w HIGH COURT OF CHHAn‘IssAaH AT sxgspua Single Bench: Hon'bie Shri Dmp Raosnheb Wukh. J. SantoshKLmar ~ Vs. State of ‘C’Vhhm‘fisgnrh ’ & , Criminal ml No‘ 95412004 Gabbm‘ Pmel & 'two ofhzr-s Vs. {I ' ‘ Sfnfe of Chhnt'tigwh Appeiim'fs-Gubbur Paiei d: HeemM by 5hri Pushpendru Fwd, Advocate. Appellan?-Lakhm Lat by Shri 6w-udev Slur-m, Advacafe. Appellant-Smfosh Kunmn by Shri V.K.Pmdey, Advocate. Smte by Shri UK‘S‘Chandel, P.L. ,LQD 6 g FIN T ‘ (Delivered on 13.01.2006) This judgmem :shqu govern Cr. Appeal No.967/2004 preferred by Sanfosh ‘Kumar and Cr; Appeal! No‘954!£994. preferred by aobbar Patel, Lakhan La! and Himh! gri§§ng 9y? 9f judgmem dated 13.10.2004 delivered by 3” AM Sessicas (Fast Track Caurf) in Sessions' Trial No.231/z004. where-by mg 6 appellants in the abovemen'l'ionad bMh the appcals ware ' convicted under Sections 399, 492 of the I.P.C. md under Section Z5(1-B)(a) and 25 (1-8) (b) of Arm: Act and wore sentenced to R1. for sevm years md fine amount of Rmtmln in defwlt, to undergo furtr R. for- one niont oo nder- 9 to e n m mh 2 t IC R y fie f \, n t t adti 3 me S 1-B ys In f th t e 'o h h u 1fé f A A 1959. Z. Briefly stated h roecution story is hat Station House Officer, olice tation hno mesh Pmdey P, eeeived informaio n he nterveing niht f 6*“ - 17* F.“ am so l mo d r e n p f pn g dny n fr he s s, mh ondey left or th lac f ccwrenoe mo rreste the appellants and three others. Appellant-Gobb- ad n his possession one country made istol and cartridg of 303 bore whieh ere seized vide E.1,-appellontirolol o al found possession of a country mad pistol and one liv wtrido sh e e oe whi he I h eh u Section 39 I.P.C., RI. for seven years and to my o fine of RsJOOF in defwlt undrgo further RI. for- oe, onth under section 40 of he .P.., I. for three earn and n o Rs100/-; i defwl‘ of which, o under dional ,1, for month each under ettion 25()(o) and RI. for three ear 0nd fine of Rs.100/-, deault of e name, o undargn furthr KI. forne mont eac nder Section 25(iib) o rms ct, tn o t in g o 1 A 2 that 6 - 7 perns of crimina tecedent ha assembled nea the canal in villqe Sonthi who wre i ossession o dmaerous weaos and were makin preparations to commit roit i the village. After inoming t enior police officer es P f e pe o o ad a h i 7—4 te ps t P S Cmp .W7 r p e w x.P-H wo oo in / @ were sewed snde ExPZ One long and sha‘p knife having a sword-[Ike edge on me side m length 14 é” wag amud fmm *he appeHanf—Smfash vude Ex.P4 and 10 Jute bomb: were sawed fmm appellant-Lakhm vtde Ex.P5 From the spot ans LMKL: Ft‘zedom mofor‘ vehicle bearing Nada 12—8-5245 was dsa seized The setmd counfry made pistols wm uni 1'9 fhe Reserve Inspector Police for exammafmn wde ExP17. 5hr: Jugal Kishove Slngh Head Constable PW16 an «minafmn ef’ fhe smd weapons opmed fhat both fhe counh-y mada pisrals mm m working condmcn and bofh ‘rhe carfrldns war-a live cartmdges Upon this sanction to pmsecuie H1: asst-med appel‘anfs 6abbar Patel Hlmlal Lakhm md Smfosh along With three others was accorded by lhe Collector. Jonjgir—Chomhor undor' sgctlon 39 of Arms Act vude Ex.P.11. 3% After completion of invesfigatian fho appellonfs were pmsecu‘l‘ed lmdet‘ Sec'l'lons 399 402 of ‘H'le I P.C Md 25(1—3Xa) ' é Z5 (1-8) (b) of Arms Act 1959 The appellants ohmrsd the gull? pleaded Innocmce and led no evadence m dafance The paragraph 1 (supra). Co—occused Promod Kumor, Vuoy Kumar and Nlr'mal Kumar- who were also found mdang preparations for commuting dmcon‘y with the above manhoned appellant were msgcul’ed before Juvenile Cour-l sepa-ately ’\ F x @ ‘ 4. Learned counsel for the appeilanfs have placad rdimce an (hafuri Yadavmd oihers v. Sfafe of gmr mporfcd in (1979) 3 ‘ $.C.C. 430 in suppar't of their contention fhat mm faei' 9f assembly by 7 persom near *he village farik md movery sf rccuntry made pisfol and cartridges did no? Kestabtish their guilt under Section 399 G 402 I.P.C. Relianca was aka pinged an Asian Pamez, em, vs 50w. of NtTaf Dg/hi reported in 2003, C31.L.J.2525 (5C) in support of the contention mot on tho wblic wifneasas Le. Pramod Kumar Poi-cl P.W.1 and Bijur-em Vaéav P‘W‘Z examined in *hg «we did nof support fha prosemfian story, and *her‘efore, the friol Cour‘l' erraa in wholly plaeino reliance on the festimony of poiice personnel in order fa fatten the tiabiMy on 'l'he mused—persons. Ralimce was doc .ploead an (himfey (D) and ofha's v. Sfafe of MP, reporfad M2994 CRI.L.J .2384 in import of ‘their confmiion fho'i' fhc +ssfimony of Inspector Romesh Pondey ?.W.7 did not show #hof +he soizeé‘ caun‘l‘r'y made pistols, aar‘lt'im' sword~lik¢ knife and Ma bombs werevqmlod. The appellants +hough alleged fa have bean fully armed for commi'H’ing docoity did no? flee or resist moir- arr'est by firing, and therefore, ihe recovery of mm: and ammunil'lons from ihe, appellants was not proved by reliable evidence, and iherefooe, fhe appellants were milled +9 be acquitted. A decision render-ed in §hmym md grim-5 v, §fatr of MP. reported in 1992 (Z) VI8HA 237 was alno cited in $.ippor'l of ihe confenfion fhai' lime convemofion befwem fhe ,accnm’d persons ,mgr'ding making pupa-diam 1'9 aammif‘ damity was not proved, and therefore, bffencc undsr Saefien 399 .ond 402 of the I.P.C. was not rgitablishad against "the awllonts. It wasnhm vehamently arguad mat +hggmm kaf' sgnction for prosecuting 'themppeuam under- smian 39‘ gof'v- Arms Act was rm duly proved. Thenefar-e, charge undersecarian 25(1-BXQ) and 25(1-B)(b) of Arms Acf, 1959 was aha naf pram ‘ against We appellm‘ts. On fhe oiha- hand, *he 'mad seams! fer‘the stare mpported the Judgment of the Mal- Cam. 5. Having considered :the rival con‘teniianL I haw alseiasne through the recur-d of Session; (an. Na. 23ygnm,_ Nauhm Inspector Wash Pandey P’.W.7- nor- ,Consfable Dhmush Jamar Pmdey RWAwho had apprehended the appellmfs mar fheeanal hQve depused' fhaf’they heardnny such canvematian of tha appellants which ‘ was indicative of itheir granarMien fer committing any dacoity. I+ isundispufad m though the ppellants were alleged to be armedxwitkd‘eadly w¢aaansrvet neither any wwpan was used nor my, msistm- affgred hr them. Independant public witnzstzs Le. Pmmod Kumar' Patel P‘WJ. md BijuramVndnv P‘.W.2 did not ,aupporf the Mimi story andista‘ted that the police did not effect_any~ssizure in ‘ heir ”pnesen'ce near- the canal and they-knew nathina;-‘abaut‘~the ncident. Constable bhmush’ Kumoo Pondey P,w.4 has tin pOJ‘ogmph 8 statedithat r-he could not tell as to whatvwapans ere seized from-the appellants. His stotehtcnt in Weah 8 a t i w completely contradicts his statement in magmph 2 thd the ' oppeuants were making preparations far committing daeeitv aid ‘ country made pistol, 6mdn like knife and sword were saiad: ' It is also pertinent to note that this witness did not state that any jute bomb was seivprl from any of the appellants, Coming to the testimony of Inspector mmesh Pandey P.W,7 he aloo did not state that he heard the appellants making prewations for the purpose f committin dacoity. No conversaon of e appellants as heard b thi itness. His teamony does ot Sh that the country ade pistols cartridges d jute embs were sled immeitely after ffecin oeim from te ppellant§.' Even th seizure memo Exs.P.1, P., A P:§ ae not show that te ahove mentioned cntry made istols, cartridges, word like knife an ut bombs wer ed. 6. Perwal f seimre memo Exs.P.1, P2, . and P5 shows that seimr‘e was de n 17.4200 and the memo sent by Insneeto Romesh Pandey to the Reserv nspector is dated 253994: Neither seizur memo has any impression of the ea or does the requsition Ex.P.7 sent to the Reserve Inspect shows tha th w i 1 or t e we‘apons ere sealed and sent for eminstion: In the absence of any corroboration from e public witnesses he; Prad Kum Pal P.W.1 and Bijura'n Vadov P.W. end l the absence of any ev relatin o earing the conversatio of the aellants, e seizure of the foresaid articles from the apllants ecomes xemely oubtful. Romanchosom xxPzm o g ti th w y s w ri n ow m , m b ea da etg h a e 2 P Md ds h ou p d je e ml o P4 ma o .4 r e I 2 e sl n th mo ar te 2 aso in id once g t h n pp th a pe b etr d E dated 17.4.2004 wri'Hen by Inspeci'or Damesh Pmdey P.W.7 Clearly shows *hdl’ Consfable Dhanush Kumar Pandey P.W.4, and independenf witnesqwz Pramad [tumor Pa+el P.W.1 and Bijur-an Yadav P.W.2 were sent fa fhe ,spaf in camplgie darkness as advanced party to verify the secret informa‘l'ion received by him and they had affer- ver'ifying from fhe spof reported ‘Huf 6 - 7 persons were conversing and making preparafions +o cammi-r docoity. However, no such evidence h been adduced by the prosecufion. The testimony of Dhanush Kumar Pmdey P.WA isi wholiy unreliable in view of his sfa'i'emen'f inpar-a‘graph 8. 7. In )C'hafuri Ygdav and afherg v. §tgregf gihgr reported in (1979) 3"$.C‘.C. 430 relied on by fhe appellants, 'i’here was no evidence f0 show fho‘l' 'l'he nppelianfs had omembled for the purpose of commitfing dacoify or fhey had mode any preparations for commi'H'ing fhe some. The Apex Courf held fha‘f the mere fact that the appellants were found at LOO AM, did not by itself prove that the appellants had assembied for the purpose of committing dacoity or making preparations to accomplish that object and further held that there was no legal evidence‘to support charge under Section 399 and 402 LEG: against the appellants. InvC/ihafey (p) midi/Lem y. 5mm 3f U.P. reported in 2004 CRI.L.J.2384, none of the articles recovered from the appellants were sealed. It was held that prosecution had not mcceeded in establishing the guilt of the appellants beyond reasonable doubt. In the instant ease also. "~‘ n' X J the entire prosecutian sfory germs 1'0 be highly doubtful; The recovery cf fhe comtr-y made pis+ols from appelhnf—Gobbar Pa‘tei, Himlal, sword-like lmife from appellmf Smash and 10 jute bombkfrom appellmf-Lakhan Kumar hmie also no'r bean proved hy reliable evidence. The public wi+n¢sses did ne'r corroborate fhe testimony of Inspecfor Rgrnesh Panday PXWJ: Even Dhanush Kumnr Pandey P.W.4 in paragraph 8 of his testimony took a complete somersnnlt from what he deposed in his exominotion—in-chief. InAs/an Farm, etc" vs“ gym gfNc‘l of Qellu' reported in 2003 CRI.L.J .2525 (SC), in a cam Qnder the Terrorists and Disruptive Activities (Prevegition) Act (28 of 1987, the‘possession of revolver- and cartridges was held to be not proved since the public witnesses examined in the case did not support the prosecution version of the incident and it was not shown that these public witnesses were in my manner connected with the accused or had any reason why they would depose falsely in order to help the oppellonts and wouid not support the prosecution case. This applies with full force to the present case also. In 5hmvm and gfhgm y. §rgrg 9f MP. reported in 1992 (2) VIBHA 237, since the conversation between the accused-persons wm not specifically proved as to who was being proposed to be the victim of the intended doooity' relying on Chafuri Vadavs case (supra), it was held that the offence under Section 399 and 402 I.P.C. was not made out, /\ \ \ K Q. The provrufion in this case hm alsa na‘f examined *hg smcfion accorded by the District Magisfr-ate for prdsecu+ing the appellants vide ExPJL only one clerk M.P.vérma P,w,3 employed in the office ofthe Disfricf Magistrate was examined who has proved that he had puf his shori hignamms en fhe sanction memo bu+ nowhere in his evidence did he sign ihai ihe sanction order was signed by fhe .Disiricf Magicfra're, in fhe absence of proof of valid sanction for proseruting the appellants under section 39 of the Arms Act. The Charge under Seetien 25(1-Bxa) 25(1-Bxb) of Arms Act also fans. 10. The testimony of Inspector Ramesh Pandey P,W,7 is also rendered doubtful due to the fmt that though the appellants were alleged to be armedwith country made pistols, cartridges and jute bombs and making preparations to commit daeoity, yet they neither attempted to flee nor resorted to firing to avoid their arrest by the appellants. The prosecution evidence atso does not show that any resistance was offered by the appellants in their arrest. In the abovementioned factsond circumstances of the case, this renders the prosecution story extremely I doubtful. 11. After having considered the submissions made on behalf of the appellants and considering the evidence led by the prosecution in its entirety, I am of the considered opinion that the contentions raised by learned counsel‘for the appellmts are