Full Judgment
HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Revision No.879/1999 Sharad Kumar Chourasia Vs. State of Madhya Pradesh ----------------------------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ----------------------------------------------------------------------------------------------------- Name of counsel for the parties: Shri R.K. Thakur, counsel for the applicant. Shri Vinot Fauzdar, Panel Lawyer for the respondent/State. ----------------------------------------------------------------------------------------------------- ORDER
(Passed on 26th day of February, 2013) The applicant was convicted for the offence punishable under Section 25(1)(b) of the Arms Act and sentenced for one year's R.I. with fine of `500/- vide judgment dated 15.10.1998 passed by the Chief Judicial Magistrate, Satna in criminal case no.777/98. The learned Sessions Judge, Satna vide judgment dated 22.5.1999 reduced to the period from a period of one year to the period of six months. Being aggrieved with the aforesaid judgments passed by both the Courts below, the applicant has preferred the present revision.
2. The prosecution's case in short is that on 10.7.1994 Rajeev Lochan Tripathi (PW-2) was posted as a Head Constable in the City Kotwali, Satna. He arrested the applicant for the offence 2 Criminal Revision No.879/1999 punishable under Section 324 of IPC and therefore, a search took place of the applicant before the various witnesses then, a knife having the button spring was found with the applicant. Its blade was assessed to be 8 Angul in length. The seizure memo Ex.P/1 was prepared. A case was registered against the applicant.
3. The applicant abjured his guilt. He has stated that he was falsely implicated in the matter. In defence, one Gokul Prasad Chourasiya (DW-1) was examined.
4. The learned Chief Judicial Magisterial after considering the evidence adduced by both the parties, convicted and sentenced the applicant as mentioned above, whereas in appeal the conviction was maintained, but the sentence was reduced from the period of one year R.I. to the period of six months R.I.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant submits that the seizure was not proved beyond doubt and it was also not proved that the knife was of prohibited size. The applicant was convicted without any basis and therefore, it is prayed that the revision may be allowed.
7. On the other hand, the learned Panel Lawyer submits that the seizure of the knife was duly proved and it was of prohibited size. Under such circumstances, it is prayed that the revision may be dismissed.
8. Head Constable Rajeev Lochan Tripathi (PW-2) has 3 Criminal Revision No.879/1999 submitted before the trial Court that during arrest of the applicant, one knife was found in the right pocket of his pant and seizure memo Ex.P/1 was prepared. Devishankar Sharma (PW-3) a witness of seizure memo has turned hostile. He has submitted that his shop etc. were robbed and therefore, he was in agony and hence, he appended his signature on various documents as told by the police officer. On the other hand, Temeshwar Prasad Dubey (PW-1) has confirmed the seizure that the knife was seized from the applicant. He was suggested that he had some enmity with the father of the applicant but he denied. Gokul Prasad Chourasiya (DW-1) has submitted that he had some dispute with one Jaiswal and therefore, a false case has been created against the applicant. He has shown his ignorance about the witness Tameshwar Prasad Dubey. Under such circumstances, it is not proved that the witness Tameshwar Prasad Dubey (PW-1) was inimical to the applicant and therefore due to corroboration of the witness Tameshwar Prasad Dubey, the testimony of the Head Constable is duly corroborated and it is proved beyond doubt that one knife was seized from the applicant.
9. It is nowhere mentioned that the knife was produced before the Court or it was shown to the witnesses, who were examined before the Court during the trial. It was also mentioned that it was a button knife having a spring. However, it is mentioned in the seizure memo that base of the knife was broken and 4 Criminal Revision No.879/1999 therefore, it was for the seizure officer to show that the spring of that knife was working and it was a spring activated knife. But, such knife was not shown to any of the witnesses before the Court and therefore looking to the seizure memo, it cannot be said that the spring or button of that knife was working at the time of incident and therefore, it cannot be said that the alleged knife was a spring activated knife. Similarly, it is mentioned in the seizure memo that blade of the knife was 8 Angul long but its size of blade was not shown in the inches. Such type of arm would be prohibited under the notification issued by the State Government, if its blade was more than 6 inches long or width was more than 2 inches. The seizure officer has mentioned in the seizure memo Ex.P/1 that the length of knife was of 3 Angul. If the entire length of knife i.e. 3 Angul is considered then, blade could not more than the entire length of the knife and therefore, it appears that the measurement of the knife mentioned in the Ex.P/1 was not duly mentioned and therefore, looking to the seizure memo and the statements of I.O., blade of knife was not proved to be more than 6 inches long. It is also strange that the width was not mentioned by the concerned investigation officer, whereas a superficial evidence has been produced and therefore, it is not proved that the applicant had a knife of prohibited size and therefore, he could not be convicted for the offence punishable under Section 25(1)(b) of the Arms Act because it was not proved that he violated the conditions of the 5 Criminal Revision No.879/1999 notification issued by the State Government by keeping a knife of prohibited size. The learned Chief Judicial Magistrate as well as the learned Sessions Judge have committed an error in assessment of size of knife and therefore, conviction directed by both the Courts below cannot be maintained.
10. Since it is not proved beyond doubt that the applicant had a knife of prohibited size or design with him therefore, he cannot be convicted for the offence punishable under Section 25(1) (b) of the Arms Act and therefore, the revision filed by the applicant is to be accepted.
11. Consequently, the revision filed by the applicant is hereby accepted. The conviction as well as the sentence directed by the trial Court is hereby set aside. The applicant is acquitted from the charge of the offence punishable under Section 25(1)(b) of the Arms Act. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
12. At present, the applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds etc. shall stand discharged.
13. A copy of this order be sent to the trial Court as well as appellate Court for information and compliance. (N.K. GUPTA) JUDGE 26 02.2013 pnkj