Rajesh Dubey vs State of M.P.

Hon. Shri Justice Anil Kumar Sharma

By this judgment, Criminal Appeal No. 483/2006, Criminal Appeal No. 508/2006 and Criminal Appeal No. 519/2006 arising out of judgment dated 01.07.2006 passed in Special Case No. 97/04 by learned Special Judge (Dacoity) Bhind (M.P.) are being disposed of. Appellants have filed these three appeals being aggrieved against judgment dated 01.07.2006 passed in Special Case No. 97/04 by which they have been convicted for the offence punishable u/s 307/34 of IPC read with Section 11/13 of Madhya Pradesh Dacoity Vyapharan Prabhavit Kshetra Adhiniyam (in short "M.P.D.V.P.K. Act) and sentenced to R.I. for seven years and fine Rs. 10000/- each have been imposed upon them. They have further been convicted for the offence punishable u/s 25-(1)(a)(b) of Arms Act read with Section 11/13 of M.P.D.V.P.K. Act three years each and fine of Rs. 1000/- each imposed upon them. They have further been convicted for the offence punishable u/s 27 of Arms Act read with 11/13 of M.P.D.V.P.K. Act and sentenced to under go R.I. for three years and fine of Rs. 1000/- has been imposed upon them.

The brief facts of the case are that on 10.09.2004 at about 6.30 P.M., on an information received from the informer, Station House Officer, Police Station Dehat, Bhind, M.P. J.R. Jumnani (PW-10) alongwith Police Force went to Itawa road, Bhind in search of accused Tinku and other persons. During checking of vehicle, a silver colour vehicle was came from Itawa side. When complainant tried to stop the vehicle, the driver of the vehicle ran away with the vehicle towards byepass. When Station House Officer, J.R. Jumnani tried to catch them in another vehicle, it is alleged that the accused persons fired from the vehicle towards J.R. Jumnani (PW-10). Thereafter, four persons viz. Tinku @ Jitendra, Rajesh Dubey Satendra Singh and Anil Singh @ Guddu were arrested by the Police after surrounding them. Fire arms have been seized. F.I.R. was registered. After seizure of weapons from the accused persons challan has been filed before the learned Special Court.

Learned Special Judge after trial of the appellants for the offence punishable u/s 307/34 read with Section 11/13 of M.P.D.V.P.K. Act and Section 25-(1)(a)(b) and Section 27 of Arms Act read with Section 11/13 of M.P.D.V.P.K. Act acquitted Anil Singh @ Guddu and convicted the appellants for the offence framed against them and convicted and sentenced them as mentioned in paragraph 2 of the judgment.

Being aggrieved by the impugned judgment, these three appeals have been filed by the appellants on the ground that learned trial Court is not justified in convicting them on the basis of over looking the contradictory statements of Police Officers and over looking the fact that independent witnesses of seizure have turned hostile. Learned trial Court is not justified in convicting them inspite of the fact that none of the seized weapons have been produced before the Court and there is no ballistic expert report regarding seized weapons.

The main question for consideration in these appeals are that whether learned trial Court is justified in convicting the appellants for the charges framed against them by the impugned judgment.

Learned Counsel for the appellants have drawn attention towards the statements of Inspector Sanjeev Muley (PW-6), Inspector K.R. Sijoria (PW-7) and Inspector J.R. Jumnani (PW-10) and submitted that the statements of these three witnesses are contradictory on several important points suggesting that appellants have been falsely implicated in the case.

Learned Counsel for the appellants have drawn attention towards the statements of inspector Sanjeev Muley (PW-6) who is inspector of S.T.F. Bhopal, who has stated that when he contacted the Superintendent of Police, he was informed that Tinku @ Jitendra Tomar is expected to come from Itawa towards Bhind. He himself, Town Inspector Sijoria alongwith team and Town Inspector, Jumnani alongwith his team saw a silver colour Scorpio jeep coming from Itawa at about 5.30 P.M. When Town Inspector, K.R. Sijoria tried to stop the vehicle, he did not stop the vehicle. Thereafter, he himself and Town Inspector Sijoria informed the situation to Town Inspector Jumnani who put the barrier down and tried to stop the vehicle Scorpio but driver took the vehicle towards back side of rest house and vehicle was chased by Town Inspector Jumnani and Sijoria and fire has been made on Town Inspector Jumnani, thereafter, force caught the four persons (accused) from the vehicle.

Learned Counsel for the appellants has submitted that Town Inspector K.R. Sijoria (PW-7), who has stated that when he and Town Inspector Jumnani chased the Scorpio vehicle in the Government vehicle, 3-4 fire have been made from Scorpio vehicle and, thereafter, accused tried to get down from the vehicle and tried to escape and they have been caught after chasing by the Police force. Thereafter, according to K.R. Sijoria (PW-7), accused persons tried to escape after get down from the vehicle. On the other hand, according to J.R. Jumnani (PW-10) on receiving information he went to Itawa Chunginakka where he himself and Town Inspector Kotwali K.R. Sijoria checking the vehicle in two groups of parties at about 5.30 P.M., but golden colour Scorpio vehicle came from Itawa side. He has further stated that when he tried to stop the Scorpio vehicle, the driver speedly took the vehicle towards Gwalior byepass road near M.J.S. College. Fire has been made upon them by persons trying to escape from the Scorpio vehicle. When he get down from his vehicle, fire has been made on him. Thereafter, he himself and Town Inspector Kotwali Sijoria also fired on the Scorpio vehicle in self defence and, thereafter, caught the accused after surrounding them.

Learned Counsel for the appellants has submitted that all the three Inspectors have stated that fire arms (katta, pistol) have been seized and cartridges have been seized from the appellants but it has been admitted by J.R. Jumnai (PW-10) in paragraph 34 of his cross examination that he has not mentioned sealing of weapons and fire arms from the spot in the seizure memo of Exhibits 9, 10 and 11.

Learned Counsel for the appellants have submitted that from Tinku @ Jitendra Tomar, pistol, mobile, cartridges have been seized by seizure memo Exhibit P-33 at 6.40 P.M. While, at 6.45 P.M. in his arrest memo Exhibit P-24 after preparation of seizure memo Exhibit P-23 again same property had been seized in the possession of Tinku Tomar in arrest memo Exhibit P-24. Similarly, from Rajesh Dubey one mouser and cartridges have been seized by seizure memo Exhibit P-9 at 19.10. P.M. but again in his arrest memo prepared at 19.15 P.M. some weapons have been shown in the possession of Rajesh Dubey.

It is further submitted by the Learned Counsel for the appellants that looking to the admission of J.R. Jumnani (PW-10) regarding no mention of sealing of weapons at the spot in the seizure memo. Further, no ballistic expert report regarding the fire made from the seized weapons coupled with contradictory statements of three Inspectors regarding from where the force started after making three groups of parties to check the vehicle in which Tinku @ Jitendra Tomar was travelling according to information. Further, contradiction regarding alleged fire made by the appellants from inside the vehicle or after getting down from the vehicle, the whole of the prosecution is doubtful and all these circumstances have been shown appellants have been falsely implicated.

Learned Counsel for the appellants have submitted that seized weapons have not been sealed on the spot. Further, there is no mark of any identity regarding which weapons have been seized from which accused, appellants cannot be convicted for the offence under Sections 27 of the Arms Act. He has cited the judgment of the Hon''ble Apex Court in support of his argument passed in the matter of Jasbir Singh Vs. State of Punjab, , in which it has been held that Pistol and cartridges recovered not having any distinctive mark and not sealed after seizure, the identity of weapon and cartridges seized and that which were produced before the Court does not establish by prosecution, therefore, conviction cannot be sustained.

Learned Counsel for the appellants has further submitted that seized weapons have not been produced before the Court, therefore, appellants cannot be convicted for the offence punishable u/s 27 of Arms Act. He has also cited a judgment of Hon''ble Apex Court in the matter of Baijnath Singh Vs. State of M.P., 1998 (3) Cri 161, in which it has been held that Recovered weapon not produced in Court during trial which was fatal to the prosecution case, therefore, conviction could not be sustained.

Learned Counsel for the appellants have further submitted that investigation has been done by the complainant J.R. Jumnani (PW-10) himself and such investigation is also fatal to the prosecution in the judgment cited by them. It is further held that investigation was made by official who was alleged to have recovered and seized weapon conviction could not be sustained.

Learned Counsel for the appellants has also cited judgment of this Court in the matter of Samrath Madhuriya and Another Vs. State of Madhya Pradesh, in which it has been held that where testimonies of the witness doubtful, it does not appear from the record that the arms said to be seized were brought before the Court during the trial and were shown to the witnesses, there is no legal seizure in the eye of law in the absence of material exhibit of articles. Therefore, benefit of doubt is extended to the appellants. In the present case, the weapons seized have not been produced before the Court. The independent witnesses of seizure of weapons Ram Prakash (PW-2) and Udaiveer (PW-4) have turned hostile. The statements of three Inspectors said to have chased the appellants are contradictory on many important points regarding colour of vehicle, place tracing of parties, place of checking, chasing of the vehicle and fire from inside the vehicle or outside the vehicle. Further seized weapons were sealed on the spot and they have not sent to ballistic examination for confirming the fire made from them. Further, the seized weapons have been produced in the Court at the time of evidence. It is an admitted fact that seized weapon does not have any chit or identification mark to connect them with any of the appellant. In the absence of ballistic expert report, evidence regarding fire from any of the seized weapon, appellants cannot be held guilty for the offence punishable u/s 307 of IPC or Section 25-(1)(a)(b) and Section 27 of Arms Act or Section 11/13 of M.P.D.V.P.K. Act. Learned trial Court, therefore, not justified in convicting the appellants by impugned judgment looking to the above mentioned several discrepancies and shortcomings. Therefore, all these three appeals are allowed setting aside the impugned judgment appellants are acquitted from the charges for the offence u/s 307/34 of IPC read with Section 11/13 of M.P.D.V.P.K. Act, for the offence u/s 25-(1) (a)(b) of Arms Act read with Section 11/13 of M.P.D.V.P.K. Act and Section 27 of Arms Act read with Section 11/13 of M.P.D.V.P.K. Act. The appellants were on bail. Their bail bonds stand discharged. The fine amount, if any deposited by the appellants be refunded to them.