Madhya Pradesh High Court
Badan Singh vs State Of M.P. on 5 March, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:5175
1 CRA-666-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 5 th OF MARCH, 2025
CRIMINAL APPEAL No. 666 of 2006
BADAN SINGH
Versus
STATE OF M.P.
Appearance:
Shri M. L.Yadav, Advocate for the appellant.
Shri Mohit Shivhare, Public Prosecutor for State.
ORDER
This appeal under Section 374 of Cr.P.C. has been preferred by
appellant against judgment dated 21.8.2006 passed by Special Judge
(Dacoity), Bhind in case No.34/2005 whereby appellant has been convicted
for the offence punishable under Sections 25(1-B)(A) of Arms Act read with
Section 11/13 of The Madhya Pradesh Dakaiti Aur Vyapaharan Prabhavit
Kshetra Adhiniyam, 1981 (in short 'MPDVPK Act') and sentenced to
undergo three years RI with fine of Rs.2500/- with usual default stipulation.
Prosecution story in brief is that on 22.3.2005 at about 7:30 AM,
police got discreet information that appellant is going to meet dacoity gang
of Saleem. Police intercepted him and during search a Katta of 315 bore has
been recovered from his possession and after conclusion of investigation,
charge-sheet has been filed.
Learned trial Court has framed charges for the aforesaid offences.
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Appellant/accused denied all the charges. Appellant abjured his guilt and
pleaded complete innocence. Prosecution has examined as many as 5
witness, and after completion of evidence, conviction and sentence of
appellant as mentioned hereinabove. Being aggrieved by the aforesaid
judgment, the appellant has preferred present appeal before this Court.
Learned counsel for appellant contended that judgment of trial Court is
contrary to the law and facts on record. The impugned order is neither legal,
nor proper, the trial Court was wrong in believing the prosecution witness.
Independent witness of seizure have been turned hostile and prosecution has
relied only upon police witness. Hence, he prays that impugned judgment
passed by trial Court be set aside.
Per contra, learned Public Prosecutor for State/respondent opposes the
prayer and prays for its rejection by supporting the impugned judgment
passed by trial Court as recorded on proper appreciation of evidence and
same does not call for any interference.
Heard both the parties and perused the record with due care.
Sub Inspector Kaushal Surya (PW-5) in his statement before trial
Court stated that on 22.4.2005, when he was SHO at Police Station
Nayagaon, he got discreet information from informant that member of
Saleem Gang Badan Singh is going to beat his relative. Act upon the said
information along with police force, he reached Sarsai and went to the forest
and intercepted appellant Badan Singh and recovered loaded Katta of 315
bore and seized before the witness on the spot through seizure memo
(Annexure P-5) and arrested him through arrest memo (Annexure P-2) and
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thereafter lodged an FIR (Annexure P-8) at Police Station Nayagaon but both
the independent witness of seizure memo (Annexure P-1) Pancham
Singh(PW-1) and Mansukh (PW-2) turned hostile and not supported the case
of prosecution. They have categorically stated that appellant was never
arrested before nor any Katta has been recovered from his possession. No
other eye witness has been examined by prosecution. Therefore, it is
apparently clear that independent witness of seizure memo does not support
the case of prosecution. It is also observed the weapon in question is not
produced before trial Court and no explanation for non production of this
material article has been offered by prosecution.
Apart from above, nothing is available on record to indicate that after
the seizure whether the seized arms were kept. Thus, even the search is
accepted, in the absence of any evidence on record, that seized arms being
secured, sealed and deposited in Malkhana, it is very difficult to accept the
version of Investigating Officer that Fire Arms were recovered from
possession of appellant.
The Coordinate Bench of this Court in case of Chunta Vs. State of MP
reported in 1999 Cr.L.R. (MP) 80 has held that seized arms were not
produced in court and no evidence had been brought on record to indicate
where the arms were kept after seizure, therefore, prosecution has failed to
prove the charge under section 25 and 27 of Arms Act. This citation is
completely applicable in this present case and the seizure of fire arms from
possession of appellant is doubtful.
So far as the question of grant of sanction is concerned, counsel for
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appellant placed reliance upon judgment of this Court in the case of Sukhlal
Banshi Lodhi Vs. State of MP reported in 1998(1) MPLJ 288 wherein this
court has held as under:-
"Section 39 of the Arms Act provides that
previous sanction of the District Magistrate is
necessary for the prosecution against any
person in respect of any offence under
Section 3. Section 3 provides for license for
acquisition and possession of firearms and
ammunition. Thus, unless there is a previous
sanction of the District Magistrate a person
cannot be prosecuted in respect of any
offence under section 3. Sanction is not a
mere formality. It has to be proved that it was
granted by the authority after applying his
mind. It must be shown that the firearm or
weapon with respect to which sanction was
prayed was actually taken to the authority
concerned and after looking to it the relevant
papers, understanding and after applying his
mind sanction was granted."
In the instant case, Reader Yogendra Singh Kushwah (PW-4) admitted
in his deposition that he did not produce Katta before District Magistrate. He
deposed that seized article were produced by the Constable Lalluram but
Lalluram was not examined before trial Court. Therefore, nothing else has
been brought on record to suggest that seized fire arm was made available to
the sanctioning authority.
In the absence of any supporting material, this Court is of the
considered opinion that mere statement of Investigating Officer without
corroborating independent witness is not reliable and on the basis of
statement of Yogendra Singh (PW-4) prosecution has failed to establish that
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prior to sanction, seized weapon was inspected by sanctioning authority.
Therefore, this Court is of the considered opinion that the entire prosecution
story is doubtful and prosecution has failed to prove that seized weapons
were recovered from the possession of present appellant. Trial Court has not
considered all these aspects. Therefore, order of conviction and sentence
recorded by trial Court cannot be sustained and same is liable to be set aside.
Resultantly, this appeal is allowed and order of conviction and
sentence passed against the appellant is hereby set aside and appellant is
acquitted from all the charges for which he has been tried. Appellant is on
bail. His bail bonds be cancelled. Fine, if any, deposited, shall be refunded to
him.
Let a copy of this judgment be sent to trial Court for necessary
compliance.
(ANIL VERMA)
JUDGE
