Dilipsingh vs The State Of Madhya Pradesh
2021 Latest Caselaw 2667 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
   (SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
              Criminal Revision No.1192/2021
             (Dilip Singh V/s. The state of M.P.)

     Shri Omprakash Solanki, learned counsel for the applicant.
     Shri Amit Rawal, learned counsel for the respondent/State.
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                             ORDER

(24/06/2021) The present revision under Section 397/401 of Criminal Procedure Code ( in short " Cr.P.C.) is preferred against the judgment dated 15.02.2017 passed by Judicial Magistrate First Class, Khargone (West Nimar) in Criminal Case No.1008/2016 whereby applicant has been convicted for the offence punishable under Section 25(1) (a) of Arms Act, 1959 ( In short " Act 1959") and sentenced to undergo three years imprisonment with fine of Rs. 5,000/- with default stipulation and against the judgment dated 24.03.2021 passed by Fourth Additional Sessions Judge, West Nimar, Khargone in Criminal Appeal No.31/2017 whereby the learned Fourth Additional Sessions Judge affirmed the judgment dated 15.02.2017 and dismissed the appeal of applicant. (2). As per prosecution story, on 21.03.2016, Head Constable Durgesh Vishwakarma, Sub Inspector Jhadav, Head Constable Ravindra reached to the Dhoolkot on the basis of discrete information and found one person of short height with a bag standing road side. He was captured and he disclosed his name as Sarvesh i.e. co-accused . His bag was searched, and police found 10 country made pistol in it. The aforesaid illegal arms were seized and Sarvesh was taken into custody. On interrogation, he disclosed that he purchased the aforesaid pistols from this present applicant i.e. Dilip Singh. Police reached to the house of Dilip Singh/applicant but he

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was not found in the house. His house was searched in which four country made pistols valued at Rs. 40,000/- and instruments and material to be used for making illegal arms were found. All pistols, materials and instruments were seized and he was made accused in this case. Later on, applicant was arrested. After completion of the investigation, charge-sheet was filed against both the accused under Section 25(1) (a) of Arms Act, 1959.

(3). Before Judicial Magistrate First Class, applicant and co- accused Sarvesh pleaded not guilty and prayed for trial. The co- accused Sarvesh appeared in the trial till 17.10.2016, thereafter, he remained absconding. The trial proceeded against this applicant. The applicant was not released on bail by the trial court. (4). In support of charges, the prosecution has examined seven witnesses namely Vishal (PW-1), Jagiram (PW-2), A.S.I. Jadhav (PW-3), Head Constable Haricharan ( PW-4), Padam (PW-5), Ravindra Chouhan (PW-6) and Durgesh Vishwakarma (PW-7). Both accused denied the charges but did not examine any witnesses in their defence.

(5). After appreciation of the evidence came on record, the learned Judicial Magistrate First Class vide judgment dated 15.02.2017 convicted and sentenced the applicant as stated above. (6). Being aggrieved against the said judgment, the applicant preferred criminal appeal no. 31/2017 and the learned appellate Court vide judgment and order dated 24.03.2021 affirmed the judgment of the learned Trial Court and dismissed the appeal. Hence, present revision before this Court.

(7). Learned counsel for the applicant submits that applicant has falsely been implicated in the present crime. The prosecution has failed to produce that the house from where four country made pistols and instruments for making illegal arms were recovered,

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belongs to present applicant. During the investigation, police has collected the certificate issued by Sarpanch, of Gram Panchayat but neither the said certificate nor the Sarpanch was produced before the trial court, therefore, there is no evidence to connect the applicant with the present crime. The independent witnesses Vishal (PW-1) and Jagiram (PW-2) have not supported the case of prosecution, thus the conviction of applicant is based on the memorandum of Sarvesh recorded under Section 27 of Indian Evidence Act, which is not admissible in the eyes of law. Hence, applicant is liable to be acquitted.

(8). I have heard learned counsel for the parties through V.C. and perused the judgments passed by both the courts below: (9). That on the basis of secret information, police found co- accused Sarvesh standing near Dhoolkot , Mohana Road. He was carrying a bag in which police has found 10 country made pistols valued at Rs. 10,000/- each in total Rs. 1,00,000/-. He was arrested and in his memorandum under Section 27 of Indian Evidence Act, he disclosed the name of present applicant from whom he had purchased the aforesaid pistols. Police conducted the search the house of the present applicant and recovered four country made pistols and 13 instruments / materials to be used for making these country made pistols. These articles were produced before the trial court as article 1 to article 15. Although the independent witnesses Vishal (PW-1) and Jagiram (PW-2) who signed the search memo, arrest memo, memorandum under Section 27 of Indian Evidence Act have not supported the case of prosecution but admitted their signature in these documents. The prosecution examined A.S.I. Jadhav (PW-3), who arrested the Sarvesh and recovered 10 country made pistols and thereafter searched the house of applicant. A.S.I. Jadhav (PW-3), Head Constable Haricharan (PW-4), Constable

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Padam (PW-5), Head Constable Ravindra Chouhan (PW-6) and Head Constable Durgesh Vishwakar (PW-7) have supported the case of prosecution in respect of search in the house of applicant. Learned counsel has argued that there is no evidence to establish that this house from where four country made pistols and instruments to be used for making illegal arms were recovered, belongs to the present applicant. In the cross-examination Constable Padam (PW-5) and Head Constable Ravindra Chouhan (PW-6) stated that when the police team reached to the house of applicant all the family members except Dilip Singh/applicant were found in it. Entire documents pertaining to the seizure and search were prepared by Head Constable Durgesh Vishwakarma (PW-7), who in his cross- examination stated that consent of search was given by the wife of applicant. Although, he has admitted that he did not obtain, the search warrant but house was searched with the permission of wife of applicant. The evidence of Constable Padam (PW-5), Head Constable Ravindra Chouhan (PW-6) and Head Constable Durgesh Vishwakarma (PW-7) have remained unrebutted. (10). Applicant and co-accused Sarvesh did not produced any evidence in defence. So far present applicant is concerned, he has simply pleaded that he is innocent and falsely been implicated in this case. He has not produced any documents in defence to establish that he is not the resident the house situated at Gram Dhoolkot from where arms were recovered but of some other place. In defence he could have filed various documents to show his residential address. Had he been in possession of any document in respect proof of his residents, he would filed in his defence to show that the house searched by the police is not his house and he resides somewhere else. The accused cannot remain silent throughout the trial. He should come forward with some plausible defence to prove his

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innocence and false implication by police . Even though the independent witnesses have turned hostile but there is no reason to disbelieve the police witnesses who have deposed in respect of arrest of co-accused, recording his memorandum under Section 27 of Indian Evidence Act and search of house, and recovery of illegal arms and other articles.

(11). The scope of interference by the High Court in revisional jurisdiction is limited . In view of above, both the courts below have not committed any error in convicting the applicant, therefore, both the judgments are affirmed, and revision filed by the applicant is hereby dismissed.

Let the order be sent to the concerned trial court alongwith record.

Certified copy as per Rules.

( VIVEK RUSIA ) JUDGE praveen

Digitally signed by PRAVEEN NAYAK Date: 2021.06.28 19:56:58 +05'30'