C A V Judgment

This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘CrPC’) has been filed by the appellants aggrieved by impugned judgment of conviction and order of sentence dated 24/04/2009 passed by the Second Additional Sessions Judge (FTC), Korba (CG) in Sessions Case No.64/2008 by which, learned trial Court held the appellants guilty of commission of offence and sentenced as described below -

2. Prosecution story in brief is that on 05/06/2008, at about 7 O’clock in the morning, a secret information was received by Shri V.P.Shukla, In-charge of Police Station – Kartala that some people have gathered in a jungle behind Sahu Dhaba prepared for committing dacoity and were also armed and also had 3 motor cycle. After receipt of said information, Shri V.P.Shukla (PW10) to verify about the said information, went to the spot along with his staff ASI – Dwarika Singh (PW5), Head Constable No.374, 236 and driver – Domar Sahu and witnesses – Manoj Kumar Dubey (PW1) and Surendra Dubey (PW2) by Govt. Jeep CG-03/1626. They intercepted the suspected persons from the spot and interrogated them. They were also interrogated with regard to the possession of the arms but no satisfactory answer was given. Then, from appellant – Arun Kumar, one country made pistol and one Hero Honda motor cycle bearing no.CG 13 F-1815, from accused Purushottam, one Air Pistol and one TVS motor cycle, from accused Ramprasad, one iron pistol, from accused – Geresia, one Air Pistol, from accused Onkar, one iron knife and one motor cycle LML Freedom registration No.CG 14/4765, from accused Bahadur, one iron wrench were seized. On being found that they had gathered together to plan for committing dacoity with the arms, FIR was lodged and investigation was set on motion.

3. During the course of investigation, seized Air pistol and country made Revolver were sent for examination to the arms expert. In the report, it was found that the country made Revolver seized from accused Arun and Air pistol seized from accused–Purushottam are fire-able and air pistol seized from accused Geresia is not fire-able. Spot map was prepared by Patwari of the concerned area. Statement of the witnesses were recorded and permission to file charge sheet was obtained through Superintendent of Police from District Magistrate, Korba and after permission, charge sheet under Section 399, 402 and Section 25, 27 of Arms Act, 1959 was filed before the competent Court. Thereafter, the case was committed to the Sessions Court, Korba and was made over to the trial Court for trial. The appellants were charged for offence under Section 399 and 402 of IPC and Section 25 (1-[k ) (d) of the Arms Act, 1959. The appellants denied the charges and claimed to be tried. The prosecution, in order to bring home the guilt of the appellants, examined as many as 12 witnesses and exhibited 21 documents. Their statement under Section 313 of CrPC was recorded in which, they claimed their innocence. No defence witness was examined on behalf of the appellants.

4. Learned Trial Court, after appreciation of evidence available on record convicted the appellants as stated above, however, acquitted them for offence [k d punishable under Section 25 (1- ) ( ) of the Arms Act, 1959.

5. Learned counsel for the appellants argues that the conviction of the appellants is bad in law, contrary to the evidence on record and is erroneous. Learned trial Court has not appreciated the evidence to its proper perspective and wrongly convicted the appellants. He further submits that independent witness Manoj Kumar Dubey (PW1) and 6Surendra Dubey (PW2) have been declared hostile and they have not supported the case of the prose