Madhya Pradesh High Court
State Of M.P. vs Sikander on 9 March, 2017
Author: Anand Pathak
Bench: Anand Pathak
1 CRA 678/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH: Hon'ble Shri Justice N.K.Gupta &
Hon'ble Shri Justice Anand Pathak
CRA 678/2006
State of M.P.
Versus
Sikandar & Ors.
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Shri J.M.Sahni, learned Panel Lawyer for the
appellant/State.
Shri Anil Mishra, Shri Sunil Soni and Shri Ravindra Singh,
counsel for the respondents No. 1 to 3 and 5 & 6.
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JUDGMENT
( Delivered on 09.03.2017 ) The State has preferred the present appeal against respondents relating to judgment dated 17.3.2006 passed by Second Additional Judge to First Additional Sessions Judge, Guna in S.T. No. 1/2006 whereby the respondents have been acquitted from the charge under Section 399, 400 and 402 of IPC. The accused Banti and Sikandar have been acquitted from the charge under Section 25(1-B)(a) of the Arms Act. The accused Govinda was also acquitted from the charge under Section 25(1- B)(b) of the Arms Act.
(2) The prosecution's case, in short, is that on 2.12.2005, intimation was received by SHO, Dharnawada, M.S.Chauhan (PW-8) through outpost Ruthiyai that near Suketnala, 5 to 6 persons were present and making plan to commit dacoity. Entry was entered 2 CRA 678/2006 in Romjnamcha Sanha No. 47 and superior officers were informed. The police force collected and three parties were prepared. M.S.Chauhan was head of party No.1, whereas A.S.I Chaubey was leading second party. He was headed by Head Constable Hukum Singh and Constable Veerbhan, Rajkumar and Bhanwar Singh. Party No.3 was headed by ASI R.B.S.Raghuvanshi. After reaching to the spot, all the parties have surrounded the culprits and on giving warning six persons were arrested from the spot. From the respondents, Sikandar and Banti fire arms were recovered, whereas one sword has been recovered from respondent Govinda. Fire arms were sent for mechanical examination and those were examined by Constable Armour Anil Sharma (PW-7), who gave report ExP-16. Prosecution sanctioned ExP-13 was obtained from the District Magistrate and thereafter charge sheet was filed. The Judicial Magistrate First Class committed the case to the court of Sessions and ultimately it was transferred to the trial Court. (3) The respondents abjured their guilt. They did not take any specific plea and, therefore, no defence evidence was adduced.
(4) The trial Court after considering the prosecution's evidence, acquitted the respondents from all the charges.
(5) We have heard the learned counsel for the parties at length.
(6) In the present case, various members of the police party namely, Head Constable Suresh Sharma (PW-1), ASI, Mohabbat Singh (PW-3), ASI Harishankar Chaube (PW-4) and SHO A.S.Chauhan (PW-8) were examined before the trial Court and they claimed that they heard the talk took place between the culprits and after surrounding the culprits they were arrested. One muzzle 3 CRA 678/2006 loading gun was found with respondent No.1 Sikandar, whereas one 12 bore gun was recovered from respondent No.2, Banti. One sword was recovered from respondent Govinda. In this connection, the witnesses relating to recovery were also examined. Out of them, the witness Hemant Bhargav (PW-2) supported the prosecution case, whereas, Mohar Singh, (PW-6) has turned hostile. Mohar Singh stated that he was present on his tea shop in the night and he was taken by the police. Few persons were arrested from a place near Suketnala and they were taken to the police station. Thereafter, he was told to append signatures on various documents and he appended. The other witness Hemant Bhargav has supported the prosecution story. Looking to his cross examination, especially in para 4 he has accepted that he was also witness in the previous case which was lodged against the respondents. He has accepted that in previous case the respondents were falsely been implicated in the matter. He has claimed that he was standing at the tea shop of Mohar Singh and he was also taken by the police. He has also accepted that he was working as a Poojari of a temple at outpost Ruthiyai and M.S.Chauhan, SHO of Police Station Dharnawada was giving him remuneration for offering pooja in the temple. Under these circumstances, the trial Court has rightly found that Hemant Bhargav was a patent witness of the police. Under these circumstances, the trial Court has also rightly found that the independent witness Mohar Singh has turned hostile, whereas Hemant Bhargav was a patent witness and, therefore, looking to the activity in taking such witness the testimony of SHO M.S.Chauhan (PW-8) appears to be doubtful. (7) However, the witness Suresh Sharma (PW-1), ASI Mohabbat Singh (PW-3), ASI Harishankar Chaube (PW-4) 4 CRA 678/2006 and SHO M.S. Chauhan (PW-8) have stated that various arms were found with the respondents. The Additional Sessions Judge has pointed out one main discrepancy between the seizure memo ExP-8 and mechanical inspection report ExP-16 proved by Constable Anil Sharma (PW-7). According to the seizure memo ExP-8, the length of barrel of 12 bore gun was 14 inches, however, it was mentioned by the SHO M.S.Chauhan that it was a pistol, whereas in the document ExP-16 the length of barrel is mentioned to be size of eight fingers, i.e., the length would be six inches, hence possibility can not be ruled out that the arms which were allegedly recovered form the respondents were not sent for examination.
(8) The learned counsel for respondent No.6 has pointed out that after making seizure of various arms it has not been shown by SHO M.S.Chauhan that those arms were sealed after seizure. No impression of brass seal used in sealing was affixed on any of the seizure memo. Consequently, Constable Anil Sharma did not mention that he has received any arm in sealed condition. Under these circumstances, looking to the size of barrel of the gun allegedly recovered from the respondent Banti, it appears that the gun which was recovered from Banti was not sent for its mechanical examination, and therefore, it appears that the arms shown to be seized were changed by SHO M.S.Chauhan (PW-8). Such activity creates a doubt as to whether any arm was found with any of the respondent or not? (9) The Additional Sessions Judge has also pointed out the fact that it was not possible for the police party to hear the talk took place between the respondents for making plan of dacoity, whereas the witnesses have stated about different places relating to plan of dacoity.
5 CRA 678/2006Hemant Bhargav and Suresh Sharma have stated that the respondents were making plan to commit dacoity at the house of one Prem Singh Gurjar, whereas ASI Mohar Singh informed that the dacoits were shouted that now it is proper time to start to commit dacoity in the house of Sarpanch, but he did not mention the name of the Sarpanch. If the respondents would have loudly told that it was the proper time to leave for committing dacoity in the house of Sarpanch Prem Singh Gurjar, then such word should be heard by each member of the police party, whereas Harishankar Chaube (PW-4) and Suresh Sharma (PW-1) did not mention that the respondents told about the time to leave from the spot to commit dacoity at the house of Prem Singh Gurjar. It would be apparent that no vehicle was recovered from the respondents. If the respondents had gone to commit dacoity at the house of Prem Singh Gurjar, then it was for the Investigation Officer to show that what was the distance of house of Prem Singh Gurjar from the spot where the respondent could go on foot.
(10) Looking to aforesaid discrepancies, it was not possible for the respondents to plan for dacoity by talking in such a loud manner. In this connection, the judgment passed by this Court in the case of "Ramcharan Vs. State of M.P." reported in [1987 (1) MP Weekly Note, Note 69] may be referred, in which it is held that it would be an unnatural allegation that planning of dacoity can be prepared by talking loudly. Similarly, it is surprising that if the respondent No.1 Sikandar and respondent No.2 Banti had fire arms and when they were surrounded by the police party they did not fire with the guns. In the judgment passed in the case of "Ramsewak and others Vs. State of MP", (1999 (3) Crimes 559), it is held that 6 CRA 678/2006 after having guns etc., it is not natural that the culprits would not have used the guns when they have collected to make plan for committing dacoity.
(11) Under these circumstances, in the light of aforesaid judgments passed by various courts, it appears that no weapon was recovered from the respondents and those weapons were shown to be recovered at police station. The trial Court has found that it can not be proved by the prosecution that the respondent Sikandar and Banti had fire arms and Govinda had a sword. Under these circumstances, when it was not proved beyond doubt that these culprits had weapons as shown by the police at the time of incident, then they can not be convicted for any offence punishable under the Arms Act. The trial Court has rightly acquitted the respondents Sikandar and Banti from the charge under Sections 25(1-B)(a) of the Arms Act and similarly the trial Court has rightly acquitted the respondent Govinda from the charge under Section 25(1-B)(b) of the Arms Act.
(12) When no cogent evidence was established by the prosecution that the respondents were in a position to commit dacoity in the house of Sarpanch Prem Singh Gurjar and they intended to go there then in forest if some one was found with the arms, then it can not be presumed that he was present to prepare for planning to commit daocity. In this connection the judgment passed by the Single Bench in the case of "Pahalwan Singh Vs. State of MP" reported in [1983 MPLJ 449] may be referred in which it is held that mere carrying of arms by persons when they were crossing a jungle does not constitute any offence punishable under Sections 399, 400 and 402 of IPC.
(13) On the basis of aforesaid discussion, the trial Court has rightly acquitted the respondents from the charge 7 CRA 678/2006 under Sections 399, 400 and 402 of IPC. It is settled view of the Apex Court that unless perverse or improbable judgment has been passed by the trial Court, the Appellate Court is not required to interfere in the matter. However, there is no reason to interfere in the judgment passed by the trial Court. The appeal filed by the State has no substance.
(14) Consequently, the same is hereby dismissed. Various respondents are on bail, their presence is no more required before this Court now and therefore it is directed that their bail bonds shall stand discharged. The respondent No.1 Sikandar could not be traced. However, when his presence is no more required, there is no need to issue any production warrant or arrest warrant against him.
(15) A copy of the judgment be sent to the trial Court along with its record for information.
(N.K.Gupta) (Anand Pathak)
Judge Judge
09/03/2017 09/03/2017
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