Chattisgarh High Court
Hadma Maadvi vs State Of Chhattisgarh on 7 September, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2023:CGHC:22412-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 701 of 2023
Hadma Maadvi, S/o Baaman Maadvi, Aged about 35 years, R/o
Kalepal Patelpara, Chowki-Pakhnar, P.S. Darbha, District Bastar
(C.G.)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh, through Station House Officer, Police
Station, Darbha, Disrict - Bastar (C.G.)
---- Respondent
(Cause Title taken from Case Information System)
------------------------------------------------------------------------------------- -
For Appellant : Ms. K. Tripti Rao, Advocate.
For Respondent-State : Ms. Madhunisha Singh, Dy. Adv. General.
-------------------------------------------------------------------------------------
Hon'ble Shri Ramesh Sinha, Chief Justice and
Hon'ble Shri N.K. Chandravanshi, Judge
Judgment on Board
(07.09.2023)
Per N.K. Chandravansh, J.
1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 26.11.2022, passed by the learned Special Judge, (NIA Act / Scheduled Crime), District - Bastar (C.G.) in Special Sessions Case No. 16/2018, whereby the appellant- accused has been convicted and sentenced in the following manner :-
Conviction Sentence
U/S 147 of the IPC RI for six months and to pay fine of
Rs.300/-, in default of payment of fine, to further under RI for 15 days.
Neutral Citation 2023:CGHC:22412-DB 2 U/S 148 of the IPC RI for one year and to pay fine of Rs.500/-, in default of payment of fine, to further undergo RI for one month U/S 307 read with Section RI for seven years and to pay fine 149 of IPC of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months U/S 25 & 27 of the Arms Act RI for 02 years & 03 years and to pay fine of Rs. 500/- & Rs.1,000/-, respectively, in default of payment of fine, to further undergo RI for 2-2 months, respectively.
U/S 4 & 5 of Explosive Rigorous imprisonment for 03 & 02 Substances Act years and to pay fine of Rs.1,000/-
& Rs.700/-, respectively, in default of payment of fine, RI for 2-2 months respectively.
U/S 38(2) & 39(2) of Unlawful Rigorous imprisonment for 05 & 05 Activies Act years and to pay fine of Rs.1,000/-
-Rs.1,000/-, respectively, in default of payment of fine to further undergo RI for 2-2 months, respectively.
All the sentences has ordered to run concurrently.
2. Case of the prosecution, in brief, is that on 27.10.2017 upon receiving information regarding unlawful assembly of Maoists, police force of Police Station Pakhnar went to village Kalepal & Chikpal. At the said places, Maoists were already present with a common intention to harm the police personnel and loot their ammunitions. On seeing the police force, they started intense firing. In self defence, police party also started firing and the Maoists upon knowing very well that they would not be able to dominate the police just with 40-45 members, they fled away from the place of incident. After which, the police party carried out the search on the place of occurrence, whereby they intercepted the present appellant, who was part of Maoist group, Katekkalya, but disguised as a Neutral Citation 2023:CGHC:22412-DB 3 civilian and was carrying full loaded gun, thereafter, more incriminating materials i.e. 70 number spikes , 05 -05 kg of tiffin bomb, wire , three pithhu bag containing daily use items, were recovered from the spot and when the present appellant asked about his identity, he told his name as Hadma Madvi, S/o Baman Madwi and he is a member of Janmalishiya of Darbha Katekalyan Area Committee of Darbha Division. He further stated that he suffered injuries on his knee, thereafter, he was sent for primary treatment. After some time, when police again searched in the aforesaid area, then one person tried to flee away from the spot after seeing the police, thereafter, police caught hold him and upon interrogation, he told that his name is Madda Madvi and he is also the member of Janmalishiya of Darbha Katekalyan Area Committee of Darbha Division, thereafter, he was arrested and taken into judicial remand whereas accused Hadma Maadvi, after treatment, was also taken into judicial remand. On the basis of aforesaid facts, crime No. 65 of 2017 was registered against the appellant. After usual investigation charge-sheet under Sections 147, 148, 149,307 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Section 38(2) & 39(2) of the Unlawful Activities Act against the appellant & co-accused Madda Madvi before the Special Court, N.I.A. Act, Bastar, at Jagdalpur.
3. Charges under Sections 147, 148, 307/149 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Section 38(2) & 39(2) of the Unlawful Activities Act, were framed, read Neutral Citation 2023:CGHC:22412-DB 4 over and explained to the appellant & co-accused Madda Madvi, they abjured their guilt and entered into defence by submitting that they are innocent.
4. In support of its case, prosecution has examined as many as 13 following witnesses: -
Name of witness Serial number
of witness
Dholuram Baghel PW-1
Anant Miras Kispotta PW-2
Dhansai Kashyap PW-3
Gupteshwar Kashyap PW-4
Mahesh Kumar PW-5
Bhuarya
Shivshankar Hurra PW-6
Raghuraj Nag PW-7
Ram Kumar Rawte PW-8
Samdev Nag PW-9
Anand Ram Netam PW-10
Sushil Kumar Ekka PW-11
Santosh Kumar PW-12
Verma
Jai Singh Nag PW-13
Anil Kumar Baghel PW-14
Smt. Savita Uikey PW-15
Abid Khan PW-16
Dr.T.L. Chandra PW-17
Ravi Kumar Baiga PW-18
Dr. Sandeep Singh PW-19
Deepak Srivas PW-20
Nimesh Baraiya PW-21
Vishnu Prasad Yadav PW-22
Rakesh Kumar Kurre PW-23
Dr. Yulendra Yark PW-24
Neutral Citation
2023:CGHC:22412-DB
5
5. Beside the aforesaid ocular evidence, prosecution has exhibited the following documents in its evidence :-
Type of document Exhibit or Article number Seizure of Tiffin Ex.P-1 Bomb, iron rod, blank khokha & naxalite literature Seizure of Blood Ex.P-2 stained soil & plain soil Seizure of soil Ex.P-3 containing gunpowder from two sealed explosive sites Seizure of plain Ex.P-4 soil containing gunpowder from two sealed explosive sites Arrest memo of Ex.P-5 accused Hadma Madvi Arrest memo of Exs.P-6 accused Madda Madvi @ Mandavi Memorandum Ex.P-7 statement of accused Madda Madvi @ Mandavi Property seizure Exs.P-8 to P-11 memos of nitric acid in sealed box, iron axe, soil containing gunpowder from explosive site & plain soil containing gunpowder from explosive site, Memo regarding PW-12 sending of seized plain soil & Soil containing gunpowder Neutral Citation 2023:CGHC:22412-DB 6 Memo with regard Ex.P-13 to sending seized articles to police concerned Station House Officer Suggestion letter Ex.P-14 for destroying the seized tiffin bombs Examination report Ex.P-15 of blank khokha Memo regarding Ex.P-16 seized fully loaded gun Panchnama of Ex.P-17 spot map prepared by patwari Spot map Ex.P-18 prepared by Patwari Memo for Ex.P-19 submitting spot map Order of District Ex.P-20 Magistrate dated 28.02.2018 FSL report Ex.P-21 Un-numbered Ex.P-22 Dehati Nalishi Spot map of place Ex.P-23 of incident Seizure memo of Ex.P-24 fully loaded gun and daily used item Information of Exs.P-25 & P-
arrest of accused 26 persons Memo for Ex. P-27 & 28 providing spot map Report of Medical Ex.P-29 Officer Prosecution Ex.P-30 sanction order dated 27.03.2018 Memo to Armorer Ex.P-31 Neutral Citation 2023:CGHC:22412-DB 7 regarding empty the gun Memo to Medical Ex.P-32 Officer regarding opinion about accused Hadma Maadvi Memo to CMO Ex.P-33 regarding opinion about accused Hadma Maadvi First Information Ex.P-34 Report Memo to Ex.P-35 Superintendent of Police regarding prosecution sanction Memo for Ex.P-36 examination of seized weapon Memo for Ex.P-37 examination of seized tiffin bomb Memo for Ex. P-38 destruction of tiffin bomb Memo regarding Ex.P-39 permission for destruction of seized tiffin bomb Final Report Ex.P-40
6. Learned Special Court, vide its impugned judgment dated 26.11.2022, after appreciating the oral and documentary evidence available on record, acquitted the co-accused Madda Madvi of the aforesaid offences whereas convicted the present accused/appellant for the offences under Sections 147, 148, 307/149 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Neutral Citation 2023:CGHC:22412-DB 8 Section 38(2) & 39(2) of the Unlawful Activities Act and sentenced as mentioned in opening paragraph of the judgment. Against which, this appeal has been preferred by the present appellant questioning the impugned judgment of conviction and order of sentence.
7. Learned counsel appearing for the appellant would submit that the appellant has wrongly been convicted under Section 307 read with Section 149 of the IPC, as no ingredients of Section 307 of the IPC was made out against the appellant, as none has been proved to be injured by the appellant. She submits that appellant was arrested in the injured condition and false seizure of alleged loaded gun has been made from him, and that seized gun was not sent for any chemical examination. She submits similarly situated co-accused - Madda Madvi has already been acquitted by the trial Court , as such, the present appellant may also be acquitted of the charges levelled against him. She alternatively submits that accused/appellant has already remained in jail since his arrest i.e. from 31.10.2017, till date, thus, he has completed more than 5 years, 10 months & 7 days of jail sentence, whereas the maximum sentence which has been awarded to him is of 07 years, therefore, the criminal appeal may be allowed by acquitting the appellant/accused of the alleged offences.
8. On the other hand, learned counsel for the State while supporting the impugned judgment would submit that upon receiving secret information regarding unlawful assembly of Maoists, police force of Police Station Pakhnar went to villes Kalepal & Chikpal and at the said place, Maoists Neutral Citation 2023:CGHC:22412-DB 9 including the present appellant were already present with a common intention to harm the police personnel and loot their ammunitions and after seeing the police party, they started firing indiscriminately, as such, learned Special Judge is absolutely justified in convicting and sentencing the accused/appellant for the alleged offences, which does not call for any interference, as such, the appeal filed by the appellant is liable to be dismissed.
9. We have heard learned counsel for the parties and perused the material available on record including record of trial Court.
10. In the instant case, almost all the substantive witnesses examined by the prosecution, to prove the charges levelled against the appellant, are police personnel. Since, the incident occurred in the forest area of Bastar, that too, while searching by the police party, hence, presence of independent witnesses are not expected in such cases.
11. Dholuram Baghel (PW-1), who is police Constable, has stated in his deposition recorded in the Court that, on 27.10.2017 he along with Incharge of Police out post - Pakhnar, D.R.G. Incharge Shivshankar Hurra and others went for searching Kalepal, Madenar by foot, at about 12.30 pm when they reached between forest and hill, then naxalites, who were sitting there in ambush, looking to the police personnel, they started intense firing, hence he along with other police personnel also fired upon them on their defence. He has further stated that this encounter lasted about ½ hour, but feeling that police in personnel are heavily upon them, naxalites fled away from the spot. He has further stated that on being search, they seized one Neutral Citation 2023:CGHC:22412-DB 10 Bharmar Bandook , pitthu, barud and various other articles like pointed rod, bow & arrow, tiffin bomb, wire & battery, etc. police party also caught a person, who told his name as Hadma Maadvi (present appellant) that person had sustained injuries, hence, he was brought treated by the doctor and, thereafter, he was admitted in Maharani Hospital.
12. Aforesaid deposition of Dholuram Baghel (PW-1) has been well supported by Anant Miras Kispotatta (PW-2), Ghanshyam Kashyap (PW-3), Gupteshwar Kashyap (PW-4), Mahesh Kumar Bhuarya (PW-5) & Shivshankar Hurra (PW-6) and Abid Khan (PW-16), who had also gone for searching and participating in the action taken by the police personnel of exchange firing.
13. Substantive negative suggestions taken by defence counsel from aforesaid witnesses have been denied by them and nothing has been elicited in their cross-examination to discard their deposition made in the examination-in-chief.
14. Dr. Sandeep Singh (PW-19) has supported the fact in his deposition that on 27.10.2017, appellant Hadma Maadvi was brought before him at Medical College, Dimrapal, Jagdalpur, as he has sustained injuries on his knee and he was treated there. His statement is also well supported by medical report (Ex.P-29) whereby he has reported that due to condition of appellant, he is not found to be entered from hospital to jail. Thus, statement made by aforesaid police personnel that appellant was found injured on the spot has well supported by Dr. Sandeep Singh (PW-19).
Neutral Citation 2023:CGHC:22412-DB 11
15. Ravi Kumar Baiga (PW-18), who is the Investigating Officer, has proved Dehati Nalishi (Ex.P-22), which he has lodged on the spot. He has also stated that from the spot he has seized tiffin bomb, 5 kg each, battery, wire, bowie traps spiks, pointed rod, bow & arrow, blank cap of cartridge of AK 47, Insa, SLR, naxalite literature, utensils, daily needs articles, medicines, shop, blood stained and simple soil & nitric acid vide Exs. P-4, P-2 & P-8. He has also stated that he has seized one Bharmar Bandook, 30 gms Barud, one pithhu bag, daily needs articles like, shop, biscuit & comb etc. from the appellant vide Ex.P-24. He has further stated that vide seizure memo Exs. P-3 & P-10, he has seized soil containing Barud (gunpowder) and plain soil and vide arrest memo (Ex.P-6), he arrested the appellant on 30.10.2017.
16. Raghuraj Nag (PW-7), Samdev Nag (PW-9), Anand Ram Netam (PW-10) & Sushil Kumar Ekka (PW-11) are the seizure witnesses of respective seizure memo, which they have proved in their depositions.
17. Dr. Ulendan Yark (PW-24), who was S.D.O. Keshlur (Sub Divisional Officer, Police), at the time of incident, has deposed that vide memo Exs. P-36, P-37, P-38 & P-39, he had sent aforesaid seized articles for examinations, which were examined by Santosh Kumar Verma (PW-12), Jaisingh Nag (PW-13) & Dr. T.L. Chandra (PW-17), which they have proved vide report prepared and proved by them. As per their report, aforesaid live arms and ammunitions have been seized from the appellant and from the spot along with various other articles of daily need.
Neutral Citation 2023:CGHC:22412-DB 12
18. Substantive evidence brought on record have not been challenged in cross-examination by aforesaid witnesses. In the instant case, it has been proved by the witnesses that the appellant was caught hold on the spot in injured condition and Bharmar Bandook and various other ammunitions were seized from him and further such various arms & ammunition have also been seized from the spot itself, therefore, we have no hesitation to hold that appellant was member of naxalite group, who made the fire to kill the police personnel. Thus, in the opinion of this Court, the trial Court has considered all the aspects of the matter in detail, while convicting the accused/appellant under Sections 147, 148, 149,307 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Section 38(2) & 39(2) of the Unlawful Activities Act, which is based on proper appreciation of evidence available on record, thus, we uphold the judgment of conviction & order of sentence of appellant for the offences under Sections 147, 148, 149 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Section 38(2) & 39(2) of the Unlawful Activities Act by the trial Court /Special Court. We also uphold/maintained the conviction of the appellant for the offence under Section 307 of the IPC.
19. So far as sentence part of the appellant for the offence under Section 307 of the IPC is concerned, as per evidence available on record, in alleged exchange of firing made by naxalite party/ appellant, none of the police personnel have reported to be injured, but to prove the offence under Section 307 IPC, sustaining injuries is not required to be necessarily proved, particularly, when, assault is made by Gun and various other Neutral Citation 2023:CGHC:22412-DB 13 explosive, as has been occurred in the instant case. But, we can also not oversight the fact that appellant/accused has remained in jail since 31.10.2017, till date. Considering the totality of the facts of the case, no useful purpose would be served in keeping him in detention any further and interest of justice would be served if he is sentenced to the period already undergone by him.
20. In the result, the criminal appeal is partly allowed. Conviction & sentence of the impugned judgment under Sections 147, 148, 149 of the IPC, Section 25 & 27 of the Arms Act, Section 4 & 5 of the Explosive Substance Act and Section 38(2) & 39(2) of the Unlawful Activities Act is maintained, as also imposition of punishment of fine is maintained. We also maintained conviction of the appellant under Section 307 of the IPC but jail sentence imposed upon him for the offence under Section 307 of the IPC is reduced to the period already undergone by him i.e. from the date of his arrest i.e. 31.10.2017, till passing of this judgment. Rest of order / direction passed by the trial Court shall remain intact.
21. Since the appellant is reported to be in jail, he be set free forthwith, if not required in any other case.
Sd/- Sd/-
(N.K.Chandravanshi) (Ramesh Sinha)
Judge Chief Justice
Dubey