Vasudev vs State of M.P.

315 bore rifle along with 19 live cartridges and 5 empty cartridges were recovered from ‘R’ and one 12 bore double barrel gun along with 20 live cartridges and 7 empty cartridges were recovered from accused/appellant – The Trial Court convicted the accused persons u/s. 307/34 IPC r/w. s.3/25(1B)(a) and s.27 of the Arms Act – Aggrieved, both the accused persons filed appeal before the High Court – During the pendency of appeal, accused ‘R’ died and his appeal was dismissed as abated – The High Court confirmed the judgment of the Trial Court and the remaining appeal of the appellant/accused was dismissed – On appeal, held; As per the testimonies of the prosecution witnesses PW-4, PW-5, PW -10, PW14 and PW-16, it is apparent that an information of hiding by the deceased accused with his associate in a house was received, however, in their statements it is not said that appellant was with him – Further, PW-5 in cross-examination said that the firing was towards the hill area and not towards the police party – None of the witnesses saw appellant firing on police – So as per the said testimony, it is apparent that the intention and knowledge to commit an act by them towards the policy party was not proved beyond reasonable doubt – The arrest, seizure were prepared at the police station and not on spot – Three independent witnesses, PW-7, PW-8 and PW-13 did not supported the case of prosecution – Further, as per FSL report, the right barrel of 12 bore gun, fire could not be done and the empty catridges, which were received were not fired from the left barrel – Therefore, use of 12 bore gun is not proved – Considring all these aspects, the ingredients of s.307/34 IPC and s.27 of the Arms Act were not proved by the prosecution beyond the reasonable doubt, proving the guilt of the appellant – The Trial Court and the High Court committed error in convicting the appellant u/s. 307/34 IPC r/w s.27 Arms Act – Therefore, the conviction and sentence for the said charges are set aside, except of the charge u/s. 25(1B)(a) of the Arms Act.

Partly allowing the appeal, the Court

HELD: First of all, it is required to be seen what are the ingredients to prove an offence under Section 307 of IPC. On perusal of the provisions, it is apparent that whoever does any act, with intention or knowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing an act towards it. However, it is required to be seen by the evidence brought on record by the prosecution whether the ingredients to prove, the case of prosecution beyond reasonable doubt, the charge under Section 307/34 IPC have been established. In this regard, the star witnesses of the prosecution are ASI (PW 4), H.C. (PW5), SDOP (PW10), H.C. (PW14), S.I. (PW15) and S.I. (PW16). As per their testimonies, it is apparent that an information of hiding by the deceased accused ‘R’ with his associates in a house of village Mahoi Kala was received. In their statements, it is not said that appellant was with him. The police personnel of nearby police stations were called at Village Mahoi Kala. Thereafter, under the command of S.D.O.P. (PW10), police parties were prepared to apprehend the accused. The police parties were deputed in different directions and warning to surrender was given to ‘R’. On such warning, as stated by them, firing was made from inside the house. H.C.(PW5) in cross examination clearly said that the said firing was towards the hill area and not towards the police party. None of the said prosecution witnesses have seen the appellant firing on police party, with intention or knowledge to commit an offence, proving his guilt. Subsequently, as alleged, ‘R’ and appellant had surrendered along with guns before the police party. As per the said testimony, it is apparent that the intention and knowledge to commit an act by them towards the police party has not been proved beyond reasonable doubt. Simultaneously, as per the statement of prosecution witnesses, it has come on record that all the proceedings including the arrest, seizure have been prepared at the police station and not on the spot. However, defence as taken by the appellant appears to be plausible, and creates reasonable doubt in proving the guilt by prosecution. It is not out of place to mention that three independent witnesses PW7, PW8 and PW13, in whose house incident had taken place, had not supported the case of prosecution. As per the cross -examination of prosecution witnesses, it is apparent that one ‘SS’ was present on the spot. He was having good relations with the SHO and inimical with the ‘R’. However, being independent person, why in his presence, the seizure and the arrest were not made by police, is not explained and highly doubtful. There is no independent witness in any of the proceedings though may be available. The High Court, while convicting the appellant by the impugned judgment, merely observed that because accused were prized goons and were absconding and as per the deposition, it could not be said that the appellant No. 2 was not involved because he was arrested on spot and taken to police station. In this regard, it is required to observe that the prosecution is required to prove its case beyond reasonable doubt and the conviction cannot be based merely on the basis of presumption to rule out the presence of accused. It is to further observe that as per FSL Report Exb. P-17A, it is clear that from the right barrel of 12 bore gun, Exb. A -2, fire could not be done and the empty cartridges, which were received, have not been fired from the left barrel. Therefore, the use of 12 bore gun which was seized from the appellant is not proved along with live and empty cartridges. As the use of the gun itself is not established by the FSL report, therefore, the conviction under Section 27 Arms Act also is not justified. Considering all these aspects, in opinion of this Court, the ingredients of Section 307/

34 IPC and Section 27 of the Arms Act have not been proved by the prosecution beyond reasonable doubt, proving the guilt of the accused/appellant. [Para 7][520-C-H; 521-A-G]

Parsuram Pandey 6 and others v. State of Bihar, AIR 2004 SC 5068 : [2004] 5 Suppl. SCR 475 – referred to.