Madhya Pradesh High Court
Vesta vs State Of Mp on 20 January, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
-1- HIGH COURT OF MADHYA PRADESH Criminal Revision No. 3882/2019 (Vesta Vs. State of Madhya Pradesh) Indore, Dated: 20/1/2020 Shri Anupam Chouhan Advocate for applicant. Shri Akash Sharma learned GA for State.
This revision under Section 397/401 of Cr.P.C. has been filed against the judgment dated 12/4/2019 passed by JMFC Alirajpur in criminal case no. 61/2017 whereby applicant has been convicted under Section 25(1B)(b) of Arms Act and sentenced to one year with fine of Rs. 500 and also against the judgment dated 24/7/2019 passed by Sessions Judge Alirajpur whereby criminal appeal has been dismissed and aforesaid conviction has been affirmed.
As per prosecution story on 19/1/2017 Sub Inspector Ajay Vaskle (PW-4) was posted at Thana Alirajpur. He received an information that the present applicant is roaming in the bus stand with Falia. He reached to the bus stand and found that the present applicant is terrifying the public by showing falia in his hand. With the help of Constable (PW-3) he arrested the applicant who has failed to produce any license under Arms Act. Since the length of falia is more than 16 inch which was under prohibited category therefore, FIR no. 22/17 was registered against the present applicant.
After completing the investigation challan was filed. The prosecution examined Sumaria (PW-1), Mukesh (PW-2), Head Constable Narendra Hirve (PW-3) and Ajay Vaskle (PW-4). Out of four witnesses, two independent witnesses PW-1 & PW-2 were turned hostile and did not support the case of prosecution in respect of arrest of applicant and seizure of falia.
Learned JMFC vide judgment dated 12/4/2019 has convicted the present applicant under Section 25(1B)(b) of Arms Act only on the basis of statement of PW-4. Against the aforesaid judgment, applicant preferred appeal before the Sessions Judge and vide -2- judgment dated 24/7/2019 the aforesaid conviction has been affirmed.
Learned counsel for applicant submits that applicant is first offender and he is resident of village Panvani, he was carrying falia for his safety purpose, he has not committed any offence and earlier also no case is pending against him. He is in jail since last approximately 6 months, therefore, the period of one year of sentence be reduced to the period already undergone. He submits that the applicant is not assailing the findings of trial court on merits though he has a good case to assail the said findings.
Government Advocate opposes the prayer by submitting that under Section 25(b) there is a minimum sentence of one year which may extend to three years, therefore learned courts below have awarded the minimum sentence to him and the revision petition may be dismissed.
It is correct that under Section 25(1B)(b) of Arms Act the accused shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine. But as per the proviso the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.
In the matter of Sunder Vs. State (N.C.T. Of Delhi) reported in AIR 2002 SC 2764, the Hon'ble Supreme court set aside the conviction as the independent witnesses have turned hostile by observing as under:
"6. In support of the second contention, learned counsel for the parties have taken us through the testimony of PW 2,3 and 6. PW-2 is a Head constable Chand Singh, PW-3 is Inspector Ram Pal Sharma and PW-6 is S.I. Om Prakash. The testimony of PW-3 has no relevance in so far as the recovery from the appellants is concerned. According to the case of prosecution, knives were recovered from the -3- appellants. The recovery of knives is evidenced by recovery memos PW-2/P (in respect of Sunder) and PW- 2/Q (in respect of Satbirsingh). The recoveries were sought to be proved in the testimony of PW-2 Chand Singh. The said witness was, however, declared hostile. We have examined his testimony. It is not possible and safe to place any reliance on testimony of PW-2. The aforesaid two documents of recovery are witnessed by Head Constable Prakash Chand and ASI Rajbir Singh besides PW-2. Despite the fact that PW-2 was declared hostile, prosecution did not think it appropriate to examine the aforesaid other two witnesses of recovery memos, or at least one of them. Out of three witnesses of recovery, the senor most was ASI, other being two head constables. We have also examined the testimony of PW-6 S.I. Om Prakash. There are material contradictions in the testimony of PW-2 and PW-6. Under these circumstances we have no option but to hold that the seizure of knives from the appellants has not been proved.
In the present case both the seizure witnesses have turned hostile and the present applicant has been convicted only on the basis of statement recorded by PW-4. He is the first offender and there is no criminal antecedents against the applicant. He is in jail since last approximately 6 months and deposited the fine. During trial he was on bail and he has never misused the liberty of bail. In jail also his conduct was also good and there is no report against him. He is facing trial since 2017 therefore, period of jail sentence from one year can safely be reduced to the period already undergone with enhancement of fine from Rs. 500 to Rs. 2000/-.
The revision petition is partly allowed.
The applicant be released from jail if he is not required in any other case. Record of the courts below be sent back alongwith copy of this order for information.
(Vivek Rusia) Judge BDJ Digitally signed by Bhuneshwar Datt Date: 2020.01.20 15:24:34 -08'00'