2000 Supreme(MP) 1246

IN THE HIGH COURT OF MADHYA PRADESH
S.P. KHARE, J.
Guddu – Appellant
Versus
State of M.P – Respondent
Cr. Appeal No. 149 of 1993(J)
Decided On : 03-05-2000

Headnote:(1) Indian Penal Code, 1860 – S. 399 and 402 – Arms Act, 1959 – S. 25/27 – conviction under – cannot be based on vague, indefinite and imprecise evidence.

       (2) Criminal Procedure Code, 1973 – S. 161 – material evidence not finding place in police statement – improved statement at trial stage not believable.

        Short Note

       1. Appellants Guddu, Kishore, Mushtaq and Mastram have been convicted under sections 399 and 402 IPC and sentenced to rigorous imprisonment for four years and two years respectively. Appellant Guddu has been further convicted under section 25/27 of the Arms Act, 1959 and sentenced to rigorous imprisonment for one year.

       2. After hearing the learned counsel for both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellants for the aforesaid offences is not sustainable. The evidence is so vague, indefinite and imprecise that it is difficult to base conviction thereon. Makhanlal (PW 1) and Murlidhar (PW 2) are the panch witnesses who are said to have been taken by the police party with them. They are not in a position to speak with certainty what was seized from each of the four accused persons. They have admitted their signatures on the seizures memos Ex. P – 1 to Ex. P – 4. According to Makhanlal (PW 1) he was asked to sign on these papers at the police station.

       3. He has been declared hostile Murlidhar (PW 2) is not prepared to identify any of the accused persons. He is also not in a position to say what was seized from whom.

       4. Gangaram (PW 5) is the Head Constable. He has deposed that first of all he went to the place where the accused persons had assembled and heard them saying ^^xqjs;k es yEck dke djuk gS^^ But this statement is conspicuously missing from Ex. D – 1 which was recorded under section 161 CrPC. Therefore, this witness has made improvement at the stage of trial and he cannot be relied upon.

       5. A.P. Tiwari (PW 3) was the Station Omcer of Chhindwara Police Station. He has deposed that the appellants had assembled at new Subzi Mandi on Guraiya Road. He announced that the police has surrounded the accused persons and they should surrender. He caught hold of accused Mastram who was in possession of a 'chura'. It was seized as per seizure memo Ex. P – 5. The trial Court has not believed him on the point of seizure of chura from accused Mastram. This weapon was not sealed. He was denied the defence suggestion that Mastram was already in custody for 3 – 4 days.

       6. B.K. Parihar (PW 4) has deposed that he was Station Officer of Kudipura Police Station and he was called by the D.S.P. He was in one of the raiding parties.

       7. He has deposed that he caught hold of accused Mushtaq who was seen running in the torch – light. He does not say specifically which weapon was seized from this accused. Manohar Singh Verma (PW 6) was the D.S.P. He has deposed that accused Kishore and Guddu were caught by the officials of his party. Kishore had a 'Katta' and Guddu 'had a 'Gupti'. These were seized. The officials who actually nabbed these accused persons have not been named Dr examined.

       8. As stated earlier the two panch witnesses have not supported the evidence of the police officers. The testimony of the police officers is not fully reliable.

       9. The conviction cannot be upheld. It is not unlikely that the accused persons were called from different places and then they were arrested. Their assembly in the Subzi – mandi and the preparation for dacoity are both doubtful.

       10. The appeals are allowed, the conviction and sentence are set aside and the appellants are acquitted of the charges for which they were held guilty by the trial Court.