Raju Dubey vs State of M.P.

Tej Shankar, J.—This appeal has been filed by Appellant against his conviction and sentence u/s 25(1)(a) and Section 27 of the Arms Act whereby he has been awarded 2 years R.I. by Shri G.S. Thakur, the then Additional Sessions Judge, Datia, on 19.4.90.

The Appellant was tried u/s 307 IPC and Section 25(1)(a) and Section 27 of the Arms Act with the allegation that on 16.9.89 at about 1.30 p.m. a meeting of Bhartiya Janta Party (in short B.J.P.) was organised at the residence of the complainant at Rajghat Colony Datia. The informant Radhakant Agrawal was the Vice-President of the party and Harihar Shrivastava was the General Secretary. They along with Ors. were present in the meeting. It is claimed that when the informant Radha Kant Agrawal came out of his house the Appellant fired with his country made pistol with the intention of killing him and causing injuries. The persons present in the meeting intervened. The Appellant gave Anr. fire on Radhakant which did not hit him. A telephonic message was given to the Police by Harihar Shrivastava and Police force arrived at the spot. An FIR was lodged by the informant Radhakant on the same day at 13.30 hours (Ex. P-10) which was written by PW 9 Angadsingh Kushwah and a case was registered u/s 307 IPC/25/27 Arms Act. He went to the spot along with police force and saw that Raju was firing with katta on the crowd. He arrested him on the spot and prepared memo Ex. P-5. A country made katta was recovered. Three empty cartridges were also recovered from the spot. The country made pistol was Article A whereas empty cartridges were Articles B to D. He recorded statements of Munnalal, Harihar Nivas, Bhagwandas, Radhakant, Siyasharan and Kamta. He also prepared the site plan on the pointing out of Radhakant which is Ex. P-7. He had prepared a letter for sanction u/s 25/27 Arms Act to the District Magistrate, Datia and sanction was given, vide Ex. P-3. He had sent the articles for examination to the ballastic expert and report is Ex. P-12. After completing investigation a charge-sheet was submitted.

The accused denied the charge. He also denied the recovery of country made pistol. The prosecution examined in all 9 witnesses and relied upon documents Ex. P-1 to P-12. The accused did not enter upon his defence. The learned trial Court after hearing the parties and considering the material on record acquitted the accused u/s 307 IPC but held guilty u/s 25/27 Arms Act and sentenced him to 2 years R.I. under each count. Hence this appeal.

The learned Counsel for the Appellant contended that in this case the Appellant has been acquitted of the main charge u/s 307 IPC on the same evidence he could not be convicted under the aforesaid sections of the Arms Act. He further argued that all the independent witnesses did not support the prosecution case and turned hostile. The learned Counsel has relied upon the statement of I.O. PW 9 Angadsingh Kushwah, who was also the arresting officer. His statement does not prove that the arm alleged to have been recovered was actually recovered from the Appellant. He further contended that the sanction in the case has not been proved. It has not been shown that it related to the arm which is alleged to have been recovered. The sanction is not proper. The T.I. did not say in his statement that he had sent the case diary etc. and the arm alleged to have been recovered for sanction. Lastly, the learned Counsel argued that the prosecution has not shown any notification as required under the law. The learned Counsel referred to the provisions of Section 25(1)(h) & (i) as well as Section 27 Arms Act. He placed reliance on a decision of this Court reported in 1986 (1) MPWN 97 : 1986 C.Cr.J. 1178 (Suhedar Singh v. State of M.P.). The learned Counsel for the State, on the other hand, argued that conviction can be based upon the statement of the I.O. alone and the mere fact that the independent witness turned hostile will not affect the prosecution case so far as the recover)'' of instruments is concerned. He relied upon Parveen Vs. State of Haryana, and Anil alias Andya Sadashiv Nandoskar Vs. State of Maharashtra, .

It is not disputed that the Appellant was tried u/s 307 IPC and has been acquitted by the learned trial Court. No appeal against his acquittal has been filed by the State. The record also shows that inspite of the fact that several witnesses were examined by the prosecution none of the independent witnesses has supported the prosecution story. PW 1 Upendra Kumar Shrivastava PW 3 Bhagwandas, PW 5 Munnalal, PW 6 Harihar Nivas Shrivastava and PW 7 Kamta Prasad have been examined as witnesses of fact but they have not supported the prosecution case. Out of these witnesses PW 5 Munnalal and PW 6 Harihar Nivas Shrivastava were independent witnesses of the alleged recovery. The have also not supported the recovery as well. Thus, there remains the solitary testimony of PW 9 Angad Singh Kushwah, who has stated that he had arrested the accused. It is important to mention here that he is also the investigating officer. In a recent decision the Apex Court has held that the arresting officer should not be the investigating officer himself. Apart from it, if we scrutinise the statement of PW 9 Angad Singh Kushwah we find that he has stated that on 16.9.89 an oral report was lodged by Radhakant and he had registered a case u/s 307 IPC and Section 25/27 Arms Act. for the purpose of investigation he went to the spot. He had seen Raju firing on the crowd with country made pistol (katta). He arrested Raju on the spot. It is to be noted at this place that according to him he proceeded to the spot after the lodging of the report Ex. P-10. The report was lodged at 14.45 hours and the occurrence is alleged to have been taken place at 13.30 hours. Thus, the very fact that he reached after the lodging of the report at the spot and he had found Raju firing with the Katta appears to be extremely doubtful. The simple reason is that the occurrence had taken place 13.30 hours as mentioned in FIR and the FIR was lodged at 14.45 hours and he had proceeded thereafter how he could find that Raju was firing with Katta on the crowd after such a long delay. Assuming for the sake of argument that what he has stated is correct though I have doubt for it on the basis of what has been said above. In that case, he has stated that he arrested Raju on the spot, vide memo Ex. P-5. The memo shows that it has been mentioned therein that nothing was recovered from the accused except wearing apparel. Thus, to say that a country made pistol was recovered in the teeth of this document which is alleged to have been prepared by the witness himself, is nothing but wholly incorrect. There is, however, Anr. document Ex. P-6. In his statement he stated that he recovered a country made Katta and prepared its memo Ex. P-6. In this document he has mentioned that in accordance with the site plan he recovered at point C an illegal Katta and spent up cartridges from the possession of the accused. It contradicts the document Ex. P-5 where he specifically mentions that nothing except wearing apparel was recovered. There is nothing in his statement to show that the recovered article i.e. the alleged country made pistol was at all sealed at the spot and signatures of the witnesses were obtained. It is the duty of the prosecution to dispel all suspicion with respect to an act done by it. Here the prosecution claims that a country made pistol was recovered from the accused in order to show that the instrument was actually recovered before the witnesses from the accused and the same instrument was sent to the Magistrate as required u/s 52 Code of Criminal Procedure and the sanction related to the same instrument. It was the duty of the prosecution to have shown that the instrument was sealed before the witnesses on the spot, unless it is proved, it cannot be said with certainty the instrument in respect of which the offence is alleged to have been committed was the same instrument which is alleged to have been recovered. No evidence in this regard has been produced. The authorities relied upon by the learned Counsel for the State do not deal with this aspect. In the case of Parveen (supra) reference has been made by the learned Counsel to para 8 and 10 of the judgment. In para 8 the contention of the learned Counsel has been mentioned by the Apex Court. It was argued before the Apex Court that all the witnesses had turned hostile and it was not safe to accept the evidence of Siri Narain (PW 2) to convict the Appellant. It was urged that the seizure memo in respect of the barrel gun, empty and live cartridges were all false and could not be made the basis of conviction. While dealing with this argument the Apex Court after carefully scrutinising the evidence and other materials on record held that there was no substance in any of the contentions of the learned Counsel. Here in the present case, as said above, no evidence has been adduced to dispel the suspicion about the recovery. In the other authority referred to above the principle laid down is that the testimony of the police officials cannot be discarded merely on the ground that they are police officials. There cannot be any quarrel about this principle of law. If on facts the statement of police officers inspire confidence it could be relied upon and conviction can be passed upon it but if the statement does not inspire confidence no reliance can be placed upon it. As shown above, the statement of PW 9 Angad Singh Kushwah, who is the Investigating Officer does not inspire confidence I, therefore, find myself unable to place any reliance upon his testimony regarding recovery.

Apart from what has been said above, I may mention that sanction in this case is also not proved, in my view. It is important to mention that Section 39 of the Arms Act is not a mere formality. Under this section a person cannot be prosecuted without the previous sanction of the District Magistrate with respect to any offence u/s 3 Arms Act. To my mind, the sanction must be given by the authority concerned after fully satisfying that an offence is prima facie made u/s 3. In order to make up its mind the authority concerned must see the relevant documents as well as the instrument which must be produced before the sanctioning authority at the time of granting sanction. Unless the sanctioning authority looks itself the instrument in respect of which sanction is sought, he cannot be said to have any idea as to whether the possession of the instrument was illegal or the instrument was actually recovered within the definition given in Section 2. It is, therefore, emphasised that it is mandatory for the authorities seeking sanction to produce the instalment before the sanctioning authority and the sanctioning authority must itself satisfy that the instrument is such which is covered within the definition given in the Act. There is no material on record in the case in hand to show that the instrument was ever produced before the sanctioning authority. Mere statement of the Anns Clerk who has been produced as PW 5 can simply prove the signatures of the Collector. He could not prove that the Collector had applied his mind while granting the said sanction. The person who had actually obtained the sanction must be produced. In my view, the I.O. himself should take the instrument before the sanctioning authority for obtaining the sanction and the sanctioning authority must give sanction after applying its mind. I, therefore, find that sanction in this case has also not been proved. The document Ex. P-3 cannot be said to be a proper sanction under the aforesaid circumstances.

In view of what has been said above, I conclude that the accused could not be convicted u/s 25/27 Arms Act. The appeal, therefore, succeeds. It is accordingly allowed. The order of conviction and sentence passed against the accused-appellant is set aside and he is acquitted of the charge for which he has been convicted. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.