Manichand @ Manakchand vs The State Of Madhya Pradesh
2022 Latest Caselaw 16021 MP

                                       1

IN THE          HIGH       COURT            OF   MADHYA       PRADESH
                          AT J A B A L P U R
                                  BEFORE
         HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                    ON THE 5th OF DECEMBER, 2022


                   CRIMINAL APPEAL No.2721of 2012

BETWEEN:-
   MANICHAND @ MANAKCHAND S/O MANGAL, AGED ABOUT 53 YEARS,
1. OCCUPATION: PIPEMAN IN RAILWAY DEPTT. DONGERGAON P.S. PANDHANA
   KHANDWA (MADHYA PRADESH)

     BABLOO S/O MANICHAND PATEL , AGED ABOUT 34 YEARS, DONGERGAON, PS.
2.
     PANDHANA, DISTT. KHANDWA (MADHYA PRADESH)

     ABBU @ MUKESH PATEL, AGED ABOUT 26 YEARS, DONGERGAON, PS. PANDHANA,
3.
     DISTT. KHANDWA (MADHYA PRADESH)

                                                               .....APPELLANT
(BY SHRI KAMAL SINGH RAJPUT, ADVOCATE )

                                     AND
THE STATE OF MADHYA PRADESH TH:GRP KHANDWA (MADHYA PRADESH)

                                                           .....RESPONDENTS
(BY SHRI A. R. S. CHOUHAN, PANEL LAWYER )

This appeal coming on for hearing this day, the court passed the following:

                                 JUDGMENT

This appeal under Section 374(2) of Cr.P.C. has been filed feeling

aggrieved and dissatisfied by the judgment of conviction and order of

sentence dated 11.12.2012 passed in Special Case No.17/2009 - State of M.P.

Vs. Manichand Alias Manakchand and others whereby appellant No.1

Manichand and appellant No.3 Abbu @ Mukesh have been convicted for

commission of offence under Section 324/34 of IPC and appellant No.2

Babloo @ Umesh has been convicted for commission of offence under

Section 324 of IPC and Section 25(1-B)(b) of Arms Act and has been

sentenced to undergo 1-1 year R.I. and find of Rs.2000/- with default

stipulation for commission of offence under Section 324 and 324/34 of IPC

and appellant Bablu @ Umesh has been also sentenced to 1 year R.I. and fine

of Rs.1000/- for commission of offence under Section 25(1-B)(b) of Arms

Act.

2. Appeal was preferred by all the three appellants before this Court.

Appellant No.1 Manichand has died, therefore, appeal has stood abated

against him, whereas appellants No.2 and 3 Bablu and Abbu @ Mukesh have

been acquitted of offence under Section 324 and 324/34 of IPC on the basis

of compromise arrived at between the injured complainant and appellants.

This judgment is being passed only in respect of conviction and sentence of

appellant Bablu @ Umesh for commission of offence under Section 25 (1-B)

(b) of Arms Act.

3. As per the prosecution case, on 14.10.2008 at 10:00 PM, Manoj Karosiya

lodged an FIR at police outpost Dagargaon of PS GRP, Khandwa stating that

Sarju Prasad PW-15 who has retired from the Railway two months ago had

received his pension amount. When Sarju was in inebriated condition,

Manichand @ Manakchand had taken out rupees from the pocket of Sarju.

On 14.10.2008, at around 07:30 PM, Manoj had gone to Manakchand house

asking him whether he has returned that money to Sarju or not. Manakchand

told him that he has handed over that money to the daughter of Sarju, at this,

he came back on the railway station. In the meantime, Manakchand and

Abbu arms with lathi and Babloo armed with sword came at the railway

platform abused him and Manakchand gave lathi blows on his chest and right

finger. Hearing his scream, his son Rahul and nephew Gabbu reached on the

spot, at this Babloo with an intention to kill Gabbu gave a sword blow on his

head. Gabbu sustained injuries over his head and hand. Abbu had caused

injuries to Rahul on his head also. Thereafter, they all fled away from the

spot. FIR was registered. After investigation charge sheet was filed.

4. Learned trial Court framed charges for commission of offence under

Section 294, 324/34 two counts and 323/34 of IPC and Section 3(1)(x) of SC/

ST (Prevention of Atrocities) Act. Accused Babloo was also charged for

commission of offence under Section 25(1-B) (b) read with Section 27 of

Arms Act. Appellants/ accused abjured their guilt and claimed to be tried.

5. Learned trial Court recorded the evidence of 19 witnesses. No witness

was examined in defence. Learned trial Court acquitted the appellants/

accused from commission of offence under Section 323/34, 294 of IPC, and

Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act but convicted for

commission of offence under Section 324 and 324/34 of IPC. Babloo @

Umesh was also convicted for commission of offence under Section 25(1-B)

(b) of Arms Act. As appellants No.2 and 3 have been acquitted of the offence

under Section 324, 324/34 of IPC on the basis of compromise arrived at

between the parties, this judgment is being passed only in respect of

commission of offence under Section 25(1-B)(b) of the Arms Act.

6. Learned counsel for the applicant has submitted that learned trial Court

has not properly appreciated the evidence about the seizure of sword from the

possession of the present applicant. Independent witnesses Datta (P.W.7)

and Kanhaiya (P.W.3) have not supported the seizure of the sword from the

possession of the appellant Babloo. No notification was produced and

proved by the prosecution under which possession of such sword has been

made offence. Therfore, learned trial Court was not justified in convicting

the appellant for commission of offence under Section 25(1-B)(b) of Arms

Act only on the basis of evidence of Pallavi Trivedi Inspector of Police

(P.W.14). Therefore, findings recorded by the learned trial Court being

erroneous are not worth uphold. Therefore, it is prayed that judgment of

conviction and order of sentence for commission of offence under Section

25(1-B)(b) of Arms Act be set aside by allowing the appeal and appellant-

Babloo be acquitted of offence under Section 25(1-B)(b) of Arms Act.

7. On the other hand, learned counsel for the respondent/ State has supported

the impugned judgment passed by the learned trial Court and has prayed for

dismissal of the appeal.

8. I have heard learned counsel for the parties and perused the trial court

record and impugned judgment by learned Additional Sessions Judge,

Khandwa.

9. Pallavi Trivedi (P.W.14) in her evidence has deposed on 15.12.2018. She

had arrested accused Babloo @ Umesh and had prepared arrest memo

Exhibit P/10. She further deposed that on the basis of disclosure memo

Exhibit P/11 by accused, one sword having two feet three inch length and one

and half inch width of blade was seized from his possession. The evidence of

Pallavi Trivedi (P.W.-14) about recovery of sword does not find any

corroboration from the evidence of the independent witnesses Kanhaiya

(P.W.3) and Datta (P.W. -7). It is worth mentioning that seized article sword

was not produced before the trial Court at the time of evidence of Pallavi

Trivedi (P.W.14) or any other witness. As such, same was never exhibited

before Court. Therefore, conviction of the appellant under Section 25(1-B)

(b) of Arms Act is not worth acceptance.

10. A Coordinate Bench of this Court in Kale Babu Vs. State of M.P. - ILR

(2008) MP Note 44 has held "where knife seized from the possession of the

appellant was not produced before the trial Court and not marked as an

article. Oral evidence regarding its size and specification is not sufficient.

Same is the position in this case as there is nothing on record to infer that

blade of the sword was more than two feet and three inch long and its width

was one and half inch and it was having blade of prohibited dimensions as

specified in notification issued under Section 4.

11. As neither notification making the arms of a particular specification

prohibited was produced by the prosecution before the trial Court nor it was

produced before the trial Court to prove that its blade was within the category

of the arms specified in notification issued under Section 4 of the Act. I am

of the view that learned trial Court was not justified to convict the appellant

Babloo @ Umesh for commission of offence under Section 25(1-B)(b) of

Arms Act. Therefore, this appeal being worth acceptance is allowed.

Impugned judgment of conviction and order of sentence for commission of

offence under Section 25(1-B)(b) of Arms Act of appellant - Babloo @

Umesh is set aside. Appellant Babloo, S/o Manakchand Patel is acquitted of

the offence under Section 25 (1-B)(b) of Arms Act. His bail bond shall stand

discharged. He is entitled to receive back fine amount deposited by him in

the trial Court. However, trial Court judgment with respect to seized proper

is confirmed.

12. Trial Court record along with a copy of the judgment be sent down

immediately to Special Judge, SC/ ST (Prevention of Atrocities) Act,

Khandwa through Sessions Judge, Khandwa.

(DINESH KUMAR PALIWAL) JUDGE

kundan Digitally signed by KUNDAN SHARMA Date: 2022.12.06 17:48:34 +05'30'