Lal Bahadur vs State of Madhya Pradesh

N.K. Gupta, J.—Since both the appeals, arose from the common judgment and therefore, they are decided by this common judgment. The appellants have preferred this appeal against the judgment dated 9.8.1996 passed by the learned First Additional Sessions Judge, Chhatarpur in S.T. No. 41/1995, whereby the appellants were convicted and sentenced as under:-

Prosecution''s story, in short, is that, on 27.12.1994, an information was received to the officers of Police Station Jujharnagar, District Chhatarpur that six unknown culprits were gathered in the field of Ramnath Aheer, situated at village Kheri, to make a plan for dacoity. Shri Puranik, SHO, Police Station Jujharnagar went with other officers and staff along with two independent witnesses and surrounded the culprits. The culprits were directed to surrender and therefore, the appellants did not fire from their weapons. The appellants and other co-accused persons were arrested by the police and various fire arms were recovered from them. A hand-made pistol of 315 bore and cartridges were found with the appellant Lal Bahadur, whereas a hand-made pistol of 12 bore with some cartridges were found from the appellant Kalidin. Seized arms were sent for their examination to the Reserve Inspector, Police Lines, Chhatarpur. A prosecution sanction was also obtained from the District Magistrate. After due investigation, a charge-sheet was filed before the JMFC, Laundi, who committed the case to the Sessions Court, Chhatarpur and ultimately, it was transferred to the First Additional Sessions Judge, Chhatarpur.

The appellants abjured their guilt. They did not take any specific plea but, they have stated that they were attending a Pooja of a particular temple and on call of one constable, the appellants went to the Police Station and thereafter, they were held by the police. In defence, Hiralal (D.W.1) and Raja Bhaiya (D.W.2) were examined.

The learned Additional Sessions Judge, after considering the evidence adduced by the parties, convicted the appellants for the offence punishable u/s 399/402 of IPC as well as for the offence punishable u/s 25 read with section 27 of the Arms Act and sentenced them as mentioned above.

During the pendency of the appeal, the appellant Raghuntha has expired and therefore, his name was deleted from the cause title of Criminal Appeal No. 1548/1996. Therefore, at present, appeals are to be considered only for the appellants Kalidin and Lal Bahadur.

I have heard the learned counsel for the parties.

The learned counsel for the appellants have submitted that no offence was committed by the appellants. They were not found at the spot but, they were falsely implicated in the matter. They could not be convicted for the offence punishable under sections 399 or 402 of IPC. Also, the District Magistrate has given a sanction on a cyclostyled format and therefore, it was not given according to the law. Without any valid sanction, the police could not prosecute the appellants for the offence punishable u/s 25 of the Arms Act. There was no evidence that the appellants used the fire arms for any offence, therefore, they could not be convicted for the offence punishable u/s 27 of the Arms Act. In the alternate, it is submitted that the appellants remained in the custody for more than 20 months and therefore, they may not be sent to the jail again.

On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and therefore, there is no basis by which any interference can be done in the present appeal.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be accepted? And whether the sentence directed by the trial Court can be reduced?

The appellants are sentenced for the offence punishable u/s 399/402 of IPC and for the offence punishable u/s 25 of the Arms Act for one year''s rigorous imprisonment. All the sentences were to run concurrently. The appellants remained in the custody for 20 months, therefore, sentences for the aforesaid offences are already executed and therefore, at present, the main matter of discussion in the appeals is for the offence punishable u/s 27 of the Arms Act.

If a person keeps any fire arm or cartridges without any licence then, he is liable for the offence punishable u/s 25 of the Arms Act but, if he uses that fire arm in an incident illegally then, he shall be responsible for the offence punishable u/s 27 of the Arms Act. In the present case, no one has alleged that at the time of seizure of the fire arms, when the appellants were challenged by the police, they did any fire from the fire arms. On the contrary, it is told that they surrendered without any resistance and therefore, it cannot be said that they used the fire arms for any illegal purpose. Consequently, no offence punishable u/s 27 of the Arms Act is constituted against the appellants. The learned Additional Sessions Judge has erred in convicting the appellants for the offence punishable u/s 27 of the Arms Act.

To prove the incident, Head Constable Lakhan Lal (P.W.2), ASI Shri Tomar (P.W.3), Mardan Singh (P.W.5), Constable Ram Prasad (P.W.6), Head Constable Chhittu Lal Patel (P.W.7) were examined, who told about the entire incident. It is very strange that Shri Puranik, SHO, Police Station Jujharnagar, who conducted the entire raid was not at all examined before the trial Court and therefore, the seizure done from the appellants could not be proved. The independent witness Mardan Singh has stated that the entire police force was parted with 4 parts and raid was done by the police. Constable Ram Prasad has stated that he was in the party of Head Constable Chhittu Lal Patel, whereas, Head Constable Chhittu Lal Patel has denied the fact that he was leading a party. On the contrary, he told that he was with Shri Puranik, SHO.

Head Constable Lakhan Lal has stated that he was in the party of Shri Naqvi, SO, Police Station Gourihar. ASI Shri Tomar also states that he was leading a party and the independent witnesses were there with him. Under such circumstances, there is a material contradiction in the evidence given by these persons that whether 3 groups were formed or 4 groups were formed of the entire police force. Such contradictions can arose only in a condition where, each of the witness is telling about the incident, according to his own wisdom as if no such raid took place.

It is told by all the witnesses that the culprits were talking to commit a Dacoity in the house of some Advocate at village Kheri. On the contrary, it was admitted by the independent witness Mardan Singh that he could not hear the talks took place between the culprits because when SHO Shri Puranik reached on a cliff, he challenged the culprits and therefore, it is apparent that before anybody could hear the talks between the culprits, they were challenged and arrested. Under such circumstances, it cannot be said that the culprits were collected to make a plan of dacoity.

The witnesses, specially a police official can be believed, if he recovers any property from anyone or he becomes a witness to any document or he deposes himself as an eye witness, otherwise every police official has to do so many investigations on each and every day, so that he cannot remember the entire matter about a particular incident. In the present case, Head Constable Lakhan Lal, ASI Shri Tomar, Constable Ram Prasad and Head Constable Chhittu Lal Patel neither put their signatures on any document of seizure nor their case diary statements were recorded by Shri Puranik or any other Investigation officer and therefore, they are giving the version of the incident according to their own wisdom. Under such circumstances, when Shri Puranik was not examined and Mardan Singh (P.W.5) has stated that nothing was recovered from the appellant Kalidin then, it appears that he put his signatures on various seizure memos without reading those documents. Mardan Singh has accepted that he is a patent witness of the police and he is a witness in several cases pending before Laundi and Chhatarpur Courts. Under such circumstances, it appears that the police did not take independent witnesses in the case. The testimony of Mardan Singh cannot be believed therefore, no seizure is proved from the appellants, beyond doubt.

In this respect, the testimony of Hiralal (D.W.1) and Raja Bhaiya (D.W.2) cannot be brushed aside. They have stated that the appellants were called from the temple and thereafter, they were arrested. It is no where clear that from where the police obtained the fire arms. There is no criminal record shown of the appellants that they had done any crime in the past and therefore, it is not expected from an innocent villager that he would initiate his first crime by a dacoity. It is easy for the police to show the seizure from 4-5 persons of various fire arms and to say that they were collected to commit a dacoity. Under such circumstances, where Shri Puranik, SHO, who recovered the fire arms was not examined, Mardan Singh was a patent witness of the police, no independent witness was taken by the police, whereas, police officials cannot be believed about that incident, it is not proved beyond doubt that the appellants were collected along with other accused persons to plan a dacoity. They could not be convicted for the offence punishable u/s 399 or 402 of IPC. The learned Additional Sessions Judge has erred in convicting the appellants for the offence punishable u/s 399 read with section 402 of the IPC.

As discussed above, it is not proved beyond doubt that the appellants were gathered in a field to plan a dacoity and it is also not proved beyond doubt that any fire arm was recovered from any of the appellants. Under such circumstances, they cannot be convicted for the offence punishable u/s 25 of the Arms Act. Moreover, the objection taken by the learned counsel for the appellants about prosecution sanction appears to be correct. If prosecution sanction, Ex. P/5 is perused then, it would be clear that it is a cyclostyled form in which some particulars were filled by the clerk of the District Magistrate. District Magistrate had not passed an order in a judicious manner. It appears that a cyclostyled order was placed before the District Magistrate and the then, District Magistrate put his signature on that cyclostyled order and therefore, Ex. P/5 which was a sanction for prosecution cannot be accepted as a valid sanction and therefore, the police could not prosecute the appellants for the offence punishable u/s 25 of the Arms Act in want of proper sanction. Hence, on this reason, the appellants could not be convicted for the offence punishable u/s 25 of the Arms Act.

On the basis of the aforesaid discussion, it is apparent that the appellants neither can be convicted for the offence punishable u/s 25 or 27 of the Arms Act nor they can be convicted for the offence punishable u/s 399 read with section 402 of IPC. They even cannot be convicted for any inferior offence of the similar nature. Under such circumstances, the appeal filed by the appellants appears to be acceptable and consequently, it is hereby accepted. Conviction as well as sentence directed against the appellants for the offence punishable u/s 399 read with section 402 of IPC and section 25/27 of the Arms Act is hereby set aside. They are acquitted from all the charges appended against them. They would be entitled to get the fine amount back, if they have deposited before the trial Court.

Presence of the appellants is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court along with its record for information and compliance.