IMPORTANT POINT
Prosecution is required to prove its case beyond reasonable doubt and conviction cannot be based merely on the basis of presumption to rule out presence of accused.

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.

2. The case of the prosecution in brief is that on 15.6.2006, Sub Inspector R.S. Bagri (PW6) along with Sub-Divisional 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 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. Appellant Vasudev 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 a false case sitting in the police station, implicating the appellant and co-accused 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 and R.I. for three years with fine of Rs. 1000 respectively with default