MUKESH RAWAT Vs. STATE OF M.P.

JUDGEMENT

(1.) With the consent of learned counsel for the parties this matter is finally heard. This criminal revision has been filed by the petitioners being aggrieved by judgment dated 26.12.2018 passed by the Third Additional District Judge, Datia, District Datia in Criminal Appeal No.131/2018, affirming the sentence awarded to the revision petitioners by the learned Judicial Magistrate First Class, Datia, in Criminal Case No.818/2008, thereby convicting the petitioner No.1 namely Mukesh Rawat with one year rigorous imprisonment under Sec. 25(1-B) (a) of the Arms Act and fine of Rs. 500.00 and in default of fine one month simple imprisonment. Similarly, he has been convicted under Sec. 353 of Penal Code with one year rigorous imprisonment and fine of Rs. 500.00 and in default of fine one month simple imprisonment. He has further been convicted under Sec. 336 of Penal Code with one year rigorous imprisonment and fine of Rs. 100.00 and in default of fine seven days simple imprisonment. It is pointed out that petitioners No. 2 and 3 namely Banty @ Harimohan and Arvind Rawat have been convicted under Sec. 353 of Penal Code with one year R.I. and fine of Rs. 500.00. In case of default of payment of fine one month simple imprisonment.

(2.) Learned counsel for the petitioners has drawn attention of this Court to the fact that evidence on record has not been appreciated by the Courts below in the correct perspective. It is pointed out that Brijmohan Chiroliya (PW-1), author of the F.I.R. (Ex.P-1) in his cross examination in paragraph 4 has admitted that it was pitch dark and faces of any of the accused were not clearly visible. He also admitted that tractors had passed and they had followed the tractors but since gravel (bajari) was dumped away they could not proceed further. In the same way he has admitted in paragraph 4 that when they were confiscating the dumped gravel(bajari) then the villagers gave the names of the accused, as a result of which, he had mentioned the names of the accused in the F.I.R. However, he admitted that he cannot give the name of any person who had given name of the accused to him. In paragraph 5, he has admitted that he had not seen any of the accused nor identified them but had only heard sound of a gun shot from a katta. He had not seen that who had opened such fire. He has also admitted that Sobaran Singh (PW-2), Suresh Chand (PW-4) and Heera Singh Solanki (PW-5) were not on the spot. He has also admitted that spot map was prepared after 17 hours. In paragraph 6, he has admitted that he had not narrated to the Police that accused had dumped one trolley of sand in front of Panchayat Bhawan. He also admitted that sound of tractor was so much, therefore, he could not hear as to what accused had said to them. Deputy Ranger Pravank Pratap Singh, (PW-3) has been declared hostile and has not supported the case of the prosecution. Thus, it is apparent that Brijmohan Chiroliya (PW-1) is a hearsay witness and had given names of the accused as per narration of some unknown villagers and had not given such names in the F.I.R. on his own.

(3.) Seizure of the arm has been made vide Ex.P-12 from Mukesh Rawat on 02.08.2018. At serial No.13 of the seizure memo, there is no seal as should have been affixed on the article so seized i.e. the gun and bullet. A.S.I. Man Singh (PW-10) has admitted that there was no seal on the katta which was produced before the Court. He also admitted that the seizure kit bears signatures of witnesses Deepak and Gajendra so also of the accused but that does not contain his own signatures. Witness of seizure Gajendra (PW-6) has turned hostile and has not supported the prosecution case. It is submitted that he had signed on Ex.P-12 at the Police Station and no seizure was made in front of him. Similarly, Deepak Rawat (PW-8) has also been declared hostile and has not supported the seizure and deposed that he too signed on the seizure memo at the Police Station whereas as per Ex.P-12 seizure was reportedly made at crusher of the sugarcane in the farm of the accused at village Ghughsi. All these facts show that seizure of the arm has not been proved and, therefore, no case is made out under Sec. 25(1-B) (a) of the Arms Act.