When police failed to prove that 12 bore gun was not used nor fired at the police party - the story of the prosecution stood as untrue - as no independent witenss speaks the same even though avaialble - Hence the conviction based on presumption not maintainable .
The police parties were deputed in different directions and warning to surrender was given to Rajesh Shukla.
On such warning, as stated by them, firing was made from inside thehouse of Jhallu Kachhi. H.C. Akbar Singh Gaur (PW5) in crossexamination clearly said that the said firing was towards the hill area and not towards the police party.
None of the saidprosecution witnesses have seen the appellant firing on police party, with intention or knowledge to commit an offence, proving his guilt.
Subsequently, as alleged, Rajesh Shukla andappellant had surrendered along with guns before the police party.
As per the said testimony, it is apparent that the intention and knowledge to commit an act by them towards thepolice party has not been proved beyond reasonable doubt. Simultaneously, as per the statement of prosecution witnesses, it has come on record that all the proceedings including the arrest, seizure have been prepared at the police station and not on the spot.
However, defence as taken by the appellant appears to be plausible, and creates reasonable doubt in proving the guilt by prosecution.
It is not out of place to mention that three independent witnesses Shivnath Anuragi(PW7), Barra (PW8) and Jhallu Kachhi (PW13), in whose house incident had taken place, had not supported the case of prosecution.
As per the crossexamination of prosecution witnesses, it is apparent that Santosh Shukla was present on the spot.
He was having good relations with the SHO and inimical with the accused Rajesh Shukla. However, being independent person, why in his presence, the seizure and the arrest were not made by police, is not explained and highly doubtful.
There is no independent witness in any of the proceedings though may be available.
The High Court, while convicting the appellant by the impugned judgment, merely observed that because accused were prized goons and were absconding and as per the deposition, it could not be said thatthe appellant No. 2 was not involved because he was arrested on spot and taken to police station.
In this regard, it is required to observe that the prosecution is required to prove itscase beyond reasonable doubt and the conviction cannot be based merely on the basis of presumption to rule out the presence of accused.
as per FSL Report Exb. P17A, it is clear that from the right barrel of 12 bore gun, Exb. A2, fire could not be done and the empty cartridges, which were received, have not been fired from the left barrel.
Therefore, the use of 12 bore gun which was seized from the appellant is not proved along with live and empty cartridges.
As the use of the gun itself is not established by theFSL report, therefore, the conviction under Section 27 Arms Act also is not justified. Consideringall these aspects, in ourconsidered opinion, the ingredients of Section 307/34 IPC and Section 27 of the Arms Act have not been proved by the prosecution beyond reasonable doubt, proving the guilt of the accused/appellant.
In view of the foregoing, the Trial Court and High Court committed error in convicting the appellant for the charge under Section 307/34 IPC read with Section 27 Arms Act.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 388 OF 2021
VASUDEV …APPELLANT
Versus
STATE of M.P. ...RESPONDENT
JUDGMENT
J.K. Maheshwari, J.
Arising out of the judgment dated 14.02.2020 passed in
Criminal Appeal No. 622 of 2009 by the High Court of Madhya
Pradesh, judicature at Jabalpur, confirming the judgment dated
7.3.2009 in S.T. No. 185 of 2006 passed by the 6th Additional
Sessions Judge (Fast Track Court), Chhatarpur, the present
Special Leave Petition has been filed, in which leave was
granted directing to call for the record. However, this appeal has
been registered and heard on priority basis as the appellant
being the senior citizen.
1
2. The case of the prosecution in brief is that on 15.6.2006,
Sub Inspector R.S. Bagri (PW6) along with SubDivisional
Officer Dr. Sanjay Agrawal (PW10) reached village Mahoi Kala
on having information at Police Station Sarwai that
absconding accused Rajesh Shukla was hiding with his
associate members in the said village. It was also informed
that accused Rajesh Shukla was beside the house of Jhallu
Kachhi of the said village. The police personnel of nearby police
stations were called at Village Mahoi Kala. Thereafter, under
the command of S.D.O.P. Dr. Sanjay Agrawal (PW10), police
parties were prepared to apprehend the accused. The police
parties surrounded the house of Jhallu Kachhi. Dr. Sanjay
Agrawal (PW10) challenged the accused persons to surrender
and come out of the house of Jhallu Kachhi. The accused
Rajesh Shukla did not surrender and open the fire on the police
personnel from inside the house. The police parties retaliated
the firing. After sometime, the accused Rajesh Shukla
expressed his wish to surrender. Accordingly, the accused
Rajesh Shukla along with accused/appellant Vasudev Shukla
2
surrendered before the police and they were taken into custody.
After surrendering, one 315 bore rifle along with 19 live
cartridges and 5 empty cartridges were recovered from accused
Rajesh Shuka, whereas one 12 bore double barrel gun along
with 20 live cartridges and 7 empty cartridges were recovered
from accused Vasudev Shukla. The first information was
registered as Exb. P18. The weapons, so surrendered, had
been seized at the police station along with live cartridges Exb.
P4 to P6. The accused persons were arrested vide arrest
panchnama Exb. P9 and P10. After completion of the
investigation, challan was filed. As the case was triable by the
Court of Sessions, therefore, it was committed to the competent
court, where the charges under Sections 307/34 read with
Section 3/25(1B)(a) and Section 27/34 of the Arms Act were
framed against both the accused. The accused abjured their
guilt and demanded trial by taking a defence of false
implication. AppellantVasudev specifically taken defence
that after coming back from the jail, he had surrendered his
son Rajesh in P.S. Sarwai. The police personnel have prepared
3
a false case sitting in the police station, implicating the
appellant and caccused Rajesh Shukla in this case.
3. Prosecution has examined as many as 16 witnesses,
while the accused has not examined any witness in defence.
Trial Court, after referring the statement of the witnesses,
convicted the accused persons on taking pretext that they were
aware regarding the challenge of the police party for surrender.
Instead of surrendering, the accused persons fired gun shots,
which were retaliated by the police party. After sometime, both
the accused had surrendered throwing their guns. The Trial
Court, further observed that guns so seized, may fire and the
used and unused cartridges of 315 bore as well as a 12 bore
double barrel gun were seized, which finds support from the
FSL Report Exb. P17A regarding use of the said guns. As the
accused persons were holding the guns, without any license,
therefore, they have been convicted for the charges under
Section 307/34 IPC read with Section 3/25 (1B)(a) and 27 of
the Arms Act and directed to undergo R.I. for four years with
fine of Rs. 2,000/ and R.I. for two years with fine of Rs. 1000
4
and R.I. for three years with fine of Rs. 1000 respectively with
default sentences. It was directed by the Court that the
aforesaid sentences shall run concurrently.
4. The judgment passed by the Trial Court was challenged
before the High Court by filing Criminal Appeal No. 622 of
2009. As the appellant Rajesh Shukla died on 19.2.2016,
therefore, his appeal was dismissed as abated, while the appeal
of the appellant Vasudev Shukla has been dismissed confirming
the judgment of Trial Court in toto.
5. Shri H.K. Chaturvedi, learned counsel appearing for the
appellant has argued with vehemence that as per the case of
prosecution itself, there was no apprehension of abscondment
of appellant. From the statement of prosecution witnesses, it is
clear that deceased coaccused Rajesh Shukla was allegedly
said to be hiding himself in the house of Jhallu Kachhi and not
the appellant. The prosecution witnesses have not named and
seen the appellant firing on them, having intention and
knowledge to commit the murder. As per the seizure Exb. P5,
12 bore double barrel gun, 20 live cartridges and 7 empty
5
cartridges were seized from him. FSL report Exb. P17A clearly
indicates that there was disparity to match TC (A2 L.B.) for the
firing pin impression to Exb. EC 6,7,8,9,12. Therefore, those
five cartridges were not fired through the left barrel of 12 bore
gun Exb. A2. Similarly, the right barrel of 12 bore gun Exb.
A2 , had not been used in firing because it was cut and short
by which weapon could not be matched with the cartridges. It
is further urged that as per the testimony of the witnesses, it is
clear that they had not seen firing any of the accused on police
party. It is said the object of the fire was towards hill and not
towards the accused persons as is apparent from the
statement of H.C. Akbar Singh Gaur (PW5). In such
circumstances, the prosecution has failed to prove the intention
and knowledge to commit an act which may amounting to
commission of an offence attempt to murder. In absence
thereto, the conviction of the appellant for an offence under
Section 307/34 of IPC is contrary to the settled proposition of
law. In support of his contention, reliance has been placed on
the judgment of this Court in the case of Parsuram Pandey
6
and others vs. State of Bihar, AIR 2004 SC 5068. It is
further urged that the right barrel of 12 bore gun seized from
appellant was cut and short, making it impossible to fire from
this weapon and the empty cartridges have not been fired from
left barrel as apparent from FSL report Exb. P17A. Therefore,
the offence under Section 27 of the Arms Act has not been
made out. Even assuming that the offence under Section 25(1
B)(a) is made out, sentence as awarded by the Trial Court is two
years, which the appellant has already served as per the report
available on record. Therefore, while setting aside the
conviction and the sentence for an offence under Sections
307/34 and 27 Arms Act, appellant may be directed to be
released
6. Per contra, Shri Mukul Singh, learned counsel
representing the State submits that the Trial Court and the
High Court have rightly convicted and sentenced the appellant
by the impugned judgment, however interference in this appeal
is not warranted in exercise of power under Article 136 of the
Constitution of India.
7
7. After hearing learned counsel for the parties, first of all, it
is required to be seen what are the ingredients to prove an
offence under Section 307 of IPC. On perusal of the provisions,
it is apparent that whoever does any act, with intention or
knowledge, which may cause death and in furtherance to the
said intention and knowledge, he was doing an act towards it.
However, it is required to be seen by the evidence brought on
record by the prosecution whether the ingredients to prove, the
case of prosecution beyond reasonable doubt, the charge under
Section 307/34 IPC have been established. In this regard, the
star witnesses of the prosecution are ASI J.P. Verma (PW 4),
H.C. Akbar Singh Gaur (PW5), SDOP Dr. Sanjay Agrawal (PW
10), H.C. Uday Raj Singh (PW14), S.I. Arvind Singh Dangi
(PW15) and S.I. R.S. Bagri (PW16). As per their testimonies, it is
apparent that an information of hiding by the deceased accused
Rajesh Shukla with his associates in the house of Jhallu
Kachhi of village Mahoi Kala was received. In their statements,
it is not said that appellant was with him. The police personnel
of nearby police stations were called at Village Mahoi Kala.
8
Thereafter, under the command of S.D.O.P. Dr. Sanjay Agrawal
(PW10), police parties were prepared to apprehend the accused.
The police parties were deputed in different directions and
warning to surrender was given to Rajesh Shukla. On such
warning, as stated by them, firing was made from inside the
house of Jhallu Kachhi. H.C. Akbar Singh Gaur (PW5) in crossexamination clearly said that the said firing was towards the
hill area and not towards the police party. None of the said
prosecution witnesses have seen the appellant firing on police
party, with intention or knowledge to commit an offence,
proving his guilt. Subsequently, as alleged, Rajesh Shukla and
appellant had surrendered along with guns before the police
party. As per the said testimony, it is apparent that the
intention and knowledge to commit an act by them towards the
police party has not been proved beyond reasonable doubt.
Simultaneously, as per the statement of prosecution witnesses,
it has come on record that all the proceedings including the
arrest, seizure have been prepared at the police station and not
on the spot. However, defence as taken by the appellant
9
appears to be plausible, and creates reasonable doubt in
proving the guilt by prosecution. It is not out of place to
mention that three independent witnesses Shivnath Anuragi
(PW7), Barra (PW8) and Jhallu Kachhi (PW13), in whose house
incident had taken place, had not supported the case of
prosecution. As per the crossexamination of prosecution
witnesses, it is apparent that Santosh Shukla was present on
the spot. He was having good relations with the SHO and
inimical with the accused Rajesh Shukla. However, being
independent person, why in his presence, the seizure and the
arrest were not made by police, is not explained and highly
doubtful. There is no independent witness in any of the
proceedings though may be available. The High Court, while
convicting the appellant by the impugned judgment, merely
observed that because accused were prized goons and were
absconding and as per the deposition, it could not be said that
the appellant No. 2 was not involved because he was arrested
on spot and taken to police station. In this regard, it is
required to observe that the prosecution is required to prove its
10
case beyond reasonable doubt and the conviction cannot be
based merely on the basis of presumption to rule out the
presence of accused. It is to further observe that as per FSL
Report Exb. P17A, it is clear that from the right barrel of 12
bore gun, Exb. A2, fire could not be done and the empty
cartridges, which were received, have not been fired from the
left barrel. Therefore, the use of 12 bore gun which was seized
from the appellant is not proved along with live and empty
cartridges. As the use of the gun itself is not established by the
FSL report, therefore, the conviction under Section 27 Arms Act
also is not justified. Considering all these aspects, in our
considered opinion, the ingredients of Section 307/34 IPC and
Section 27 of the Arms Act have not been proved by the
prosecution beyond reasonable doubt, proving the guilt of the
accused/appellant.
8. In view of the foregoing, the Trial Court and High Court
committed error in convicting the appellant for the charge
under Section 307/34 IPC read with Section 27 Arms Act.
Therefore, we allow this appeal in part and setaside the
11
conviction and sentence for the said charges, and acquit the
appellant for the same, except of the charge under Section
25(1B)(a) of the Arms Act. The appellant has already served
the sentence for the charge under Section 25(1B)(a) of the Arms
Act, therefore, if he is not required in any other case, be
released forthwith from jail.
9. Accordingly, this appeal is allowed in part and disposed
of.
………………………….J.
[ INDIRA BANERJEE ]
……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
FEBRUARY 1, 2022.
12
