Madhya Pradesh High Court
Mohan Raghuvanshi vs The State Of Madhya Pradesh on 29 August, 2019
Author: Shailendra Shukla
Bench: Shailendra Shukla
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HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Criminal Revision No.3172 of 2019.
(Mohan s/o Radheshyam Raghuvanshi v/s State of Madhya Pradesh)
Indore, Dated : 29.08.2019 :-
Shri Nilesh Dave, learned counsel for the
applicant - Mohan Raghuvanshi.
Shri Anil Ojha, learned Public Prosecutor for the
Respondent/State.
The submissions were to be made on suspension application [I.A.No.5289/2019], however, the learned counsel has sought to make final submissions on the revision application filed by him.
Prayer is allowed.
The revision is admitted for final hearing. Final submissions were made.
O R D E R THIS revision application under Section 397 read with Section 401 of the Code of Criminal Procedure has been filed by the applicant against the order passed by First Additional Sessions Judge, Dhar in Criminal Appeal No.68/2018 on 28.06.2019, whereby the conviction and sentence imposed upon the applicant by the Trial Court i.e. Judicial Magistrate, First Class, Dhar in RCT No.902261/2015, has been affirmed.
[2] As per the prosecution story, on 09.02.2015 when Amit Solanki was posted as Sub Inspector in Police Station Kotwali, Dhar, he received an information that a person wearing black jacket and white sports shoes is carrying an illegal fire arm and may commit some crime. Shri Solanki after recording the information in Rojnamcha proceeded towards the spot along with Constable Manish
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Mishra and found accused whose dress matched with the description received from the informant. Mohan was apprehended and was searched apprising him of the information received against him. His search revealed a country made pistol with two cartridges. The applicant was not possessing any licence, he was, therefore, arrested and arm and ammunition were seized from him. Matter was registered in Police Station Kotwali, Dhar. After investigation, charge-sheet was filed under Sections 25 and 27 of the Arms Act. The Trial Court vide judgment dated 07.05.2017 written an order of conviction sentencing the applicant to undergo 2 years RI with fine of Rs.2,000-00 and to suffer default imprisonment on non-payment of fine. As already described, the appellate Court has affirmed the order of conviction and sentence.
[3] The applicant in this revision application has stated that there are many lacune in the evidence which have not been accounted for by the Trial Court. It has been stated that the seized items were not sealed properly; that no application of mind was observed while granting the sanction to prosecute the applicant; that the fire arm was not tested appropriately by firing the bullet from the same; that there was violation of Section 52 of the Code of Criminal Procedure and lastly that both the independent witnesses have turned hostile and in view of these lacune, the applicant should have been acquitted.
[4] Heard learned counsel for the State as well who has submitted that no impropriety apparently been committed by the Presiding Officer; that the prosecution evidence is based on concrete facts and it is an open and
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shut case requiring no intervention whatsoever.
[5] A question before this Court is whether, in view of submissions made by the learned counsel, the applicant deserves to be acquitted and that Courts below did not take into account so called infirmities which have been mentioned in the grounds contained in the revision application ?
[6] A perusal of original record shows that the prosecution has examined 7 witnesses in all. The two independent witnesses, namely Naushad (PW-1) and Mahesh (PW-2) have turned hostile and rest of the witnesses are police witnesses. The Trial Court has referred to the citation of Nathu Singh v/s State of M.P. [AIR 1973 SC 2783] and has observed that the prosecution case can still be found proved even though independent witnesses have not supported the prosecution story. In view of this citation, it is clear that despite independent witnesses having turned hostile, the prosecution story can still be found proved from the depositions of other witnesses.
[7] Shri Amit Solanki (PW-7) has, in his deposition, corroborated the prosecution story that an informant had given a lead regarding the presence of applicant describing the dress which has been worn by the person, who as per information was carrying fire arm. Shri Solanki states that he went to the spot with Constable Manish and located the person whose dress matched with that given by the informant and he was subjected to search and it was revealed that he was carrying an iron pistol and two cartridges, one in the chamber and the other in the magazine of the pistol. He states that after recovery, the
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pistol was sealed. The seizure memo is Ex.P/1. He states that bottom of both the cartridges carried an inscription K.F. 7.65. The Rojnamcha written while proceeding towards the spot is Ex.P/9 and Ex.P/10 is the Rojnamcha written after return from the spot. These Rojnamchas show that information was received at 7.00 PM on 09.02.2015 and recovery was made from accused at 7.50 PM on the same date. A perusal of the seizure memo Ex.P/1 shows that it has been mentioned therein that the fire arm was sealed after seizure. Drawing of fire arm has been drawn in Ex.P/1. Two bullets have also been depicted in the same diagram.
[8] This witness has been supported by Manish Mishra (PW-4). He states that on 09.02.2015 while he was posted in Police Station Kotwali, Dhar as a Constable, he met Amit Solanki (PW-7) at about 7.00 PM who intimated him about the information received and directed him to accompany him. The person revealed his name as Mohan. He was told about the information received against him and he was searched which revealed a black coloured country made pistol in the jacket of accused which on checking revealed two bullets inside. Mohan when asked about licence for possessing fire arm, Mohan denied any such licence in his possession. He admits in para 8 of his cross- examination that the accused did not try to escape when he saw the witnesses. He admits that while Mohan was subjected to search, no option was given to the accused to search the members of the raiding team. He has been asked a question as to whether he had mentioned in his police statement that the pistol was found in the jacket of the accused, he answers that he had mentioned in his police
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statement such facts. However, in his return Rojnamcha it has been mentioned by him that revolver was kept by Mohan at the back side of his waist.
[9] The learned counsel submits that this serious discrepancy making the presence of Manish Mishra (PW-4) suspicious at the spot.
[10] Considered.
[11] Despite the discrepancy as shown above in
the statements of Manish Mishra (PW-4), it cannot be stated that he was not present on the spot. Amit Solanki (PW-7) himself stated that he had asked Manish Mishra to accompany him to the spot. It may be that due to efflux of time the exact place in the body where the fire arm was kept by the accused may have been forgotten by Manish Mishra but it cannot be stated that he did not go to the spot and see the incident himself.
[12] Two important witnesses remained to be considered. These are Sunil (PW-3) who has checked the fire arm and Purushottam Shinde (PW-5) who has proven the document of sanction to prosecute. It would be appropriate to consider the statements of witness Sunil first who states that he received a country made pistol and two live cartridges on 24.05.2015. The pistol was sealed in a white cloth. The action mechanism of the pistol was in complete work order. Both the cartridges were of brass on whose bottom words K.F. 7.65 have been inscribed. The pistol was found to be in working condition. The Investigator's report is Ex.P/5. In cross-examination also he states that the fire arm was received in a cloth packet carrying lac seal and after the inspection of the arm, the
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same was covered with the same cloth and cloth was freshly sealed. The old seal was kept inside the cloth bag. He admits that he had only checked the mechanism and had not fired.
[13] Purushottam Shinde (PW-5) has stated that sanction to prosecute the accused was given by the District Magistrate in Case Diary No.91/2015. The sanction letter is exhibited as Ex.P/6. He denies the suggestion that Ex.P/6 is in fact a proforma. The witness states that there is no proforma as such. He states that the District Magistrate was not available and, therefore, the charge of the District Magistrate was with Shrikant Banot.
[14] Ex.P/6 was perused. In this document it has been mentioned that the firm arm and the cartridges were presented in sealed state and after due consideration sanction to prosecute has been afforded. It does not appear that Ex.P/6 is couched in a language of a fixed proforma. Thus, application of mind is evident in Ex.P/6. Thus, the sanction has apparently been given appropriately.
[15] The learned counsel, has bolstered his submissions and has relied upon few judgments. In the case of Pappe @ Sukhvinder Singh v/s State of M.P. [2007 (III) MPWN 56] it was found that both the prosecution witnesses had turned hostile, further the articles seized were not found to be in sealed cover. The seal was found to be broken when placed before the sanctioning authority. All these lacune resulted in acquittal of the accused.
[16] In the present case in hand, the Trial Court has already referred to citation of Pappe @ Sukhvinder Singh (supra) in which it has been laid down that despite the fact the independent witnesses have not supported the
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prosecution story, the prosecution story could still be found proved. It is not the case here that the seal applied on the cloth was found to be broken up. Thus, the facts of the case in hand do not match with the facts of the citation submitted.
[17] The second citation is that of Gajram v/s State of M.P. [2016 (III) MPWN 62]. This case is based upon an Apex Court judgment of Nand Kishore v/s State of Haryana [1998 SCC (Cri) 568] in which it has been held that in absence of proof of seized arm and ammunition being properly secured and sealed and thereafter deposited in the Malkhana and in view of the armourer's evidence that the case property when received by him was in loose condition, the possibility of tampering with the weapon could not be ruled out.
[18] In the case in hand, there are no such infirmities as displayed in the facts of the Apex Court judgment of Nand Kishore (supra). Therefore, this citation is also not applicable.
[19] The other citations of same nature are Rakesh v/s State of M.P. [2005 (II) MPWN 46].
[20] A citation on the point of improper sanction has been referred to by the learned counsel. In Chirku @ Lakhanlal v/s State of M.P. [2010 (I) MPWN 38] it was found that the sanction was granted even though the fire arm and the cartridges were not placed before the sanctioning authority and, therefore, sanction was considered to be invalid. However, in the case in hand, the fire arm and the cartridges have been shown to have been sent in the letter Ex.P/6.
[21] The learned counsel has also pointed out
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that the provisions of Section 52 of the Code of Criminal Procedure was not followed. He has cited Raju Dubey v/s State of M.P. [1998 (1) JLJ 236] in which it has been laid down that provisions of Section 52 of the Code of Criminal Procedure should be followed and the weapon, after seizure, should be sealed and sent to Magistrate for sanction and when the weapon is not sealed on the spot, seizure becomes doubtful. It has also been laid down that sanctioning officer should see the weapon and should satisfy that offence has prima-facie been made out under Section 3 of the Arms Act.
[22] It has been found in this matter in hand that after seizure, the weapon and the cartridges were secured and sealed in a white cloth.
[23] The Arms Moharrir Sunil (PW-3) has stated that he was posted as Arms Moharrir in DRP Line on 25.05.2015 and on this date a country made pistol and two live cartridges were produced before him by Head Constable Navin Joshi. The fire arm and the cartridges were found sealed in a white cloth. The seal was opened and it was inspected by Arms Mohorir as to whether it is functional. He found that the pistol was in working condition and both cartridges were also fit for being fired from pistol. The report is Ex.P/5. He states that after the inspection, the fire arm and cartridges were resealed in the same cloth.
[24] The Supreme Court in the case of Bilal Ahmed Kaloo v/s State of A.P. [(1997) 7 SCC 431] has held that if it is found that the particulars given in seizure memo tallied with the weapon which was examined by the ballistic expert, then non-sealing is inconsequential. As far as the requirement of test firing of the fire arm is concerned, the
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Supreme Court in the case of Harnek Singh v/s State of Punjab [(1991) 1 SCC 132] has held that even though the fire arm was not test fired, the working condition of the weapon could still be determined. Thus, no requirement was there to test fire the fire arm.
[25] After duly considering the evidence, it is found that the prosecution has been able to prove beyond reasonable doubt the charges framed against the applicant. The conviction under Section 3 read with Section 25 (1-b)
(a) of the Arms Act is thus maintained. As far as the sentence is concerned, the minimum mandatory sentence is one year and in view of the facts and circumstances of the case and the accused, the substantive jail sentence of the accused is being reduced from two years to "one year RI"
with no change in the fine amount and default jail sentence.
[26] Consequently, this criminal revision stands rejected in the terms of conviction but stands allowed partly in terms of sentence. The disposal of property shall be as per the directions given by the Courts below.
[27] A copy of this order be sent to the Trial Court along with the records for due compliance.
[ Shailendra Shukla ] JUDGE (AKS) Digitally signed by Anil Kumar Sharma Anil DN: c=IN, o=High Court of Madhya Pradesh Bench Indore, postalCode=452001, Kumar st=Madhya Pradesh, 2.5.4.20=753b65d225a974 6e99a75a441cdc964aa7a1 Sharma 58d438793e7f32467b3557 45f3ae, cn=Anil Kumar Sharma Date: 2019.09.05 11:40:09 +05'30'