Judgment:
S.A. Naqvi, J.
1. Assail is to the judgment dated 5-8-08 passed by the Additional Sessions Judge and Special Judge (Dacoity Act), Panna in Special Case No. 76/08, whereby the appellant Chirku @ Lakhanlal has been convicted under Section 25(1)(b)(a) of Arms Act read with Section 11/13 of M.P. Dacoity Awam Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (for short 'the Adhiniyam') and sentenced to 3 years' Rigorous Imprisonment and fine of Rs. 500/- in default, one month's Rigorous Imprisonment.
2. Case of the prosecution in a nutshell is that SHO Police Station, Dharampur on intervening night of 21/22-4-08 received secret information that in Village Dharampur one person is roaming possession katta. The information was entered vide Exh. P-8C. R.G. Tiwari, along with police party and panch witnesses reached on the spot. He saw a person running in front of Durgapur School, that man was apprehended by the police. The personal search of the person apprehended was taken. A 315 bore katta containing live cartridge was found in possession of that person. On interrogation, he disclosed his name as Chirku @ Lakhanlal. Katta and cartridge were seized vide seizure memo (Exh. P-1). Panchnama (Exh. P-2) was prepared. The appellant was arrested. FIR (Exh. P-10) was lodged by R.G. Tiwari (P.W. 7). Shahbuddin Dwivedi (P.W. 5) on examining seized katta and cartridge opined that fire can be made by katta and live cartridge of 315 bore. Sanction for prosecution under Arms Act was accorded vide Exh. P-5. After completion of investigation, the appellant was charge-sheeted.
3. Learned Trial Court framed charge under Section 25(1)(b)(a) of Arms Act read with Section 11/13 of the Adhiniyam. The appellant abjured the guilt and pleaded innocence and false implication. His defence is that he was going to forest, Inspector arrested him and put him in Thana, he has been falsely implicated.
4. Prosecution has examined 7 witnesses, no witness has been examined in defence. After hearing learned Counsel for both the parties, perusing evidence and material on record, learned Trial Court convicted the appellant under Section 25(1)(b)(a) read with Section 11/13 of the Adhiniyam and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment, the appellant has preferred the appeal.
5. I have heard learned Counsel for both the parties, perused impugned judgment, evidence and material on record.
6. Learned Counsel for the appellant vehemently argued that the prosecution has failed to prove that the appellant is a dacoit or on fateful night, he was going to commit dacoity. The offence under Arms Act is not specified offence under the Act. Hence, he cannot be convicted with the aid of Section 11/13 of the Adhiniyam. R.G. Tiwari (P.W. 7) lodged FIR. Seized alleged katta and cartridge from the appellant. He conducted investigation, hence, without corroboration his testimony cannot be relied upon and conviction cannot be based on his testimony. There are material contradictions and omissions in the statement of prosecution witnesses. Independent witnesses are not supporting the prosecution case. Sanction for prosecution under Arms Act Exh. P-5 is not in accordance with law. Learned Trial Court committed error in convicting and sentencing the appellant as hereinabove mentioned. Contrary to that learned Public Prosecutor supported the impugned judgment and submitted that learned Trial Court did not err in convicting and sentencing the appellant.
7. Dacoit is defined under Section 2(b) of the Act thus:
(b) 'dacoit' in relation to a dacoity and kidnapping affected area, means a person who commits or has committed an offence punishable under Section 395 of the Indian Penal Code (XLV of 1860) or a specified offence, or as the case may be, a person accused of commission of any such offence.
Specified offence is defined in Section 2(f) of the Act thus:
(f) 'Specified offence' means--
(I) an offence specified in the Schedule committed in relation to an area declared under Section 3 being an offence forming part or arising out of/or connected with the commission of dacoity or kidnapping;
(ii) an offence for which punishment has been provided under Sections 9, 11 and 12 of this Act;
(iii) an offence punishable under Sections 212, 216, 216-A, 311, 347, 392, 393, 394, 395, 396, 397, 398, 399, 402 and 412 of the Indian Penal Code, 1860 (XLV of 1860) committed in relation to an area declared under Section 3;
and includes abetment or attempt to commit any of the offences specified in Sub-clauses (I), (ii)(iii).
There is no evidence on record that the appellant is a dacoit or on fateful night, he was going to commit dacoity or going to commit offence forming part or and arising out or connected with the commission of dacoity or kidnapping. Hence, in the absence of evidence in this respect, offence under Section 25(1)(b)(a) cannot be held to be a specified offence because it has not been included in Section 2(f), (2) and (3) and in Schedule 2(f) of the Act. No ingredient of Section 11/13 of the Adhiniyam has been proved against the appellant. R.G. Tiwari (P.W. 7), Jwala Prasad Pandey (P.W. 6) are silent in this respect. No incriminating fact has been mentioned in FIR (Exh. P-10). Consequently, I am of the view that learned Trial Court committed error in convicting the appellant with aid of Section 11/13 of the Adhiniyam, which is not sustainable in the eye of law. The offence under Section 25(1)(b)(a) of Arms Act is an independent offence. Now, it has to be considered that whether any cartridge or katta has been seized from the possession of the appellant or not? Lala Bhaiya (P.W. 1) and Lakhan Lai (P.W. 3) turned hostile and they are not supporting the prosecution case. They denied that katta and cartridge were seized from the possession of the appellant. The evidence of these witnesses does not help in any way to the prosecution. The case hinges only on the testimony of police officers which is not corroborated by independent source. Hence, their evidence needs to be examined cautiously and carefully.
8. R.G. Tiwari (P.W. 7) deposed that he received information that one person is roaming possessing katta in Dharampur. The information was entered in Rojnamchasanha vide Exh. P-8C. He along with police party reached on the spot. On seeing police party, the appellant tried to flee away but he was apprehended. On his personal search, a 315 bore katta containing one live cartridge was found in his possession. On interrogation, he told his name as Chirku @ Lakhanlal. The katta and cartridge were seized vide Exh. P-1 and panchanama (Exh. P-2) were prepared. FIR (Exh. P-10) was lodged by R.G. Tiwari (P.W. 7). The facts of seizure of arms from the possession of the appellant is entered in Rojnamchasanha (Exh. P-9C). R.G. Tiwari (P.W. 7) also conducted further investigation. Jwala Prasad Pandcy (P.W. 6) Constable deposed that on wireless set secret information was received that one person is roaming with katta in Dharampur, he was called by SHO, Police Station, from where they proceeded to Village Dharampur. He further deposed that when they reached Durgapur, villagers were chasing a person who was apprehended by them. SHO, R.G. Tiwari (P.W. 7) took search of the person and one 315-bore katta containing live cartridge was seized from his possession. R.G. Tiwari stated that information was received on telephone while Jwala Prasad Pandey is stating that secret information was received on wireless set. In Exh. P-8C, it has been mentioned that secret information was received on telephone. R.G. Tiwari (P.W. 7) deposed that on seeing the police party, the appellant tried to flee away from the spot, but he was apprehended by them. While, Jwala Prasad Pandey is deposing that when police party reached to Durgapur, villagers were chasing the appellant and police party apprehended the appellant. Information was received at 11.50 p.m. on 21-2-08. As per the evidence of Jwala Prasad Pandey (P.W. 6) Durgapur is 4-5 kms away from Police Station, Dharampur and they reached on the spot within 5-10 minutes. It is revealed from the evidence of Jwala Prasad Pandey (P.W. 6) that as soon as they reached on the spot, he saw that villagers were chasing the appellant, almost in between 12-12.30 in the night, police party might have reached on the spot. While seizure memo is prepared at 1.30 in the night at 22-2-08. There is no explanation why one hour is taken to take personal search of the appellant and seizure of the weapon.
9. In Mahesh v. State of M.P. 2009 (III) MPJR 246, Baijnalh Singh v. State of M.P. 1998 (2) JLJ 69 and Megha Singh v. State of Haryana : AIR 1995 SC 2339, it has been held that the Police Officer arresting an accused and recovering pistol and cartridges from and lodging FIR should not proceed with investigation, accused cannot be convicted on the basis of such investigation. R.G. Tiwari (P.W. 7) specifically admitted that entire investigation was made by him which means that he did not hand over the case to any other officer for investigation. It is categorically held by the Apex Court that if a police officer is arresting an accused and recovering a katta and cartridges from him as well as lodging the FIR as complainant, he should not proceed with the investigation being the complainant and the conviction was set aside by the Supreme Court. Hence, conviction of the appellant on that basis cannot be allowed to stand, in view of the above discussion and infirmity between the evidence of Jwala Prasad Pandey (P.W. 6) and R.G. Tiwari (P.W. 7) their evidence cannot be accepted without independent corroboration.
10. It is proved by the evidence of Shahbuddin Dwivedi (P.W. 5) that cartridges can be fired by katta. It is corroborated by report (Exh. P-7).
11. Narayan Das Choubey (P.W. 2), Arms clerk deposed that he received a case diary along with letter dated 15-3-08 of Superintendent of Police, Panna. He put up case diary with arms and cartridge before the District Magistrate, Panna who accorded sanction Exh. P-5 for prosecution of the appellant under the provisions of Arms Act. In cross-examination, Narayan Das Choubey (P.W. 2) specifically admitted that with the letter cartridge and arms were not received. He is not able to name the Constable who allegedly brought the arms and cartridge. Letter dated 15-3-08 is on the file. It has not been proved by the prosecution but it can be used by the defence. Only case diary was sent along with the letter to District Magistrate, Panna. There is no mention in the letter that seized cartridge and katta were sent for inspection to District Magistrate, Panna, which leads to the presumption that Narayan Das Choubey is belying on the point that arms and cartridge were received by him and after perusing the same, District Magistrate accorded sanction for prosecution. Looking to the totality of facts and circumstances of the case, I am of the view that sanction to prosecute the appellant under the provisions of Arms Act is not in accordance with law and no cognizance of the offence can be taken in absence of legal sanction.
12. As per above discussion, I am of the view that learned Trial Court committed error in relying upon the testimony of prosecution witnesses. Evidence of R.G. Tiwari (P.W. 7) and Jwala Prasad Pandey (P.W. 6) is not reliable and conviction cannot be based on their testimony. Learned Trial Court committed error in convicting and sentencing the appellant. No case is made out under Section 25(1)(b)(a) of Arms Act and he deserves to an acquittal.
13. Consequently, the appeal has merit and deserves to be and is hereby allowed. The judgment of conviction and order of sentence passed by learned Trial Court is set aside. The appellant is acquitted of the charges under Section 25(1)(b)(a) of Arms Act read with Section 11/13 of the Adhiniyam. The appellant is in jail, if he is not required in any other criminal case, he be released forthwith.