Madhya Pradesh High Court
Vishal Yadav vs State Of M.P. on 12 July, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRR.111/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Criminal Revision No.111/2012
Vishal Yadav
-Vs-
State of M.P.
________________________________________________
Shri Anant Kumar Bansal, Counsel for the applicant.
Shri Girdhari Singh Chauhan, Public prosecutor for the
Respondent/State.
_______________________________________________
ORDER
(12/07/2017) Today the case is listed for hearing on the question of admission. As this criminal revision is pending since 2012, therefore, with the consent of the parties, the case is heard finally as the records of the Courts below have already been received.
This criminal revision under Section 397/401 of Cr.P.C. has been filed against the judgment dated 10.11.2011 passed in Criminal Appeal No. 528/2011 by IIIrd Additional Sessions Judge (Fast Track Court) Dabra, District Gwalior upholding the judgment dated 5.9.2011 passed by JMFC, Dabra District Gwalior in Criminal Case No.866/2004 by which the applicant has been convicted under Section 25 (1-B) (a) of Arms Act, 1959.
From the order sheet of this Court it appears that on 22.2.2012, a statement was made by the counsel for the applicant that one more revision filed by the another convict namely Vikas Yadav is also pending and, therefore, the prayer for analogous hearing along with the Criminal Revision No. 2 CRR.111/2012 102/2012 filed by the co-accused Vikas Yadav was allowed and it was directed that this case be listed along with Criminal Revision No. 102/2012 after the receipt of the records. Thereafter, the matter was adjourned on different dates and ultimately, by order dated 5.9.2012, this Court directed to de- link the present revision from Criminal Revision No. 102/2012 as both the revisions were filed against two different judgments of conviction and accordingly this case was separated.
From the record of this criminal revision, it appears that from thereafter the matter was listed on the question of admission but every time the case was adjourned for one reason or the other. On 8.3.2017, this Court had directed for requisitioning the record of the Trial Court and today the case is listed for hearing along with the record of the courts below.
It is submitted by the counsel for the applicant that on 23.2.2002, two persons, namely the applicant Vishal Yadav and Vikas Yadav were arrested outside the Railway Station, Dabra District Gwalior and it is alleged that the applicant was found in possession of four live cartridges whereas the co- accused Vikas Yadav was found in possession of six live cartridges of .38 bore revolver. As neither the applicant nor the co-accused Vikas Yadav were having the licence to possess the live cartridges, therefore, two different cases were registered. One Criminal Case No. 100/2002 was registered against the applicant and another crime was registered against the co-accused Vikas Yadav. By judgment dated 5.9.2011 passed in Criminal Case No. 1624/2004 by JMFC, Dabra, District Gwalior Vikas Yadav S/o G.P. Yadav was convicted under Section 25 (1-B) (a) of Arms Act and was sentenced to undergo the rigorous imprisonment of three years and the criminal appeal filed by the co-accused Vikas Yadav was dismissed by judgment dated 10.11.2011 passed by IIIrd 3 CRR.111/2012 Additional Sessions Judge (Fast Track Court), Dabra, District Gwalior in Criminal Appeal No. 527/2011. The co-accused Vikas Yadav filed a criminal revision before this Court which was registered as Criminal Revision No. 102/2012 and this Court by judgment dated 6.11.2012 acquitted the co-accused Vikas Yadav from the charges leveled against him. It is submitted by the counsel for the applicant that as the applicant was arrested along with the co-accused Vikas Yadav, therefore, he is also entitled for acquittal in the light of the judgment passed by this Court on 6.11.2012 in Criminal Revision No. 102/2012.
The record of the Criminal Revision No. 102/2012 was requisitioned and I have gone through the judgment passed by this Court in Criminal Revision No.102/2012. From the judgment passed in Criminal Revision No. 102/2012, it transpires that the said judgment has been passed considering the lapses committed by the prosecution while conducting the investigation in a separately instituted criminal case. The evidence in both the cases i.e. the present case and the criminal case against the co-accused Vikas Yadav were led separately, investigation was done separately and, therefore, it cannot be said that this case is squarely covered by judgment dated 6.11.2012 passed by this Court in Criminal Revision No. 102/2012. Accordingly, this Court is of the considered opinion that this criminal revision has to be decided on its own merits without getting influenced by judgment dated 6.11.2012 passed by this Court in Criminal Revision No. 102/2012.
The necessary facts for the disposal of the present criminal revision in short are that on 23.2.2002 the present applicant was arrested and was found in possession of four live cartridges of 315 bore and the applicant was not having any valid licence to possess the same. According to the prosecution case, the SHO, Police Station Dabra, District 4 CRR.111/2012 Gwalior received an information from an informant that a criminal gang who is popularly known as Chaddhi Baniyan Gang (as they wear only undergarments while committing offence) is trying to enter in the district with an intention to commit some serious offence, therefore, the police party was conducting a routine search and when the police party reached near the Sarafa Bazar Mal Godam Road they searched two persons who were coming from the side of the Railway Station but nothing objectionable was found in their possession. Thereafter when two other persons were stopped, they tried to run away from the spot after noticing the police party and, therefore, they were arrested on suspicion and on enquiry, one disclosed his name as Raj Kumar but when he was interrogated, then he disclosed his correct name as Vishal Yadav S/o Late Kamalraj Yadav and four live cartridges of 315 bore were found along with cash and other articles. The applicant could not produce any licence to possess the cartridges. On interrogation, he disclosed that he is involved in abducting Nitish Katara. A criminal case was registered against the applicant for offence under Section 25 (1-B) (a) of Arms Act. The applicant was arrested, the live cartridges were seized, seizure memo was prepared, the cartridges were sealed on the spot, the statements of the witnesses were recorded and after obtaining sanction for prosecution, the charge sheet was filed.
The Trial Court by order dated 13.3.2002 granted bail to the applicant but as the applicant was arrested in another case pertaining to abduction and murder of Nitish Katara, therefore release warrant was not issued and the Trial Court by order dated 7.4.2007 framed charge under Section 25 (1-B) (a) of Arms Act. The applicant abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case examined 5 CRR.111/2012 Shahjad Khan (PW-1), Hoshiyar Singh (PW-2), Ashok Kushwah (PW-3), Sukhvir Singh (PW-4), Gopal Singh (PW-5), Mahmood Ahmad Khan (PW-6), Ramvir Singh (PW-6) (It appears that in place of mentioning this witness as PW-7, again this witness has been marked as PW-6, therefore, this witness shall be referred as PW-6A in the judgment), Pramod Chaturvedi (PW-
7), Brijmohan (PW-8), Lal Singh (PW-9), Ashok Singh Bhadoriya (PW-10) and B.S. Jadon (PW-11).
The applicant did not examine any witness in his defence.
Lal Singh (PW-9) is an Armourer who had examined the cartridges. This witness has stated that he had examined all four live cartridges and it was found that they can be used causing human loss. The examination report is Ex.P/7 and articles A, B, C and D are the same cartridges which were examined by this witness. This witness was cross-examined but nothing could be elicited which may make the report ExP/7 as untrustworthy.
Pramod Chaturvedi (PW-7) is a Clerk working in the office of ADM who has proved the sanction for prosecution granted under Section 25 of the Arms Act. This witness has specifically stated that the order of sanction was dictated by the then ADM and this witness had typed the order. The order was signed by the ADM and it bears the signatures of ADM from A to A and this witness is well conversant with the signatures of the then ADM as this witness had worked with him for sufficiently long time. In order granting sanction for prosecution Ex.P/6, it is specifically mentioned that the report of the Armourer and case diary along with the seized cartridges were inspected by the ADM. Thus, it is clear that the sanction for prosecution Ex.P/6 was granted by the ADM after due application of mind.
Shahjad Khan (PW-1), Hoshiyar Singh (PW-2), Mahmood 6 CRR.111/2012 Ahmad Khan (PW-6) are the independent witnesses who have not supported the prosecution case and have turned hostile.
Ashok Kushwah (PW-3), Sukhvir Singh (PW-4), Gopal Singh (PW-5), Ramvir Singh (PW-6A), Brijmohan (PW-8) and Ashok Singh Bhadoriya (PW-10) have stated specifically that on 23.2.2002 the police party received an information that some members of the Chaddhi Baniyan Gang are coming to Dabra with an intention to commit serious offence and, therefore, routine checking was going on near the Mal Godam Road and the police party was checking the passengers who were coming by train. The police party stopped and searched two boys and at that time they noticed that two more boys were following them who tried to run away after noticing the police party. They were caught hold by the police party. One of the accused initially disclosed his name as Raj Kumar but thereafter he disclosed his correct name as Vishal Yadav and on search, four live cartridges of 315 bore were seized from his possession vide seizure memo Ex.P/1 and applicant was arrested by arrest memo Ex.P/2. The FIR was lodged which is Ex.P/8 and thereafter the investigation was handed over to Brijmohan (PW-8). These witnesses were cross-examined in detail, however nothing could be elicited from the cross- examination which may make their evidence unreliable. From the evidence of these witnesses it is clear that the applicant and the co-accused Vikas Yadav were wanted in the Nitish Katara murder and abduction case. As the police party had received an information with regard to entry of the members of the Chaddhi Baniyan Gang in Dabra with an intention to commit some serious offence, therefore, a routine checking was going on and the police party was carrying on the search of the passengers who were coming to Dabra by train and, during the routine checking the applicant was caught hold by the police and four live cartridges were found in his 7 CRR.111/2012 possession. By referring to the evidence of the witnesses, it is submitted by the counsel for the applicant that some of the witnesses have stated that the applicant was arrested without any resistance whereas some witnesses have stated that after noticing the police party the applicant and the co-accused Vikas Yadav had tried to run away, which clearly shows that the evidence led by the prosecution is not trustworthy and this Court by judgment dated 6.11.2012 has already acquitted the co-accused Vikas Yadav passed in Criminal Revision 102/2012. As already pointed out by this Court that the co-accused has been acquitted by this Court after considering the various circumstances which were in his favour like the non-production of the seized cartridges; failure on the part of the prosecution to send all the cartridges to the Armourer for their examination; material discrepancies and omissions as well as contradictions in the evidence of the parties, coupled with the fact that there is also a discrepancy in the evidence of the witnesses as to the conduct of the accused at the time of arrest. However, in the present case, the discrepancy in evidence of witnesses with regard to the conduct of the accused at the time of the arrest as to whether they had tried to run away or they were arrested without any resistance by alone cannot be said to be a circumstance warranting acquittal of the applicant. Here, it is not the case of the applicant that he was not wanted in another criminal case known as Nitish Katara murder case. The applicant was granted bail but he was never released as he was wanted in the said case and he was taken into custody by Ghaziabad police. In the present case, although the seizure witnesses have not supported the prosecution case but it is well established principle of law that the evidence of the police personnel cannot be rejected merely on the ground that they are the police personnel and a person can be convicted on the basis of the evidence of the police 8 CRR.111/2012 personnel if their evidence is found to be trustworthy. In the present case, nothing could be pointed out by the counsel for the applicant which may make the evidence of the police party unreliable. Further, it is well established principle of law that in exercise of powers under Section 397/401 of Cr.P.C. this Court cannot re-appreciate the evidence unless and until the findings given by the Trial Court are challenged on the ground of perversity or without any evidence on record. As the counsel for the applicant could not point out any perversity in the findings recorded by the Trial Court, this Court is of the view that the Trial Court as well as the Appellate Court did not commit any illegality by convicting the applicant for offence under Section 25 (1-B) (a) of Arms Act.
Accordingly, the judgment dated 5.9.2011 passed by JMFC, Dabra, District Gwalior in Criminal Case No. 866/2004 as well as the judgment dated 10.11.2011 passed by IIIrd Additional Sessions Judge (Fast Track Court), Dabra District Gwalior in Criminal Appeal No. 528/2011 are affirmed. The conviction of the applicant under Section 25 (1-B) (a) of Arms Act is affirmed. The Trial Court has awarded a sentence of rigorous imprisonment of three years and a fine of Rs. 1,000/- with default imprisonment. As the applicant was undoubtedly wanted in Nitish Katara murder case and the applicant was absconding and was having ammunition with him without any licence to possess the same, therefore, under the facts and circumstances of the case, the sentence of three years imposed by the Trial Court cannot be said to be unjustified. Accordingly, the same is also affirmed. Consequently, this revision fails and is hereby dismissed.
(G.S. AHLUWALIA)
(alok) Judge