IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL th ON THE 19 OF JULY, 2023 CRIMINAL APPEAL No. 729 of 2016 BETWEEN:-

1. SULLI @ SUNIL CHAURASIYA S/O SHRI HARCHARAN CHAURASIYA, AGED ABOUT 27 YEARS, BILLOWA AT PRESENT NADARIYA KI MATA FAUJI COLONY GUDA GWALIOR (MADHYA PRADESH)

2. KAILASHI @ KAILASH YADAV S/O ASHOK YADAV, AGED ABOUT 22 YEARS, R/O SANDALPUR P.S ANTRI AT PRESENT HOUSE OF PRAKASH KUSHWAH, CHAURASIYA COLONY GUDA GWALIOR (MADHYA PRADESH)

.....APPELLANTS (BY SHRI RAJMANI BANSAL- ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION BILLOWA DISTT. GWALIOR (MADHYA PRADESH)

.....RESPONDENT (BY SHRI RAJENDRA SINGH YADAV- PUBLIC PROSECUTOR FOR THE STATE)

This appeal coming on for hearing this day, the court passed the following:

ORDER

Appellants have filed this appeal under Section 374 of Cr.P.C. being aggrieved by the judgment dated 16.8.2016 passed by the 1st Additional Signature NoSt Veesrsifiieodns Judge, Dabra, Distt. Gwalior, in S.T.No.465/2011 whereby appellants Signed by: MADHU Signing time: 19h-0a7-v20e2 3been convicted under Section 25(1-B) of the Arms Act and sentenced to undergo 1 year RI with fine of Rs.1,000/- while acquitting them from the charge under Section 307 or 307/34 of IPC along with co-accused Narayandas.

In brief prosecution case necessary for disposal of this appeal is that on

19.7.2011 at 12.30 pm complainant Arvind Sharma lodged an FIR at police Station Bilaua against the appellants and co-accused Narayandas and Mukesh Kushwah alleging that on the preceding night at 9.30 pm he was going to Bilaua along with his friend Dharmendra Tiwari on two motorcycles. In front of ITM college accused persons were standing along with two motorcycles. Appellant Sulli gave him signal to stop, but he did not stop, then accused persons chased him. When complainant turned toward Turari road, accused persons also turned towards that road. Before reaching village Turari accused Sunil with intention to kill fired with 12 bore Katta, two pellets hit on his helmet, due to which he cried and thereafter reached village Turari and on hearing his cries, Jandel Singh, Amarsingh and other villagers came out from their houses and in front of them, Narayan Das with 315 bore Katta fired on him, but as he bow down it did not hit him. When the villagers chased accused persons, their motorcycles stuck in the mud, and therefore, leaving their motorcycles, they fled away. On his complaint, offence under Sections 307/34 of IPC and Sections 27 and 25(1-B) of the Arms Act was registered. During investigation, appellants were apprehended. On 19.7.2011 on the behest of appellants in front of witnesses Dharmendra Tiwari and Manoj Parihar one 12 bore Katta and one 315 bore Katta have been seized from the appellants. After taking sanction from the District Magistrate and completing investigation, charge-sheet has been filed before the competent Court. After trial, appellants have been acquitted from the Signature Not Verified charge under Section 307 or 307/34 of IPC, but convicted under Section 25(1-

Signed by: MADHU

05:43:28 PM B) of the Arms Act.

Learned counsel for the appellants drew attention of this Court to the cross-examination para 30 of investigating officer Shri Alok Shrivastava (PW- 10) in which he has admitted that all the proceedings of seizure, arrest and memorandum were done before witnesses Dharmendra Tiwari and Manoj Parihar who were brought by the complainant. No independent witness has been called. There is no mention of sealing the seized weapon in seizure memo despite there is a column for it. Aforesaid seizure was made from open place. Learned counsel for the appellants submits that in view of the aforesaid admission of the Investigating Officer that seized weapon was not sealed at the spot, presumption should have been drawn in favour of the appellants that no weapon has been seized from the spot and they have been falsely implicated. Learned counsel for the appellants mad