Madhya Pradesh High Court
Mukesh And Anr. vs The State Of Madhya Pradesh on 9 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 9 th OF MAY, 2024
CRIMINAL APPEAL No. 208 of 2013
BETWEEN:-
1. MUKESH AND ANR. S/O KAMAL SINGH, AGED
ABOUT 32 YEARS, OCCUPATION: AGRICULTURIST
GRAM AALNIYA P..S. KALAPIPAL (MADHYA
PRADESH)
2. OMPRAKASH S/O HINDUSINGH , AGED ABOUT 26
YEAR S , OCCUPATION: AGRICULTURIST GRAM
AALNIYA P.S. KALAPIPAL DIST. SHAJAPUR
(MADHYA PRADESH)
.....APPELLANTS
(NONE FOR THE APPELLANTS )
AND
THE STATE OF MADHYA PRADESH THROUGH P.S. AJK,
SHAJAPUR (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:
ORDER
This appeal has been filed by the appellants under Section 374 of
Cr.P.C. being aggrieved by the judgment dated 28.01.2013 passed by the
learned Special Judge (Atrocities), District Shajapur in S.S.T.No.53/2010. By
the impugned judgment, the trial Court has convicted the appellant no.1-Mukesh
for offence under Section 334 of IPC and sentenced to three counts (one
month R.I each count) and appellant no.2- Omprakash for the offence under
Section 334/34 of IPC and sentenced to three counts (One month R.I.each
count) and under Section 25(1-B) (B) of the Arms Act and sentenced to
undergo 1 year R.I. each with fine of Rs.500/-each with default stipulation.
2. Being aggrieved by the impugned judgment, the appellants 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. There are material contradictions
and omissions in the statement of the prosecution witnesses. The Investigating
Officer was unable to prove that seized talwar was sealed on his part and put in
proper way in Malkhana. The independent witness turned hostile and did not
support the prosecution case. On these grounds, prays for setting aside the
impugned judgment and acquittal of the appellant.
3. The trial Court framed charges against the appellants, which was
denied by the appellants. The trial Court after recording the evidence and
hearing the arguments found the appellants guilty for offence under the
aforesaid Sections and convicted them as aforesaid.
4. Learned counsel for the State supported the impugned judgment and
prays for dismissal of the appeal.
5. Now question arises whether the appeal of the appellants is
admissible or not?
6. So far as conviction for offence under Sections 334, 334/34 of the
IPC is concerned, I have gone through the evidence adduced by the
prosecution and examined it minutely. From perusal of overall evidence on
record, it is clearly established that learned trial Court did not commit any error
in convicting the appellants under Sections 334, 334/34 of the IPC. Hence,
findings recorded by the trial Court with respect to conviction are affirmed.
7. So far as sentence is concerned, appellants remained in custody
from 17.06.2010 to 18.06.2010. Accused were 32 and 26 years of age at the
time of incident and now they are near about 46 and 40 years old. Hence, while
modifying the sentence of imprisonment, appellants are sentenced to the period
already undergone by them with fine as imposed by the trial Court. The
appellants are on bail. Their bail bonds stand discharged accordingly.
8. So far as offence under Section 25(1-B) (B) of Arms Act is
concerned from perusal of the record, it is found that the Investigating Officer
stated in examination in chief that he seized the talwar from the appellants, but
he did not stated in the examination in chief that he sealed the talwar on the
spot. It is true that evidence of the police officer cannot be discarded on the
basis that independent witness has not supported 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. Prosecution was
unable to produce Malkhana register by which seized article was put in
Malkhana in proper manner.
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.
11. In view of the aforesaid discussion, it is found that prosecution is
unable to prove that seized talwar was seized from the appellants. So in the
considered opinion of this Court, trial Court has committed error in holding the
accused/appellants guilty for offence under Section 25(1-B) B of the Arms
Act.
12. Accordingly, the appeal is partly allowed. The impugned judgment
of conviction and sentence of the accused/appellants imposed by the trial Court
for offence under Section 25(1-B) (B) of the Arms Act is set aside and
appellants are acquitted of the charge. Their 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
