Madhya Pradesh High Court
Manoj vs The State Of Madhya Pradesh on 7 November, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 7 th OF NOVEMBER, 2023
CRIMINAL REVISION No. 3299 of 2023
BETWEEN:-
MANOJ S/O RAJENDRA, AGED ABOUT 42 YEARS,
OCCUPATION: LABOUR, R/O VILLAGE DONGER GAON
PS AND TEHSIL PANDHANA DISTT. KHANDWA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SAMAR SINGH RAJPUT - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION PIPLOD DISTRICT KHANDWA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI P. CHATTERJEE - PANEL LAWYER)
Heard on : 02.11.2023
Pronounced on: 07.11.2023
This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
T h is criminal revision has been preferred against the judgment of conviction and sentence passed on 20.7.2023 in Criminal Appeal No.136/2022 by Sessions Judge, Khandwa, whereby the appeal was dismissed both on the findings of conviction and the quantum of sentence, maintaining the judgment passed on 14.6.2022 in RCT No.2702529/2016 by Chief Judicial Magistrate, Khandwa and holding the applicant guilty of the offence of Section 25(1-B)(b) 2 of Arms Act and sentencing him to imprisonment of one year and fine of Rs.100/- along with a sentence of simple imprisonment for eight days in case of non-payment of fine.
2 . Brief facts of the prosecution case are that on 11.11.2016, Head Constable Jamna Prasad Sharma of Police Station, Piplod, received information that a person was threatening people on Rampuri Chouraha with an iron knife; Head Constable reached on spot along with witnesses and found the applicant present there carrying a sharp-edged iron knife in his hand; Jamna Prasad Sharma nabbed the applicant and seized the iron knife from his possession; applicant was arrested on the spot and was brought to the police station along with the seized weapon. An FIR was registered and after investigation the charge-sheet was filed. The applicant was subjected to trial and was convicted and sentenced by both the courts below, as discussed earlier.
3. The grounds raised in this criminal revision are that the prosecution story suffered from material contradictions, improvements and omissions in the statements of prosecution witnesses, therefore there was no legal evidence available against the applicant; physical verification of seized Arm was not done; independent witnesses were either not produced or failed to support the prosecution story; the entire case was decided only on the basis of suspicion; the police party did not give its search before starting the procedure of searching the person of applicant; there was no earlier conviction of applicant; the seized Arm was not found in exclusive possession of applicant. According to applicant, the prosecution completely failed to prove the circumstances beyond doubt against him. It is, therefore, prayed that the criminal revision be allowed and the applicant be acquitted in the matter.
34 . The revision petition has been contested on behalf of State on the ground that there is no illegality or perversity in the judgments passed by the courts below.
5. Both the parties have been heard and records of the courts below have been perused.
6. From the perusal of the record of trial court, it is evident that only three witnesses were examined on behalf of prosecution, they are Gulab Chand (P.W.1), Baliram (P.W.2) and Head Constable Jamna Prasad Sharma (P.W.3). Gulab Chand (P.W.1) and Baliram (P.W.2) were the witnesses of proceedings relating to seizure and arrest but they both turned hostile. According to Gulab Chand, applicant was although arrested by police but not for the reason of carrying any prohibited Arm but because applicant had intruded into his house. Thus, the story narrated by Gulab Chand (P.W.1) does not corroborate the prosecution case at all. Baliram (P.W.2) turned completely hostile refuting the arrest as well as seizure, therefore statements of these witnesses did not help the prosecution to prove its case.
7. Now remains the statement of only Head Constable Jamna Prasad Sharma (P.W.3) who allegedly received the information from the mukhbir, reached the spot, seized the knife, arrested the applicant, brought him to the police station, registered the FIR and after completing the investigation, filed the charge-sheet. Thus, it was Head Constable Jamna Prasad Sharma (P.W.3), who was not only the complainant but conducted the entire investigation.
8. According to Jamna Prasad Sharma, he was on patrol duty when he received the information; he informed the witnesses Gulab Chand and Baliram, reached the spot and found the applicant carrying a sharp-edged knife, which was seized from applicant for not having any licence to validate his possession 4 and the applicant was arrested. It is interesting to note that this witness has claimed that there were entries regarding his departure from and arrival at the police station in Rojnamcha Sanha but those entries, despite being available on record, were not produced in evidence. The reason perhaps was that they were not the copies admissible in evidence but that could not have been the reason to avoid submission of this important piece of evidence. Since the case was based on the sole testimony of Head Constable Jamna Prasad Sharma, therefore care should have been taken to corroborate his testimony with the entries made in Rojnamcha Sanha. No reason has been assigned in the evidence or in the order- sheet regarding non- production of this material evidence.
9. It has been claimed by witness Jamna Prasad Sharma that he seized the sharp-edged knife from the possession of applicant. In his court testimony, he has further claimed that he sealed this weapon on the spot but interestingly there is no mention about the fact of putting any seal on the seized weapon in the FIR, marked as Ex.P-6. If we go through the seizure memo, marked as Ex.P-1, again there is no disclosure that the weapon was sealed on spot. Column no.13 of that document is also blank where the sample of specimen seal should have been affixed. Thus, neither from the FIR nor from the seizure memo, it is proved that the weapon seized on spot was sealed by Head Constable Jamna Prasad Sharma either at spot or thereafter at the police station. Exs.P-3 and P-4 are the statements of seizure witnesses, namely Gulab Chand and Baliram, and there is no detail in these statements regarding putting a seal on the seized weapon.
10. It is mentioned in the statements of Jamna Prasad Sharma (P.W.3) that the seized weapon was brought before the court in a sealed condition and 5 after breaking open the seal, a knife was taken out of it. The details how the weapon was sealed are not mentioned elaborately in the note made by the court but it appears that it was wrapped in some paper or cloth upon which a seal was affixed. It is further mentioned therein that a seizure chit was affixed on the knife, which was signed by witnesses Jamna Prasad Sharma (P.W.3) and two seizure witnesses as well as by the applicant. That seizure chit is marked as Ex.P-5. These details disclose that there was some investigation kit available with the witness Jamna Prasad Sharma (P.W.3) with which he was wrapping the knife in some cover and was then putting the seal thereon but the entire testimony of Jamna Prasad Sharma (P.W.3) is silent on adoption of this course. Even the FIR registered in the case, marked as Ex.P-6, fails to give details thereof. Therefore, the procedure of putting the weapon in a cover and getting it sealed has remained not proved in the case. It is significant to mention here the defence taken by the applicant during the cross-examination of Jamna Prasad Sharma (P.W.3) in which it is suggested that the applicant was summoned in the police station and there he was implicated in the crime.
11. Taking into consideration the infirmities in the prosecution case, the conviction based on the sole testimony of Jamna Prasad Sharma (P.W.3) does not appear to be sustainable. Case laws have been cited by learned trial court on this legal aspect that conviction can be based on a sole testimony of a police officer who is as much reliable as any other witness and his testimony cannot be brushed aside for the reason of being in police force. This legal position is well established but it cannot be ignored here that the corroborative evidence was available through Rojnamcha Sanha entries and evidence regarding sealing the weapon on spot but prosecution did not venture upon searching for any corroborative piece of evidence and relied merely on the testimony of one 6 witness. The reason for withholding the corroborative evidence is not available in the entire record. It is an established principle of law that an adverse inference should be drawn against the party who has withheld the material evidence without explaining the reason for withholding it.
12. In the light of above discussion, the conviction of applicant under Section 25(1-B)(b) of Arms Act is set aside and he is acquitted of the offence.
13. The applicant is in custody. He be immediately released. The fine amount, if any, deposited in the case be refunded to him.
14. A copy of the order be sent to the courts below along with their records for information and necessary action. The finding of trial court regarding disposal of seized property is affirmed.
(ANURADHA SHUKLA) JUDGE ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.11.08 15:03:03 +05'30' Adobe Reader version: 11.0.8