Madhya Pradesh High Court
Shyam Bharia And Ors. vs State Of M.P. on 9 November, 2004
Equivalent citations: 2005CRILJ1907
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This appeal has been preferred by the appellants against their judgment of conviction and order of sentence passed by the trial Court convicting them under Sections 399, 401, IPC and also under Section 25(1B)(a) of Arms Act.
2. In brief, the case of the prosecution is that on 19-3-1999 Station House Officer Incharge received information from the informant that accused persons near the brim of Kachha road behind the building of Krishi Upaj Mandi assembled to commit dacoity and were making its preparation, as a result of which they were caught hold at the spot. At that juncture, they were talking to each other and were found making preparation to commit dacoity. Two persons on account of darkness managed to escape. At spot from appellant Shyamu Bharia 12 bore Katta and two Cartridges, from appellant Semu, sword and from appellant Guru Prasad one 'Tangi' was recovered. These weapons were seized.
3. The 'Katta' which was recovered was sent to ballistic expert at Sagar, where it was found to be operational and cartridges were found to be live cartridges. After obtaining sanction from District Magistrate, a charge-sheet was submitted in competent Court, which on its turn, committed the case to the Court of Sessions and from where it was received by the trial Court for trial.
4. The trial Court framed charges punishable under Sections 399, 402, IPC against appellants. Appellant Shyamu Bharia, apart from charges under Sections 399, 402, IPC was further charged under Section 25(1B)(a) of the Arms Act. Appellate Semu was also further charged under Section 25(1B)(b) of the Arms Act for keeping sword having its blade 26" long and 2" wide.
5. Accused persons denied the charges and requested for trial. The trial Court after recording the evidence found all the charges to be proved as a result of which passed sentence to suffer rigorous imprisonment of seven years and three years under Sections 399 and 402, IPC respectively with fine of Rs. 1000/-, in default further R.I. of six months. Appellant Shyamu apart from his sentence under Sections 399 and 402, IPC was further convicted and sentenced under Section 25(1B)(b) of the Arms Act and has been sentenced to suffer one year R.I. and fine of Rs. 1,000/-, in default further R.I. of two months. Needless to emphasis, trial Court directed all the sentences to run concurrently. The trial Court on scrutiny of the evidence found that prosecution failed to prove its case beyond doubt against appellant Semu under Section 25(1B)(b) of Arms Act, as a result of which he was acquitted from the said charge. In this manner the appellants have preferred this appeal by assailing their judgment of conviction and order of sentence.
6. I have heard Shri D.N. Shukla, learned counsel for the appellants and Shri Shallendra Singh Bisen, Govt. Advocate, for respondent.
7. The contention of Shri Shukla, learned counsel is that the conviction of appellants is bad in law inasmuch as there is total lack of evidence in order to bring the appellants under the ambit and sweep of Sections 399 and 402, IPC. Learned counsel further contends that the charge framed against the appellant Shyamu under Section 25(1B)(a) is also not proved and, therefore, he has been illegally convicted under this section.
8. On the other hand Shri Shailendra Singh Bisen, learned Govt. Advocate, argued in support of the impugned judgment.
9. In the present case, prosecution has taken pains to examine six witnesses. Though the defence of accused persons is of false implication but they have not chosen to examine any witness in their defence. P.W. 1 A. P. Tiwari, is the ASI of police station. P.W. 2 Mohan Singh Paraste is the Patwari and is formal witness, since he has prepared spot map. P.W. 3 Rajesh Kumar Gupta and P.W. 4 Shek Sharif are hostile witnesses, P.W. 5 Rameshwar Singh is reader of District Magistrate and P.W. 6 J. B. Singh Chandel, is the Investigating Officer.
10. Indeed P.W. 1 A.P. Tiwari and P.W. 6 J. B, Singh Chandel are the star witnesses. According to statement of P.W. 1 A.P. Tiwari, he was serving on the post of ASI. On 19-3-1999 at 10.00p.m. information was received that certain miscreants are making preparation to commit dacoity, as a result of which under the leadership of Inspector J.B. Singh Chandel and other police persons along with two witnesses, they proceed to catch hold the miscreants and near by the building of Krishi Upaj Mandi they heard that certain miscreants were making conversation that they would commit dacoity in the house of one Rajeshwar Singh. According to this witness, Chandel Sahad raised alarm and directed miscreants to surrender, however, out of five miscreants, two of them managed to escape and three miscreants were caught at the spot as they surrendered before Mr. Chandel by raising their hands. These miscreants are present appellants.
11. In cross-examination, this witness has stated that after receiving information from informant, the duration to proceed to the spot was 20 minutes and the distance from Police Station to the building of Krishi Upaj Mandi is near about half km. He has further stated that the building is 200 yards away from main road. A very interesting statement has been made by this witness in cross-examination that appellants were making conversation and he heard their talk from 15-20 yards away from the building. The appellants were talking to commit dacoity. The story, as putforth by this witness, cannot be relied by any prudent man. Ordinarily nobody, would like to make any conversation in regard to commit dacoity openly in a public place that too in high tone of his voice so that strangers may hear his conversation easily. In this case, since it has been said by this witness that he heard the conversation of appellants from 15-20 yards which would mean from 45-60 feet. No prudent man would digest that openly at a public place some persons would assemble and would talk in high tone saying that they would commit dacoity in a house of a particular person. Thus, the evidence of this witness cannot be relied upon. Similar type of statement is of Mr. J.B. Singh Chandel (P.W. 6).
12. One very important fact which has been crept out from the evidence of Mr. J.B. Chandel is that he on the spot arrested appellants and their arrest memos are Ex. P/ 5 to P/7. If these persons were arrested on spot how the crime number appeared on their arrest memos. On going through the arrest memos (Ex. P/5 to P/7) of appellants, it is found that crime No. 107/99 has been mentioned which would mean that they were not arrested on spot. It they would have been arrested on spot how the crime number appeared on their arrest memos. At this juncture, I may further add that according to Mr. Chandel, not only appellants were arrested at the spot, but, from accused Shyamu one country made pistol of 12 bore and two cartridges were also recovered from the spot after his arrest. Similarly from appellant Guru Prasad, one 'Tangi' was seized from spot and from accused Semu one sword was seized from the spot. The seizure memos of articles which were seized from spot from appellants Shyamu, Guru Prasad and Semu are Ex. P/2, P/3 and P/4 respectively. On these seizure memos crime number has not been mentioned and in the column of crime number, 0/99 has been written while in arrest memos of appellants as per prosecution, they were arrested on spot. Crime No. 107/99 has been mentioned. All these documents were prepared at spot only, according to Mr. Chandel. Thus, a deep dent is put on the veracity of the story as putforth by prosecution and the serious infirmity mentioning the crime number on the arrest memos of accused persons raises a serious doubt in regard to taking part by them in the commission of offence under Sections 399 and 402, IPC. Since it has been admitted by Station House Officer Incharge that appellants were arrested at spot and their arrest memos were also prepared at the spot as well as the seizure memos of weapons were also prepared at spot and, therefore, if the seizure memos and arrest memos are kept in juxtaposition and read conjointly it would reveal that atleast one document is manufactured. In any case it gives rise to a serious doubt in regard to truthfulness of the incident and the involvement of appellants in alleged crime. It is well settled in law that suspicion, however strong it may be, cannot take place of strict proof and, therefore, since it raises a serious doubt in regard to genuineness of prosecution story, the appellants are entitled for benefit of doubt.
13. Since I have belied the story as putforth by prosecution in order to constitute offence under Sections 399 and 402, IPC, the appellants are entitled for acquittal under these sections. The next question is whether appellants Shyamu can be convicted under Section 25(1B)(a) of the Arms Act. After giving my anxious and bestowed consideration, I am unable to uphold the conviction under this Section for the simple reason that since entire story of prosecution is disbelieved including recovery and arrest, appellant Shyamu cannot be roped in the said offence and accordingly he is also acquitted from the said charge.
14. In the result, appeal succeeds and is hereby allowed. The conviction of appellants is hereby set aside. Appellant Shyamu is in jail, he be set at liberty forthwith if not required in any other case. The other two appellants are on bail, their bail bonds are discharged.