Bombay High Court
Virendra Das Jogendra Das And ... vs The State Of Mah.Thr.Pso Nagpur on 25 September, 2017
Bench: Swapna Joshi
1 J-cr a 765-03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.765 of 2003
1] Virendra Das s/o Jogendra Das
aged about 19 years, Occ.-Labour
2] Rajendra Das s/o Jogendra Das
Aged about 24 years, Occ.: Labour
Both residents of Panchawati Nagar,
Panch Quarter, Nagpur. .... Appellants.
-Versus-
The State of Maharashtra,
through Police Station Officer
Police Station, Pachpaoli,
Nagpur. .... Respondent.
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Mr. S.B. Bissa, Additional Public Prosecutor for State.
Shri V. P. Mohod, Advocate (Appointed) for the Accused.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 25
September, 2017.
ORAL JUDGMENT
This appeal has been directed against the judgment and
order passed by the learned 2nd Ad-hoc Additional Sessions Judge,
Nagpur in Sessions Trial No. 483/2002, whereby the learned trial Judge
has convicted the appellant no.1 (hereinafter appellants will be referred
as 'the accused') under Sections 3 and 4 punishable under Section 25
of the Arms Act and sentenced to suffer Rigorous Imprisonment for
three years and to pay fine of Rs.1,000/-, in default, accused shall
suffer Rigorous Imprisonment for six months. The appellant no. 2-
2 J-cr a 765-03.odt
accused is convicted under Sections 3 and 4 punishable under Section
25 of the Arms Act and sentenced to suffer Rigorous Imprisonment for
one year and to pay fine of Rs.100/-, in default, shall suffer Rigorous
Imprisonment for 15 days.
2] I have heard Mr. S. B. Bissa, the learned Additional Public
Prosecutor for the State. Learned counsel for the appellants remained
absent. I have carefully gone through the record of the prosecution
case.
3] The facts leading to prefer this appeal can be summarised
as under:-
On 9.7.2002 at about 3.15 a.m. PSO Shri Dabhade (PW-
4) of Police Station, Pachpaoli along with his staff was on patrolling
duty. He came to know from the informant that some persons have
gathered near NIT Complex, Awalebabu Square, Lashkaribagh,
Nagpur, with an intention to commit dacoity. Those persons were
possessing weapons. Therefore, PW-4 called two panchas and
proceeded to the place of incident. He found that there were six
persons discussing amongst themselves to commit an offence of
dacoity. Therefore, PW-4 along with his staff encircled them and caught
them. The search of the arrested persons was taken. Accused no.1
Virendradas was holding Desi Katta, accused no.2 Rajendradas was
found in possession of one sword having length of 33.5 inch and width
3 J-cr a 765-03.odt
2.5 inch, accused no.3 Firoz Khan was found in possession of one
sword, accused no.4 Bajrang was found in possession of one Hattimar
knife, however, nothing was found with Mushtaq. Accordingly, spot
panchnama and seizure memo was drawn, in the presence of two
panchas. The accused persons and the articles seized from them were
brought to the police station, Pachpaoli. The report was lodged by Shri
Dabhade (PW-4). On the basis of said report, offence was registered,
statements of the witnesses were recorded. Desi Katta pistol seized
from accused no.1 was sent to C.A. for its analysis. After completion of
the investigation, chargesheet was submitted to the Court. The charge
was framed by the learned Adhoc Additional Sessions Judge, Nagpur.
On analysis of the evidence and after hearing of the learned trial Judge,
convicted the accused as aforesaid. Hence, the appeal.
4] In order to prove the guilt of the accused, the prosecution
has examined in all four witnesses. PW-1 and PW-3 are the panch
witnesses, who turned hostile and did not support the prosecution case.
PW-2 and PW-4 are the police witnesses.
5] According to PW-2 on 9.7.2002 he was attached to Police
Station, Pachpaoli, Nagpur. According to him, he came to know that
accused persons are possessing weapons with an intention to commit
offence. PW-2 along with P.C. Surendra, Tulsidas Shikla, Narendra Giri
and PSI Tripathi proceeded to the saw mill area. They found five
4 J-cr a 765-03.odt
persons gathered on the spot. They caught hold four persons amongst
them. They found one Desi Katta with Virendra and his brother, one
Hattimar knife was taken charge from accused no.4 Bajrang, swords
were found from the possession of accused no.2 Rajendra and
accused no.3 Firoz. The spot panchnama and seizure memo were
prepared on the spot.
6] The testimony of PW-4 who is PSI Dabhade shows that
on 9.7.2002 he was on patrolling duty at night. He came to know that
some persons were gathered near Lashkaribagh Complex with an
intention to commit dacoity. He called two panchas, then he along with
panchas and other staff proceeded to the spot. He saw five persons in
open place. It was about 3.00 a.m. at that time. They encircled them
and apprehended them on the spot. One person amongst them
succeeded to escape. According to PW-4, he found one Desi Katta
Pistol in possession of Virendra, one sword found with accuse no.2
Rajendra and accused no.3 Firoz and one Hattimar knife was found
with accused no.4 Bajrang. He prepared the spot panchnama and
seizure memo of the weapons (Exh.51). He lodged report (Exh.66).
According to PW-4, Desi Katta Pistol was sent to C.A. Office for its
chemical analysis. The accused persons were arrested.
7] During the cross-examination PW-4 stated that he had not
filed the copy of station diary to show that he had left police station for
5 J-cr a 765-03.odt
the purpose of patrolling. From the said version of PW-4, it is clear that
when PW-4 received information with regard to the fact that the
accused persons were possessing weapons with them and they were
planning to commit dacoity. PW-4 stated that he had not given
summons to the panchas to call them as witnesses. It is not clear from
the testimony of PW-4 as to during night hours from where did he call
panchas. It is already discussed above that both the panchas turned
hostile in this case. According to PW-4, he had affixed the labels with
signature of panchas and accused on the seized property. However,
his testimony shows that those labels were not found on the articles.
According to PW-4, those labels might have been removed. Although
PW-4 stated that the labels bearing signatures of panchas and accused
were affixed to the weapons, however, since those labels were not
found on the seized articles, it creates a serious doubt about the
seizure of weapons from the accused persons, in presence of panchas
at the place of incident near Lashkaribag complex. Thus, the seizure of
weapons has not been proved by the prosecution beyond reasonable
doubt. Significantly PW-1, who allegedly accompanied PW-4, to the
place of incident, did not whisper about the sealing of the articles.
8] It is significant to note that seizure memo (Exh.51) does
not disclose that the weapons which were allegedly taken charge from
the accused persons were sealed at the place of incident by affixing the
6 J-cr a 765-03.odt
labels bearing signatures of panchas and the accused as well as police
officer. No doubt, C.A. Report reveals single barrel breech loading
country made handgun, in working condition. It is capable of
chambering and firing 12 bore shotgun cartridge. Residue of fired
ammunition-nitrite was detected in barrel washings of Exhibit 1 showing
that Exhibit 1 was used for firing prior to its receipt in the laboratory. A
cap of dismantled 12 bore shotgun cartridge from laboratory stock was
successfully test fired from countryman handgun in Exh.1.
9] Thus, on entire scrutiny of prosecution witnesses, it is
noticed that the prosecution has failed to prove its case beyond
reasonable doubt. The prosecution has failed to prove that Desi Katta
was seized from accused no.1 and sword was seized from accused
no.2. The judgment and order passed by learned trial Judge needs to
be set aside. Hence, the order:-
Order
i] Criminal Appeal No. 765 of 2003 is allowed.
ii] The judgment and order dated 10.12.2003 delivered by learned
2nd Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial
No. 483/2002, is quashed and set aside.
iii] The appellant nos. 1 and 2 are acquitted of the offences under
Sections 3 and 4 punishable under Section 25 of the Arms Act.
iv] The bail bonds furnished by the appellants stand cancelled.
7 J-cr a 765-03.odt
v] The fine amount, if any, deposited by the appellants be refunded
to them, if not withdrawn.
vi] Muddemal property be dealt with as directed by trial Court after
the appeal period is over.
JUDGE
Ingole
