Khilan Singh vs State of M.P.

S.S. Dwivedi, J.—The applicant has preferred this revision u/s 397 of Code of Criminal Procedure being aggrieved by the judgment dated 31-7-2003 passed by the Sessions Judge, Vidisha, in Criminal Appeal No. 110/2002, whereby affirmed the judgment of conviction and sentence dated 21-11-2002 passed by the JMFC, Vidisha, in Criminal Case No. 149/2002, wherein the applicant has been found guilty u/s 25(1)(a) of the Arms Act and sentenced to one year RI with a fine of Rs. 500/- and in default of payment of fine, further ordered to suffer imprisonment for one month.

The brief facts of the case are that on 21-11-95 P.P. Gautam, Sub-Inspector of Police posted at Police Station. Dehat, Vidisha, received secret information that the applicant was standing in suspicious position near Kua Khedi Barrier. On this information, P.P. Gautam, Sub-Inspector together with other police force reached at Kua Khedi Barrier, caught the applicant/accused, made a search before the independent witness and seized a 32 bore country-made pistol with there cartridges as per seizure memo (Exh. P-1), which was found in the possession of the applicant. Thereafter, he (P.P. Gautam) returned back to the Police Station and registered a case u/s 25 of the Arms Act against the applicant. Thereafter, the applicant was arrested, the seized firearm was sent for mechanical examination to the DRP line Vidisha and the sanction to prosecute the applicant was obtained from the District Magistrate, Vidisha, as per the provisions of Section 39 of the Arms Act and after investigation, the charge-sheet was filed.

The applicant/accused abjured the guilt and his defence is of false implication. The learned Trial Court after due appreciation of the entire evidence on record by impugned judgment dated 21st November, 2002 held the applicant/accused guilty for the offence punishable u/s 25(1)(a) of the Arms Act and sentenced him as stated hereinabove, aggrieved by which, the applicant has preferred Criminal Appeal No. 110/2002 which is decided by the Sessions Judge, Vidisha by judgment dated 31-7-2003, by which the appeal was dismissed and judgment of conviction and sentence passed by the Trial Court was affirmed, hence, this revision petition on behalf of the applicant.

I have heard the learned Counsel for the applicant as well as learned Public Prosecutor for the State and perused the record.

It is submitted on behalf of the applicant that the independent Panch witnesses Jitendra Pachori (P.W. 1) and Harisingh Yadav (P.W. 2) have not supported the fact of seizure of concerning firearm from the possession of the applicant. Similarly, on perusal of the statement of P.P. Gautam (P.W. 6), the Seizing Officer, it is not clear that whatever firearm had been seized was sealed properly and signatures of the independent Panch witnesses were obtained on the outer cover of the sealed packet of the concerning firearm. This is further got support by the statement of Jaykaran Sharma (P.W. 4), who was posted in the DRP line and examined the seized firearm. He has also not stated that whatever firearm had been seized was sent to him in a sealed cover packet and after breaking the seal, he had examined the aforesaid firearm. In such circumstances, whatever article had been seized, was sent for examination to Jaykaran Sharma is also not proved by the prosecution. It is further submitted that P.P. Gautam (P.W. 6) is the Seizing Officer and he himself has conducted the investigation, whereas Hon''ble Apex Court in a decision of Megha Singh v. State of Haryana AIR 1995 SC 2239, clearly held that Seizing Officer of the firearm cannot be the Investigating Officer of the crime concerned and on this ground, the applicant is entitled for acquittal. Therefore, on the aforesaid grounds, prayed for setting aside the impugned judgment of conviction and sentence passed by the Courts below.

The learned Public Prosecutor for the State supported the impugned judgment and prayed for dismissal of the revision petition.

To bring home the charge as levelled against the application, the prosecution has fully rested upon the statement of P.P. Gautam (P.W. 6), the Seizing Officer, who stated that from the possession of the applicant a 32 bore revolver with three cartridges has been seized as per the seizure memo (Exh. P-1). Unfortunately, the independent Panch witnesses namely, Jitendra Pachori (P.W. 1) and Harisingh Yadav (P.W. 2) have not supported that any firearm had been seized from the possession of the applicant. It is further pertinent to note that in the statement of P.P. Gautam (P.W. 6) he has not stated that whatever firearm and cartridges had been seized from the applicant, were properly sealed in some cover and on the outer cover of the sealed packet signatures of the independent Panch witnesses were obtained. In such circumstances, it is also not proved beyond reasonable doubt that whatever firearm and cartridges had been alleged to be seized from the possession of the applicant were sent for examination to Jaykaran Sharma (P.W. 4), the Head Armourer of DRP line concerned, therefore, it cannot be said that the examination report (Exh. P-3) proved by Jaykaran Sharma is of the same article which had been seized from the possession of the applicant.

It is also pertinent to note that P.P. Gautam (P.W. 6) is the Seizing Officer and he himself has registered the case and also recorded the statements of the witnesses u/s 161 of Code of Criminal Procedure, meaning thereby that he himself has investigated the crime concerned and if that being so, the whole investigation by the Seizing Officer is found to be illegal, for which the reliance can be placed on the decision of the Apex Court reported in Megha Singh (supra), therein the Hon''ble Apex Court in Para 4 held as under:

After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P. Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in the case. P.W. 3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal First Information Report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses u/s 161, Code of Criminal Procedure such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

The same view has been taken by this Court in Mahesh v. State of Madhya Pradesh 2009 (3) MPJR 246.

In view of the aforesaid discrepancies in the prosecution case, the conviction of the applicant for the offence punishable u/s 25(1)(a) of the Arms Act appears to be erroneous and liable to be set aside.

Resultantly, the revision petition succeeds and is hereby allowed. The impugned judgments of conviction and sentence passed by the Courts below are set aside and the applicant is acquitted from the charge u/s 25(1)(a)of the Arms Act. Fine amount, if any deposited by him, be refunded to him.