or weapon was contrary to the prescribed size. Men oral statement of the witnesses could not be said to be sufficient as the seizure witness had turned hostile and since the foundation of the offence itself depended on the article, then it was an utmost importance that it ought to be produced before the Trial Court. Appellant has been acquitted from the charges of offence punishable under Sections 25(1-B)(b) and 4 of Arms Act.

Learned Counsel for the appellants further drawn attention of this Court towards the statement of Station House Officer, U.S. Tomar (P.W. 9), who in Paragraph 10 of his cross-examination, has admitted that he is complainant in the case and he is Investigating Officer also. In the present case, he is engaged from the initial stage of receiving information from the informer, investigated the case and filed the challan, which is against the provisions of law, therefore, the appellants are entitled for acquittal. In support of their arguments, he has cited the judgment of this Court in the matter of Chirku @ Lakhanlal Vs. State of M.P., , in which it has been held that the offence of carrying ''Katta'' containing a live cartridge by the accused/appellant, the case based on the testimony of Police Officer not corroborated by independent source, there was discrepancy in the evidence of two Police Officers, SHO should not have himself investigated the offence, when he had arrested the accused, recovered the pistol and has also lodged the FIR and lastly only case-diary of the offence was not sent to the District Magistrate for according sanction, but it was doubtful whether Katta and cartridges were also sent for inspection of the District Magistrate, the offence u/s 25(1-B)(a) of Arms Act held not proved and acquitted the accused. On this point, the other judgments of this Court have been cited in the matter of Khilan Singh Vs. State of M.P., and in matter of Mangilal Lodha Vs. State of M.P.,

No seized article has been produced before the Trial Court at the time of evidence. The Police Officer, who conducted the raid, prepared the seizure memo and lodged the FIR himself has investigated the matter. Finding of learned Trial Court for convicting the appellants for the offence punishable u/s 402 of IPC for assembling for the purpose of committing dacoity, while acquitting them for the charge of Section 399 of IPC, i.e., making preparation to commit dacoity are in themselves contrary and appellants deserve acquittal for the charge of Section 402 of IPC, on the same ground on which he has been acquitted from the charge of Section 399 of IPC. In the result, looking to the material aspects of the matter and marshaling the evidence available on record, I am of the considered view that learned Trial Court is not justified in convicting the appellants, therefore, the appeals filed by the appellants are allowed, setting aside the impugned judgment of conviction and sentence. Appellants are acquitted from the charge of Section 402 of IPC read with Section 13 of MPDVPK Act and u/s 25(1-B)(a) of Arms Act. Appellants are on bail, their bail bonds stand discharged.