Madhya Pradesh High Court
Deepak Sen vs The State Of Madhya Pradesh on 26 December, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 26th OF DECEMBER, 2023
CRIMINAL APPEAL No. 841 of 2012
BETWEEN:-
DEEPAK SEN S/O SURESH SEN,
AGED ABOUT 26 YEARS, OCCUPATION: LABOUR
R/O 1145 BHAGIRATHPURA, INDORE
DISTRICT - INDORE (MADHYA PRADESH)
.....APPELLANT
(MR. SHAILENDRA SHRIVASTAVA, ADVOCATE FOR APPELLANT)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE-STATION-HIRA NAGAR, INDORE
DISTRICT - INDORE (MADHYA PRADESH)
.....RESPONDENT
(MR. SACHIN JAISWAL, ADVOCATE FOR RESPONDENT/STATE)
This appeal coming on for hearing this day, the court
passed the following:
ORDER
With the consent of counsel for the parties, matter is
finally heard.
(2) This criminal appeal has been filed by appellant under
Section 374 of Code of Criminal Procedure, 1973, being
aggrieved by judgment dated 21.06.2012 passed by Twelfth
Additional Sessions Judge, Indore, passed in Sessions Trial
No.635/2011, convicting the appellant for the offence
punishable under Section 25(1-B) (b) of Arms Act, 1959 and
sentencing the appellant with one year RI with fine of
Rs.500/- with further default stipulation.
(2) The brief facts of the case are that as per prosecution
story, sole appellant - Deepak Sen assaulted injured - Mahesh
Parihar with sword on alleged date, time and place.
Thereafter, appellant was arrested and memorandum Ex.P/11
was recorded under Section 27 of Indian Evidence Act, 1872,
and in pursuance of above memorandum, sword, as per
seizure memo, Ex.P/12, was recovered from appellant's
possession i.e. from appellant's hair salon shop.
(3) Learned counsel for the appellant/accused - Deepak Sen
submits that parties have compromised the matter and injured
Mahesh Parihar (PW/4) has nowhere stated in his testimony
that appellant assaulted the complainant by sword. Further,
witnesses of memorandum and seizure - Dilip Singh (PW/5)
and Santosh (PW/10) have turned hostile and have not
supported the prosecution story, with respect to memorandum
and recovery of sword. Further, from testimony of Sub-
Inspector, P.S.-Tilgaon (PW/9), memo Ex.P/8 and seizure
memo Ex.P/9, recovery of sword from public place is not
established, whereas, for constituting offence under Section
25(1-B)(b) of Arms Act, 1959, recovery of sharp edged
weapon from his possession in public place is sine-qua-non.
Hence, from evidence on record, ingredients constituting
offence under Section 25(1-B)(b) are not proved. Hence,
appeal be allowed and appellant be acquitted of aforesaid
offence, as mentioned above.
(4) Per contra, learned counsel for the respondent/State
after referring to testimony of injured - Mahesh Parihar,
witness - Dilip Singh (PW/5) and Dr. Vinod Bhandari (PW/8)
states that from above evidence, it is clearly established that
victim/injured - Mahesh Parihar has been assaulted with a
sharp edged weapon. In the instant case, place of recovery is
hair salon shop, owned and possessed by appellant and it
comes within the purview of public place. Further, though
witnesses of memorandum and recovery have turned hostile,
still from testimony of Investigation Officer (IO), P.S.-Tilgaon
(PW/9), recovery of sword from appellant's possession is
clearly established and hence, it cannot be said that learned
trial Court has erred in convicting and sentencing the
appellant under Section 25(1-B)(b) of Arms Act, 1959.
(5) I have heard learned counsel for the parties and have
perused the record of the case.
(6) So far as the memorandum and recovery of sword is
concerned, a perusal of depositions of witnesses Dilip Singh
(PW/5) and Santosh (PW/10) reveal that they have turned
hostile and has not supported the prosecution case on the point
of memorandum Ex.P/8 and seizure memo Ex.P/9.
(7) Further, perusal of testimony of IO, P.S.-Tilgaon would
reveal that during the recording of evidence of Tilgaon
evidence, alleged sword has not been produced in the trial
Court and it has not been exhibited and marked as such in his
evidence.
(8) Further, perusal of injured - Mahesh Parihar's testimony
reveal that he has nowhere mentioned in his deposition that he
was assaulted with sword and, especially, he has nowhere
mentioned that he was assaulted with sword allegedly
recovered at the appellant's instance in pursuance of his
memorandum. It is apparent that alleged sword has not been
shown to injured - Mahesh Parihar, P.S.-Tilgaon.
(9) Further, in view of notification No.6312-6552-II-B (I)
Dated The 22nd November, 1974 of Arms Act, 1959, it is
evident that one essential ingredient for constituting offence
under Section 25(1-B)(b) of Arms Act, 1959 is recovery of
sharp edged weapon of specified specifications from "public
place".
(10) In the instant case, admittedly, sword has been allegedly
recovered from appellant's hair salon shop which is owned
and possessed by the appellant. Hence, it cannot be said that
sword has been recovered from any public place. Further,
from discussion in the foregoing paras, it is also evident that it
is not established from evidence on record that sword
allegedly recovered from the appellant, has been used to
commit instant crime. In view of above also, it cannot be said
that appellant carried above sword in public place at any point
of time.
(11) Thus, from discussion in the preceding paras, it is
clearly established that it is not proved from the evidence on
record that the alleged sword has been recovered from
appellant's possession, especially, in any public place. Hence,
ingredients essential to constitute offence under Section 25(1-
B)(b) of Arms Act, 1959, is clearly missing in the instant case.
(12) In view of above discussion in the foregoing paras, in
this court's considered opinion, learned trial Court has
wrongly convicted and sentenced appellant-Deepak Sen under
Section 25(1-B)(b) of Arms Act, 1959. Hence, the appeal filed
by appellant is allowed and the appellant is acquitted from the
offence under Section 25(1-B)(b) of Arms Act, 1959. Fine
amount deposited by appellant be refunded to him.
(13) With the aforesaid, the appeal stands disposed of.
(14) Certified copy, as per Rules.
(ACHAL KUMAR PALIWAL)
JUDGE
Arun/-
ARUN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENCH INDORE,
2.5.4.20=d5b56e3de75e7828ced1a96bc4f01804c3e
a1f0a5497e4019e41c0a82cbabbf0,
NAIR
postalCode=452001, st=Madhya Pradesh,
serialNumber=192F2423E128DC1CC004DD8FF22B3
F2FFC3D1EF75981FCBEF3B2B76823F270F7,
cn=ARUN NAIR
Date: 2023.12.27 11:06:52 +05'30'
