Madhya Pradesh High Court
The State Of Madhya Pradesh vs Prashant Singh on 12 April, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 12th OF APRIL, 2022
CRIMINAL APPEAL No. 832 of 2016
Between:-
THE STATE OF MADHYA PRADESH TH. PS
GORAKHPUR JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI YOGENDRA DAS YADAV, GOVERNMENT ADVOCATE )
AND
PRASHANT SINGH S/O S SINGH , AGED ABOUT 20
YEAR S , PS GORAKHPUR JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT )
T h is appeal coming on for admission this day, the court passed the
following:
ORDER
Heard.
2. This appeal under Section 378(III) of Cr.P.C. has been filed by the State of Madhya Pradesh against judgment of acquittal dated 29.3.2010 passed in S.T. No.282/2009 (State of M.P. Through: P.S. Gorakhpur, District Jabalpur Vs. Prashant Singh) by Additional Sessions Judge to the Court of First Additional Sessions Judge, Jabalpur, under Section 25(1B)(b) of Arms Act and Section 5 of Explosive Substance Act, whereby respondent/ accused has been acquitted of offence under Sections 25(1B)(b) of Arms Act and Section 5 of Explosive Substance Act.
3. Learned Government Advocate assailing the impugned judgment and findings recorded therein has contended that factum of recovery of knife having total length of 18", handle 5" blade - 13" and width 2" and two live bomb for killing pig from the possession of the respondent/ accused has been proved by the Signature Not Verified prosecution by the evidence of Sushmita Niyogi (P.W.5) and her evidence stand SAN Digitally signed by DEEPA MISHRA corroborated from the evidence of Sanju Sonker (P.W.4) an independent witness Date: 2022.04.13 17:13:00 IST of seizure memo (Exhibit P/3) and arrest memo (Exhibit P/4). As factum of 2 recovery of two live bombs used to kill pig and knife finds corroboration from the evidence of independent witness, learned Trial Judge was not justified in acquitting the respondent/ accused. Thus, he has prayed that impugned judgment of acquittal dated 29.3.2010 being erroneous and bad in law be set aside and respondent/ accused be convicted and sentenced for the offences under Sections 25(1B)(b) of Arms Act and Section 5 of Explosive Substance Act.
4. I have heard learned Government Advocate and perused the impugned judgment and perused Trial Court record.
5. Respondent/ accused was charged for commission of offences under Section 25(1B)(b) of Arms Act and Section 5 of Explosive Substance Act, for possessing an illegal iron knife of description having total length of 18", handle 5", blade - 13" and width 2" and 2 live bombs for killing pig.
6. On a perusal of evidence of Sandeep Kumar Dubey (P.W.3) independent witness of seizure memo (Exhibit P/3) and arrest memo (Exhibit P/4), it is apparent that he has turned hostile and has not supported the recovery of the aforesaid articles from the possession of respondent/ accused.
7. S.I. Smt.Sushmit Niyogi (P.W.5) in her evidence deposed that on 30.3.2009, she was posted as Incharge of Rampur Chowki, Police Station Gorakhpur. On the basis of secret information received from informant, she along with Constable Ravishanker, Sanju Sonkar and Sandeep Dubey reached on the place stated by the informant and apprehended the accused. Accused had introduced himself as Prashant Singh. In his search one knife and two live bombs (used to kill pig) were seized from the pocket of the pant of accused. Seizure memo (Exhibit P/3) was prepared. She further stated that seized bombs were disposed off by the Bomb Disposal Squad and were sent for chemical examination to F.S.L., Sagar.
8. The evidence of Sushmita Niyogi (P.W.5) to some extent finds corroboration from the evidence of Sanju Sonkar (P.W.4). He has stated that Prashant Singh was apprehended by the Police and in search two live bomb and one knife were seized from his pocket and seizure memo (Exhibit P/3) was Signature Not Verified SAN Digitally signed by DEEPA MISHRA Date: 2022.04.13 17:13:00 IST prepared before him. But in cross examination he has stated that it was a flick 3 knife. On a perusal of seizure memo Exhibit P/3 and evidence of Sushmita Niyogi (P.W.5) it is apparent that seized knife was not a flick knife. He has admitted that seized articles were not sealed before him. The evidence of Sanju Sonkar (P.W.4) that seized knife was a flick knife makes his evidence shaky because seized knife is not a flick knife.
9. In her cross examination Sushmita Niyogi (P.W.5) has admitted that seal impression was not marked on seizure memo (Exhibit P/3). She has candidly admitted that seized articles were not sealed on the spot and due to that she has not mentioned the same in seizure memo. She further stated that a letter was sent to Bomb Disposal Squad for defusing the seized bombs but she has not filed the copy of that letter with charge sheet.
10. Learned Trial Court in para 15 of its judgment placing reliance on the case of Samrath Madhuriya and others Vs. State of M.P. - 2004(2) MPHT 60 has concluded that where prosecution has failed to produce seized articles before the Court, seizure of such articles cannot be relied on.
11. In this case prosecution has failed to produce seized articles before the Trial Court at the time of examination of seizure witnesses and where prosecution has failed to produce the seized articles like knife before the Trial Court, acquittal of accused was recorded by this Court in the case of Kalebabu Vs. State of M.P. - ILR 2008 MP Note 44 and it was held that where arms seized in contravention of Section 4 which was alleged to be seized from the possession of appellant was not produced before the Trial Court and was not marked as an article, oral evidence regarding features and specification was not worth admission.
12. In Ram Kumar Vs. State of M.P. ILR 2012 MP 752 where independent witnesses turned hostile and investigation officer did not specifically depose that weapon was seized by seizure memo and seized weapons were not produced before the Court, seizure of weapon was not found proved. In the case in hand, knife seized was not produced before the Trial Court at the time of Signature Not Verified evidence of seizure witnesses. As such Trial Court was justified to hold that SAN Digitally signed by DEEPA MISHRA seizure of weapon is not proved. In this case two live bombs along with a knife Date: 2022.04.13 17:13:00 IST are alleged to have been seized on 30.3.2009. So called letter which has not been 4 produced before the Trial Court, was sent to the Bomb Disposal Squad on 15.4.2009 but bombs have been disposed of by the Bomb Disposal Squad on 25.4.2009. There is no evidence on record that in the meantime, where such bombs were kept by the Police. There is no evidence on record and no explanation has been offered by prosecution as to why letter for disposal of bomb was not sent then and there. In such circumstances, I am of the view that learned Trial Court has not committed any error in disbelieving the evidence of prosecution witnesses and in reaching to the conclusion that prosecution has failed to prove its case beyond all reasonable doubts.
13. Thus, having scrutinized the evidence of prosecution witnesses and case of prosecution, I am of the considered view that learned Trial Court has not committed any error in recording the acquittal of accused Prashant Singh for commission of offence under Sections 25(1B)(b) of Arms Act and Section 5 of Explosive Substance Act.
14. Thus, no case is made out to interfere in the impugned judgment of acquittal recorded by the learned Trial Court. Hence, the State appeal being devoid of merits, is dismissed.
(DINESH KUMAR PALIWAL) JUDGE mrs. mishra Signature Not Verified SAN Digitally signed by DEEPA MISHRA Date: 2022.04.13 17:13:00 IST