Madhya Pradesh High Court
Banti @ Anand vs The State Of Madhya Pradesh on 26 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 26 th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 503 of 2012
BETWEEN:-
BANTI @ ANAND S/O NAVRATAN AJMERA, AGED
ABOUT 34 YEARS, OCCUPATION: TOY MAKER R/O 509/7,
NEHRU NAGAR, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANOJ KUMAR SAHANI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION MIG, INDORE (MADHYA PRADESH)
.....RESPONDENT
( BY SHRI MAYANK MISHRA - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
This appeal has been filed by the appellant under Section 374 of Cr.P.C.
being aggrieved by the judgment dated 09.04.2012 passed by the learned XIV
Additional Sessions Judge (Fast Track Court) Indore in S.T.No.451/2011. By
the impugned judgment, the trial Court has convicted the appellant/accused for
the offence under Section 25(1B)(A) of the Arms Act and sentenced to undergo
1 year R.I. with fine of Rs.1,000/- and in default of payment of fine to further
undergo 1 month additional R.I.
2. The prosecution story in brief is that on 29.09.2009 at about 9:30
P.M. accused/appellant Banti Ajmera along with Jitendra Suraiwar, Dheeraj
Jaiswal and others came to the complainant and asked for money collected for
Garba Mandal and on refusal by him, they started abusing him with filthy
language thereafter Dheeraj and Banti started beating the complainant with kicks
and fists and Jitendra fired at him due to which the complainant ran away and
entered the house of Vishal Jeenwal. Accordingly, the victim/injured lodged FIR
against the appellant and co-accused persons and after due investigation, police
filed charge-sheet against the appellant before the trial Court.
3. The trial Court framed charges against the appellant, which was
denied by the appellant. The trial Court after recording the evidence and hearing
the arguments found the appellant guilty for offence under the aforesaid Section
and convicted him as aforesaid.
4. Being aggrieved by the impugned judgment, the appellant filed this
appeal on the ground that the trial Court failed to see that there is no evidence
on record to prove that accused was guilty. The prosecution witness Satish
Duth (PW-3) turned hostile and did not support the Investigating Officer. The
Investigating Officer was unable to prove that seized pistol was sealed on his
part and put in proper way in Malkhana. On these grounds, prays for setting
aside the impugned judgment and acquittal of the appellant.
5. Learned counsel for the State supported the impugned judgment and
prays for dismissal of the appeal.
6. Now question arises whether the appeal of the appellant is admissible
or not?
7. After hearing the learned counsel for the parties and perusal of the
record, it is found that R.S.Patidar (PW-8) ASI of Police Station Neelganga,
district Ujjain on 29.09.2009 stated in examination in chief that he arrested the
appellant and took the memorandum Ex.P-4 and on the basis of Ex.P-4 he
seized the pistol from the appellant Banti Ajmera. Seizure memo is Ex.P-3. The
witnesses of the seizure memo Ex.P-3 and memorandum Ex.P-4 are Jagdish
Yadav, and Satish Kumar Duth. Jagdish Yadav was not examined by the
prosecution and Satish Kumar Duth (PW-3) has not supported the prosecution
witnesses. He stated in examination in chief that he did not know the appellant
and police had not done seizure in his presence. He was declared hostile by the
prosecution and was cross examined. In cross examination Satish Duth (PW-3)
denied the suggestion given by the government counsel and stated that police
had not seized the pistol in his presence.
8. Hence, considering the evidence of Satish Duth (PW-3) it is found
that he has not supported the investigating officer R.S.Patidar (PW-8). It is true
that evidence of the police officer cannot be discarded on the basis that
independent witness have not support him. It also true that evidence of police
officer must be examined as independent witness and if it is found that he was
doing investigation without any malicious intention then his evidence cannot be
discarded on the basis that he was a police witness. In this case, R.S.Patidar
(PW-8) had not dared to say that he sealed the pistol on the spot. Prosecution
was unable to produce Malkhana register by which seized article was put in
Malkhana in proper manner. So, considering the seizure memo Ex.P-3 it is
found that seized katta was not sealed on the spot and no sealed sample was
found in Ex.P-3 and witnesses of Ex.P-3 and Ex.P-4 have not supported the
seizure memo and memorandum and prosecution had not produced the
Malkhana register before the trial Court.
9. In the case of Varghese Vs. State of Kerala 1998 (1) MPWN
S.N. 209 SC and Jasbir Singh Vs. State of Punjab reported in AIR 1998
SC 1660 it was held that weapon was sealed on the spot and there is no
evidence produced by the prosecution that after seizing the weapon it was kept
in Malkhana of Police Station properly and not produced Malkhana register,
then seizure of the weapon is doubtful.
10. In the case of State of Rajasthan Vs. Gurmail Singh reported
in AIR 2005 SC 1578 the Apex Court held that if it was not proved by
evidence that seized weapon was kept in Malkhana in sealed situation, then
prosecution case may be doubtful.
9. In view of the aforesaid discussion , it is found that prosecution is
unable to prove that seized pistol was seized from the appellant. So in the
considered opinion of this Court, trial Court has committed error in holding the
accused/appellant guilty for offence under Section 25(1B)(A) of the Arms Act.
10. Accordingly, the appeal is allowed. The impugned judgment of
conviction and sentence of the accused/appellant imposed by the trial Court is
set aside. His bail bonds shall stand discharged. A copy of this order be sent to
the concerned trial Court for information.
C.C. as per rules.
(HIRDESH)
JUDGE
RJ
