Pavan @ Pankaj Gupta vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

The appellant has preferred this appeal against the judgment dated 17.6.2010 passed by the Additional Sessions Judge Nowgaon, District Chhatarpur in S.T. No. 84/2009, whereby the appellant was convicted for the offences punishable u/s 336 of IPC and Sections 25(1-B)(a) and 27 of the Arms Act and sentenced for three months'' S.I. and one year R.I. with a fine of Rs. 200/-and three years'' R.I. with a fine of Rs. 300/-respectively. In default of payment of fine, he was to undergo for 1 month''s and 11/2 month''s imprisonment respectively in addition. Prosecution''s case in short is that on 16.12.2008 at about 1:30 p.m. in the afternoon, the complainant Suresh Tiwari was going to his house from his shop situated near Kalimata Mandir, Nowgaon District Chhatarpur, the appellant met him on the way and abused the complainant with obscene words and thereafter, he threatened the complainant. The appellant drew a country made pistol from his waist and fired from that gun in the air and also threatened the complainant that he would kill the complainant next time. The complainant Suresh Tiwari submitted a written complaint Ex. P/1 to S.H.O. Nowgaon by which a case was registered by FIR Ex. P/2. It was found that due to fire done by the appellant in the air, one Pooja Raikwar (PW-9) aged about 12 years sustained some injuries in her left leg. The appellant was arrested and a firearm was seized from him with the help of his confession u/s 27 of the Evidence Act. The alleged firearm was sent for its examination to the Reserve Inspector, Reserve Police Lines, Chhatarpur. Constable armor Ravindra Sharma (PW-4) examined the gun and he found that it was a workable firearm and one bullet of 0.305 bore was also found live, which was sent with the country made pistol. A sanction for prosecution was received from the District Magistrate, Chhatarpur and thereafter, a charge sheet was filed before the J.M.F.C. Chhatarpur, who committed the case to the Sessions Court, Chhatarpur and ultimately, it was transferred to the Additional Sessions Judge Nowgaon, District Chhatarpur.

The appellant abjured his guilt. He did not take any specific plea but he has stated before the trial Court that the complainant Suresh Tiwari had a criminal background and since the appellant had lodged an FIR against the complainant, a false case was created against the appellant because he was the witness in many cases against the complainant from the prosecution''s side. In defence, one Mahipal Bundela (DW-1) was examined to the point that on the date of incident, the appellant was driving the vehicle of Mahipal and they went to Khajuraho by that vehicle and therefore, he was not present at the spot, at the time of the incident.

After considering the evidence adduced by both the parties, the learned Additional Sessions Judge, Chhatarpur acquitted the appellant for the offences punishable under Sections 294, 307, 324 and 506B of IPC but convicted him for the offence punishable u/s 336 of IPC and Sections 25(1-B)(a) and 27 of Arms Act and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

Learned counsel for the appellant has submitted that there was no charge of Section 336 of IPC and therefore, the appellant could not be convicted for that offence in absence of any charge. Actually, the appellant was the witness in many cases lodged against the complainant therefore, he was falsely implicated in the matter. Hence, no offence is made out against the appellant. Under such circumstances, it is prayed that the appellant may be acquitted from all the charges levelled against him. In alternate, it is submitted that the appellant is in custody since 6.3.2012 and therefore, his jail sentence may be reduced to the period, which he has already undergone in the custody.

On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and therefore, no interference is required in the judgment passed by the trial Court.

After considering the submissions made by learned counsel for the parties and looking at the evidence adduced by both the parties, it is to be considered as to whether the appellant could be convicted for the offence punishable u/s 336 of IPC? whether he kept the alleged firearm without any licence with him? whether he used that firearm in contravention of Section 5 of the Arms Act; and whether the sentence directed against the appellant can be reduced.

It is apparent that the trial Court did not frame the charge of offence punishable u/s 336 of IPC. Initially, the charges of offences punishable under Sections 307 and 324 of IPC were framed but the appellant was acquitted from those charges and convicted for the offence punishable u/s 336 of IPC only. According to the FIR Ex. P/1, it was very much clear from the beginning that there was an allegation against the appellant that he fired from the gun in the air and therefore, no charges of offences punishable u/s 307 or 324 of IPC could be framed or in alternate charge of offence punishable u/s 336 of IPC should have been framed, but no charges of offences punishable u/s 337 or 336 of IPC were framed by the trial Court. As per the provision of Section 222 of Cr.P.C., a person can be convicted for any inferior offence of the same nature, if charges of superior offence of same nature are framed. In the present case, the charges of offences punishable under Sections 307 and 324 of IPC were the charges for causing the hurt with intention, whereas in the offence punishable u/s 336 of IPC the ingredient of intention is missing. The offence punishable u/s 336 of IPC is the penal provision for the rash and negligent act done by the accused and therefore, looking at the difference in the various ingredients of the said offences, it cannot be said that the offence punishable u/s 336 of IPC was the inferior offence of the same nature as of Sections 307 or 324 of IPC. Under such circumstances, in absence of the charge, the appellant could not be convicted for the offence punishable u/s 336 of IPC. Consequently, the conviction directed by the trial Court for the offence punishable u/s 336 of IPC appears to be bad in law.

So far as the offence punishable u/s 25(1-B)(a) of the Arms Act is concerned, it can be considered in two parts. Firstly, when the appellant was found in possession of a firearm at the time of incident and secondly, when the appellant was found in possession of a firearm at the time of seizure. It is apparent that the appellant could not produce any licence of the alleged firearm and also the firearm shown in the case is not a licensed gun. The witnesses Suresh Tiwari (PW-1), Sandeep Pathak (PW-3), Pooja Raikwar (PW-9) and Lokendra Singh (PW-10) were examined as eyewitnesses, wherein the witness Lokendra Singh turned hostile. Similarly, the witness Pooja also turned hostile. It was the case of the prosecution that due to that firearm being discharged by the appellant in the air and one pellet hit the wall and then on the left leg of Pooja and she sustained the injury due to that pellet. Dr. Pandey (PW-2) has proved his MLC report Ex. P/5 relating to the examination of the witness Pooja. He has stated that the victim Pooja was complaining about pain in her left calf but no visible injury was found. Dr. Pandey could not say that only injury was found on Pooja''s body, which could be caused by a pellet. At present, Pooja turned hostile and she did not claim that she sustained any injury due to the discharge of the firearm done by the appellant. Under such circumstances, only the testimony of Suresh Tiwari and Sandeep Pathak remains to be assessed.

Suresh Tiwari and Sandeep Pathak have stated that Sandeep was talking with Lokendra at the time of incident then, the appellant threatened Suresh Tiwari and fired upon him but Suresh Tiwari turned to his right and therefore, no injury was caused to Suresh Tiwari and bullet hit in the wall and rebounded and hit the leg of Pooja Raikwar. The evidence given by Suresh Tiwari and Sandeep Pathak appears to be contradictory to the FIR Ex. P/1. In the FIR Ex. P/1, which was a written report submitted by the Suresh Tiwari before the Police Station, Nowgaon, wherein it is mentioned that the appellant did a fire in the air but it is nowhere mentioned in the FIR that the appellant aimed upon the victim Suresh Tiwari with the gun. Under such circumstances, the learned Additional Sessions Judge disbelieved this witness and therefore, the appellant was acquitted from the charge of offence punishable u/s 307 of IPC. Under such circumstances, it appears that the witnesses had stated a falsehood before the trial Court. If the statement given in the FIR is to be considered as such then, the entire story narrated by the complainant in the FIR appears to be unnatural. According to the FIR, the quarrel started in a sudden manner and the appellant made a threat to the complainant but he did not say anything else to the complainant that would state the objective of the threat therefore, there was no need to the appellant to give any threat to the complainant. If he was interested in causing any harm to the complainant then, he could have fired the gun while aiming it towards the complainant but as per the allegation, the appellant fired in the air. There is no criminal past shown against the appellant from which it could be said that he was a person having a criminal background and therefore he was causing a terror among the public. On the other hand, the complainant Suresh Tiwari had admitted in para 11 that 18 months prior to the incident, he had assaulted the appellant Pavan but no FIR was lodged in the matter. Under such circumstances, where the appellant had not made any complaint of assault done by the complainant in last 11/2 years, then what was the need for him to make such a scene before the public against the complainant. The complainant, who has a significant criminal background could not have been threatened in such a manner, otherwise by such an activity the appellant had invited a danger to his own life. A prudent man would not act in such a manner as he did not cause any harm to the complainant but invited his displeasure and a danger to his own life in future.

Also the police could not recover the remains of the bullet fired from the gun from the spot. It is stated that some pellets struck on the wall but it is nowhere mentioned in the spot map Ex. P/3 that any wall had any sign indicating that the pellets had struck on that wall. No pellet could be seized from the spot and therefore, there is no corroboration to the evidence of the complainant Suresh Tiwari and his witness Sandeep Pathak. Sandeep Pathak has accepted that he has a very good relationship with the complainant. Under such circumstances, when the complainant Suresh Tiwari and Sandeep Pathak changed their evidence materially, no remains of the fire from the gun were found from the spot and no wall was found to be damaged and similarly there was no reason as to why the appellant would commit such an act with the complainant, who had a criminal past, also the eyewitness Lokendra and Pooja were turned hostile and they did not support the evidence of the complainant, therefore it is highly doubtful that such incident actully took place with the complainant or the appellant had a gun at the time of the incident or he used that gun at the time of the incident.

Under such circumstances, the appellant cannot be convicted for the offence punishable u/s 25(1-B)(a) of the Arms Act for having a gun at the time of incident. Similarly, he cannot be convicted for the offence punishable u/s 27 of the Arms Act because it is doubtful that the accused used any gun in contravention to the Provisions of Section 5 of the Arms Act. If any doubt arises then, benefit of doubt is to be given to the accused and therefore, the appellant cannot be convicted for the offences punishable under Sections 25(1-B)(a) and 27 of the Arms Act for the possession of the gun at the time of incident. Learned Additional Sessions Judge has erred in convicting and sentencing the appellant for such offences.

Second part of the offence punishable u/s 25(1-B)(a) of the Arms Act may be constituted when the gun was seized from the appellant. In this connection, it would be proper to mention that the appellant had not challenged the sanction for prosecution granted by the District Magistrate, Chhatarpur vide order Ex. P/10 but if, that order is perused then, it would be apparent that the various particulars of this case including the crime number, name of the appellant and the property seized from the appellant were filled up in the blank columns in that cyclostyled order and therefore by such cyclostyled order, it cannot be said that the learned District Magistrate has used his discretion in a judicial manner after perusal of the arms and documents mentioned in the cyclostyled description of the order. Under such circumstances, a sanction given by the District Magistrate, Chhatarpur appears to be given in a prototyped manner and it is not a valid sanction in the eye of law. Under such circumstances, the appellant cannot be convicted for the offence punishable u/s 25(1-B)(a) of the Arms Act.

The constable armor Ravindra Sharma (PW-4) has submitted that he examined the gun and found that it was a working firearm but in the cross-examination of the witness Ravindra Sharma, nothing has been brought, by which his opinion can be ignored, therefore, it is true that the article seized was a firearm. In this connection, a report Ex. P/14 of the Forensic Science Laboratory, Sagar has also been received from which it is clear that the seized item was a firearm. However, it is to be seen that whether the alleged firearm was seized from the appellant.

In this connection, Sub-inspector, Jaywant Singh Kadodiya (PW-7) has stated that a memo Ex. P/5 u/s 27 of the Evidence Act was recorded of the appellant before the witness Sandeep Pathak and Lokendra Singh, in which the appellant had accepted that he kept the firearm in his house, which was hired by him on the rent and thereafter, that firearm was seized from the appellant by the memo Ex. P/6. It is highly surprising that for recording the memo u/s 27 of the Evidence Act, Shri Kakodiya did not take any independent witness in the case. Sandeep as well as Lokendra were the eyewitnesses in the case and friends of the complainant and therefore, they were the interested witnesses. Shri Kakodiya could not tell the reason as to why he had not taken an independent witness, out of these witnesses, Lokendra Singh turned hostile, whereas Sandeep Pathak has also turned partly hostile. Sandeep Pathak had stated that in the evening of the incident, the police came to his shop and they took him to the rented room, where the appellant gave one Katta and one bullet to the police. According to the memo Ex. P/5 u/s 27 of the Evidence Act and seizure Ex. P/6, it is apparent that the seizure took place on 17.12.1008 at about 10:00 a.m., whereas the incident took place on 16.12.2008, therefore, Sandeep Pathak did not corroborate the seizure done on the next day of the incident. Sandeep Pathak had also admitted that the appellant had a house of his own, which was a big in the size and his father was running a grocery shop in that house and therefore, there was no need for the appellant to have a rented house. No any document is shown by the police by which it can be established that the appellant took any house on the rent. In the memo Ex. P/5 the address of that house is nowhere mentioned by the concerned investigating officer, even in the seizure memo Ex. P/6. It is nowhere mentioned that from whose house the alleged firearm was seized and whether the appellant was a tenant of that particular person. No statement of such landlord was recorded that he let out the house to the appellant. Under such circumstances, where the investigating officer did not bring any independent witness, it is doubtful that the appellant took any house on rent, whereas the interested witness Lokendra Singh has turned hostile and also the witness Sandeep Pathak did not confirm the seizure of the firearm to the effect that it was done on the next day of the incident. Hence, the testimony of the investigation officer cannot be believed beyond doubt that he seized the alleged firearm from the appellant. Since the complainant had a criminal background therefore, it was possible for the complainant to put an empty cartridge at the spot or to provide the firearm to the investigation officer, whereas the seizure of the firearm is not proved beyond doubt against the appellant. Under such circumstances, the appellant cannot be convicted for the offence punishable u/s 25(1-B)(a) of the Arms Act, when the seizure was not proved beyond doubt against him. Learned Additional Sessions Judge has erred in convicting the appellant for that offence.

On the basis of aforesaid discussion, it would be apparent that the appellant cannot be convicted for the offence punishable u/s 336 of IPC for want of the charge. Similarly, he cannot be convicted for the offences punishable under Sections 25(1-B)(a) and 27 of the Arms Act because the entire prosecution story is doubtful. It is not proved beyond doubt that the appellant had a firearm with him or he used it, in contravention to the Provisions of Section 5 of the Arms Act also. The prosecution sanction u/s 30 of the Arms Act given by the District Magistrate, Chhatarpur is not found to be judicious and therefore, it is not a valid sanction in the eye of law. Under such circumstances, the appellant cannot be convicted for such offences for which he was convicted by the trial Court. Hence, the appeal filed by the appellant appears to be acceptable and it is hereby accepted. The conviction as well as the sentence directed by the trial Court for the offence punishable u/s 336 of IPC and the Sections 25(1-B)(a) and 27 of the Arms Act are hereby set aside. The appellant is acquitted from all the charges. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

The appellant is in custody and therefore, office is directed to issue a release warrant forthwith so that the appellant may be released as early as possible. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.