Manoj Sharma @ Chikna Vs. the State of Madhya Pradesh - Court Judgment

1 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR SB: HON. SHRI N.K.GUPTA,J.CRIMINAL REVISION NO.1947/2006 Manot Sharma @ Chikna. Vs. State of Madhya Pradesh. -------------------------------------------------------------------------------------- Shri Mohan Patel, Advocate for the applicant. Shri Prakash Gupta, Panel Lawyer for the respondent- State. -------------------------------------------------------------------------------------- ORDER

(Passed on the 19th day of March, 2013) The applicant was convicted for the offence punishable under Section 25(1-B)(b) read with Section 4 of the Arms Act vide judgment dated 8.8.2006 passed by the CJ.Bhopal in Criminal Case No.7418/2004 and sentenced with one year's RI with fine of Rs.500/-. In Criminal Appeal No.203/2006 the learned Sessions Judge and Special Judge, Bhopal vide judgment dated 31.10.2006 dismissed the appeal in toto. Being aggrieved with both the judgments, the applicant has filed the present revision.

2. The prosecution case, in short, is that on 9.9.2004 at about 3:00 PM the Head Constable Ram Prakash Singh (PW-2) and Head Constable Swaminath 2 (PW-1) went on round. Near the Agrawal Dharamshal, Bhopal one boy ran away from the spot after seeing these two Head Constables, therefore he was chased and arrested. On his search a dagger was found with him having 7 inches blade, and therefore it was seized before the witnesses. Ultimately, a charge sheet was filed after due investigation.

3. The applicant-accused abjured his guilt. He did not take any specific plea in the case. However, no defence evidence was adduced.

4. The learned CJ.Bhopal after considering the prosecution evidence convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was also dismissed in toto .

5. I have heard the learned counsel for the parties.

6. Head Constable Swaminath (PW-1) and Head Constable Ram Prakash Singh (PW-2) have stated that they were on round in the territory, then near the Agrawal Dharamshala the applicant ran away after seeing them. Therefore he was held and a search took place, then a dagger was found with him having 7 inches blade, and therefore a seizure memo Ex.P-1 was prepared. The independent witnesses Baka @ Bhagwan 3 Das (PW-3) and Rajesh (PW-4) have turned hostile. They did not accept the seizure made from the applicant.

7. The present case has two inherent drawbacks in the matter. Firstly that the weapon was not produced in the Court to show that it was prohibited weapon according to the notification issued by the State Government. If the seizure memo Ex.P-1 is perused, then the seized weapon was nowhere sealed, and therefore it cannot be said that if the weapon was deposited in the Court, then it would be the same, which was seized. Such type of knife is easily available in the market, and therefore due to lapses that the weapon was not produced in the Court and it was not sealed at the time of seizure, the prosecution story comes in the cloud of doubt.

8. Secondly, the prosecution has examined Head Constable Swaminath (PW-1) in support of the incident, but no Rojnamcha was filed before the trial Court to show that the Head Constable Swaminath had also visited along with the Head Constable Ram Prakash Singh (PW-1) at the time of incident. On the seizure memo Head Constable Swaminath was not made as a witness, and therefore it was for the Investigation Officer to record the statement of the witness Swaminath under Section 161 of Cr.P.C., but no such statement was 4 recorded by the Investigation Officer, and therefore the presence of the witness Swaminath was highly doubtful.

9. The Head Constable Ram Prakash Singh has alleged about the seizure and he created a witness like Head Constable Swaminath to patch up the case. However, looking to his activity that he created a false witness in the case, his own testimony comes into the doubt, and therefore the testimony of the Head Constable Ram Prakash Singh cannot be believed relating to the fact of seizure. It is not proved beyond reasonable doubt that a dagger of prohibited size was seized from the applicant, and therefore he could not be convicted for the offence under Section 25(1-B)(b) read with Section 4 of the Arms Act.

10. On the basis of the aforesaid discussion, it is apparent that though the concurrent finding was given by both the Courts below depending upon the facts relating to the conviction, but that finding suffers from various illegalities, and therefore it is a fit case in which an interference is required from the side of this Court by way of this revision. Consequently, the present revision filed by the applicant is hereby allowed. The conviction as well as the sentence directed by both the Courts below for the offence under Section 25(1-B)(b) read with Section 4 of the Arms Act is hereby set aside. The 5 applicant is acquitted from the charges of the aforesaid offence. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

10. The applicant is on bail, his presence is no more required before this Court, and therefore it is directed that his bail bonds shall stand discharged.

11. A copy of this order be sent to both the courts below along with their records for information. (N.K.Gupta) Judge 19.03.2013 Ansari.