Suresh Kumar vs State of Madhya Pradesh

A.K. Srivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 22.12.1998 passed by learned Sessions Judge, Panna in Sessions Trial No.80/1996 convicting the appellant u/s 25(1-B)(a) of the Arms Act, 1959 (in short "the Act") and thereby sentencing him to suffer imprisonment of 1 year''s R.I. and further convicting him u/s 324 IPC and thereby sentencing him suffer R.I. of 11/2 years and fine of Rs.500/-; in default of payment of fine additional R.I. of one month, the appellant has knocked the doors of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that as per the case of the prosecution appellant fired Katta (country made pistol) upon the injured Rajesh Kumar Bagri as a result of which he sustained injury of the gunshot fire. The FIR was lodged and the injured was sent to the hospital for obtaining his MLC report and as well as for his treatment. The case was registered u/s 307 IPC and also u/s 25(1-B)(a) of the Act.

After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the Trial Court for trial.

Learned Trial Judge on the basis of the allegations made in the charge-sheet framed the charges punishable u/s 307 IPC and also u/s 25 and 27 of the Arms Act, which the appellant denied and requested for the trial.

In order to bring home the charges the prosecution examined as many as 20 witnesses and also placed Ex.P-1 to P-16 the documents on record. The defence of the appellant is of false implication and same defence he set forth in his statement recorded u/s 313 Cr.P.C. and in support of his defence, he examined two witnesses, namely, Rakesh Kumar Dwivedi (DW-1) and Krishnadayal Chaturvedi (DW-2) in regard to false implication.

Learned Trial Judge on the basis of the evidence placed on record came to hold that the charge u/s 307 IPC is not proved but the appellant has committed the offence u/s 324 IPC. Learned Trial Judge further came to hold that except the charge u/s 27 of the Act the charge u/s 25(1-B)(a) of the Act is also proved and eventually convicted him and passed the sentence as mentioned in para-1 of this judgment.

In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

The contention of learned counsel for the appellant is that if the testimony of the prosecution witnesses is considered in true perspective it would reveal that they are not worth reliable and therefore, the learned Sessions Judge has wrongly convicted the appellant for the offence punishable u/s 324 IPC as well as u/s 25(1-B)(a) of the Act.

On the other hand, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Trial Court convicting the appellant and therefore, this appeal be dismissed.

Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed in part.

So far as the conviction part of the appellant u/s 25(1-B)(a) of the Act is concerned, suffice it to say that same is not at all proved for the simple reason that as per the prosecution''s own case, the alleged Katta (country made pistol) was seized from the possession of the appellant on 4.9.1996 but for the reasons best known to the Investigating Agency same was not sent for 71/2 months. On bare perusal of the report of the FSL Examiner (Ex.P-15) it is gathered that alleged Katta was sent for examination on 26.4.1997, but, it was received in the office of the FSL Examiner only on 20.5.1997. This Court fails to understand that if the alleged Katta was seized long back on 4.9.1996 why it was sent after long delay and thus, it raises heavy doubt and possibility cannot be ruled out that the Katta was changed in the police station. In this regard, I may profitably place reliance on the decision of the Supreme Court Santa Singh Vs. The State of Punjab, wherein it has been held that suspicious delays that had occurred as regards important steps in the course of the investigation rendered it unsafe to hold that the case of the prosecution had been established beyond reasonable doubt. The same proposition of law has been followed by the Supreme Court in the later decisions, Modan Singh vs. State of Rajasthan, AIR 1978 SC 1511, Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, and State of Madhya Pradesh vs. Ghudan, JT 2003 (Suppl.2) SC 481.

In the present case, absolutely there is no evidence of the prosecution that where and in what condition for such a long period the Katta was lying in the police station and therefore, I am of the view that it is not proved that the Katta which is alleged to have been seized from the possession of the appellant was in working condition.

Eventually, the conviction of appellant u/s 25(1-B)(a) of the Act stands set aside and he is acquitted from the said charge.

The question now would rest on the pivot whether the appellant has been rightly convicted u/s 324 IPC. On bare perusal of the testimony of the injured Rajesh Kumar Bagri (PW-3) it is gathered that appellant fired the Katta upon him as a result of which he sustained injuries on right lumbar region of his back. The Katta fire injury has also been found by the MLC doctor, Dr. M.K. Naik (PW-9).

I have also gone through the reasonings assigned by learned Trial Court holding that appellant has committed the offence u/s 324 IPC. The finding rendered by learned Trial Court is based on correct appreciation of evidence of the injured vis-a-vis to the medical evidence and hence, the conviction of appellant under this Section is hereby affirmed.

The question would now rest on the pivot as to what should be the appropriate sentence. The incident had occurred on 16.8.1995 and after near about 17 years it would not be fruitful to send the appellant behind the bars. The appellant has already suffered Jail sentence of nine days, which has been stated by learned counsel for the appellant.

In this view of the matter, the appellant is enlarged for the period he had already undergone. However, the amount of fine Rs.500/-is enhanced to Rs.10,000/-. Let the balance amount of Rs.9,500/-be deposited in the Trial Court on or before 31.7.2012, failing which the appellant shall undergo the Jail sentence of six months R.I. The bail bonds of appellant shall stand discharged only after he deposits the entire amount of fine in the Trial Court.

The learned Trial Court is further directed to pay the entire amount of fine Rs.10,000/-to Rajesh Kumar Bagri s/o Parmeshwardin Bagri, R/o Itma Mahgu, Police Station Devendra Nagar, District Panna who appeared in the Trial Court as PW-3 towards compensation u/s 357 Cr.P.C. The appellant shall appear in the Trial Court on 22nd May, 2012 and on this date if appellant does not deposit the entire balance amount of compensation Rs.9,500/-, the Trial Court shall give a date which shall not exceed beyond 31.7.2012. In case, appellant fails to deposit the balance amount of compensation or fails to appear before the Trial Court, the learned Trial Court shall send him to Jail and shall send the report to the Registry of this Court. The learned Trial Court in that situation shall issue show cause notice to his surety and shall be free to pass necessary orders in accordance to the law against him.

The Registry is hereby directed to send the record posthaste so as to reach the learned Trial Court much prior to 22.5.2012. Resultantly, this appeal succeeds in part. The appellant is acquitted from the charge u/s 25(1-B)(a) of the Act. The conviction of appellant u/s 324 IPC is hereby affirmed, however, sentence is modified as mentioned herein-above.