VASUDEV versus STATE OF M.P. on 1 February 2022

514

[2022] 1 S.C.R. 514

SUPREME COURT REPORTS

[2022] 1 S.C.R.

A

VASUDEV

v.

STATE of M.P.

(Criminal Appeal No. 388 of 2021)

B

FEBRUARY 1, 2022

[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]

Penal Code, 1860 – ss.307/34 – Arms Act – s. 3/25(1B)(a)and s. 27/34 – The case of prosecution that Sub-Inspector (PW-6)Calong with SDOP (PW-10) reached a village on having informationthat an absconding accused ‘R’ was hiding with his associatemembers – The accused persons were hiding in a house – PW-10challenged the accused to surrender – However, the accused personsopened fire on the police from inside the house – After retaliationDfrom the police parties, the accused ‘R’ expressed his wish tosurrender – Accordingly, the accused ‘R’ along with accused/appellant surrendered before the police – After surrendering, one315 bore rifle along with 19 live cartridges and 5 empty cartridgeswere recovered from ‘R’ and one 12 bore double barrel gun alongwith 20 live cartridges and 7 empty cartridges were recovered fromEaccused/appellant – The Trial Court convicted the accused personsu/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 HighCourt – During the pendency of appeal, accused ‘R’ died and hisappeal was dismissed as abated – The High Court confirmed theFjudgment of the Trial Court and the remaining appeal of theappellant/accused was dismissed – On appeal, held; As per thetestimonies of the prosecution witnesses PW-4, PW-5, PW -10, PW-14 and PW-16, it is apparent that an information of hiding by thedeceased accused with his associate in a house was received,however, in their statements it is not said that appellant was withGhim – Further, PW-5 in cross-examination said that the firing wastowards the hill area and not towards the police party – None of thewitnesses saw appellant firing on police – So as per the saidtestimony, it is apparent that the intention and knowledge to commitan act by them towards the policy party was not proved beyondreasonable doubt – The arrest, seizure were prepared at the policeH

station and not on spot – Three independent witnesses, PW-7, PW-8and PW-13 did not supported the case of prosecution – Further, asper FSL report, the right barrel of 12 bore gun, fire could not bedone and the empty catridges, which were received were not firedfrom the left barrel – Therefore, use of 12 bore gun is not proved –Considring all these aspects, the ingredients of s.307/34 IPC ands.27 of the Arms Act were not proved by the prosecution beyond thereasonable doubt, proving the guilt of the appellant – The TrialCourt and the High Court committed error in convicting the appellantu/s. 307/34 IPC r/w s.27 Arms Act – Therefore, the conviction andsentence 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

Conclusion

Partly allowing the appeal, the Court

HELD: First of all, it is required to be seen what are theingredients to prove an offence under Section 307 of IPC. Onperusal of the provisions, it is apparent that whoever does anyact, with intention or knowledge, which may cause death and infurtherance to the said intention and knowledge, he was doing anact towards it. However, it is required to be seen by the evidencebrought on record by the prosecution whether the ingredients toprove, the case of prosecution beyond reasonable doubt, thecharge under Section 307/34 IPC have been established. In thisregard, 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 informationof hiding by the deceased accused ‘R’ with his associates in ahouse of village Mahoi Kala was received. In their statements, itis not said that appellant was with him. The police personnel ofnearby police stations were called at Village Mahoi Kala.Thereafter, under the command of S.D.O.P. (PW10), police partieswere prepared to apprehend the accused. The police parties weredeputed in different directions and warning to surrender was givento ‘R’. On such warning, as stated by them, firing was made frominside the house. H.C.(PW5) in cross examination clearly saidthat the said firing was towards the hill area and not towards thepolice party. None of the said prosecution witnesses have seenthe appellant firing on police party, with intention or knowledge ABC

D

E

F

G

H

Ato commit an offence, proving his guilt. Subsequently, as alleged,‘R’ and appellant had surrendered along with guns before thepolice party. As per the said testimony, it is apparent that theintention and knowledge to commit an act by them towards thepolice party has not been proved beyond reasonable doubt.Simultaneously, as per the statement of prosecution witnesses,Bit has come on record that all the proceedings including the arrest,seizure have been prepared at the police station and not on thespot. However, defence as taken by the appellant appears to beplausible, and creates reasonable doubt in proving the guilt byprosecution. It is not out of place to mention that threeCindependent witnesses PW7, PW8 and PW13, in whose houseincident had taken place, had not supported the case ofprosecution. As per the cross -examination of prosecutionwitnesses, 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,Dthe seizure and the arrest were not made by police, is not explainedand highly doubtful. There is no independent witness in any ofthe proceedings though may be available. The High Court, whileconvicting the appellant by the impugned judgment, merelyobserved that because accused were prized goons and wereEabsconding and as per the deposition, it could not be said thatthe appellant No. 2 was not involved because he was arrested onspot and taken to police station. In this regard, it is required toobserve that the prosecution is required to prove its case beyondreasonable doubt and the conviction cannot be based merely onthe basis of presumption to rule out the presence of accused. ItFis to further observe that as per FSL Report Exb. P-17A, it isclear that from the right barrel of 12 bore gun, Exb. A -2, firecould not be done and the empty cartridges, which were received,have not been fired from the left barrel. Therefore, the use of 12bore gun which was seized from the appellant is not proved alongGwith live and empty cartridges. As the use of the gun itself is notestablished by the FSL report, therefore, the conviction underSection 27 Arms Act also is not justified. Considering all theseaspects, in opinion of this Court, the ingredients of Section 307/

H

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

Parsuram Pandey 6 and others v. State of Bihar, AIR2004 SC 5068 : [2004] 5 Suppl. SCR 475 – referredto.

Case Law Reference

[2004] 5 Suppl. SCR 475referred to

Para 5

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.388 of 2021.

From the Judgment and Order dated 14.02.2020 of the High Courtof Madhya Pradesh at Jabalpur in Cr. A. No.622 of 2009.

H. K. Chaturvedi, Ms. Anjali Chaturvedi, Sagan Chaturvedi, Ms.Megha Chaturvedi, Advs. for the Appellant.

Mukul Singh, Ankit Mishra, Gopal Jha, Advs. for the Respondent.

The Judgment of the Court was delivered by

J. K. MAHESHWARI, J.

1. Arising out of the judgment dated 14.02.2020 passed in CriminalAppeal No. 622 of 2009 by the High Court of Madhya Pradesh, judicatureat Jabalpur, confirming the judgment dated 7.3.2009 in S.T. No. 185 of2006 passed by the 6[th] Additional Sessions Judge (Fast Track Court),Chhatarpur, the present Special Leave Petition has been filed, in whichleave was granted directing to call for the record. However, this appealhas been registered and heard on priority basis as the appellant being thesenior citizen.

2. The case of the prosecution in brief is that on 15.6.2006, SubInspector R.S. Bagri (PW6) along with Sub-Divisional Officer Dr. SanjayAgrawal (PW10) reached village Mahoi Kala on having information atPolice Station Sarwai that absconding accused Rajesh Shukla was hidingwith his associate members in the said village. It was also informed thataccused Rajesh Shukla was beside the house of Jhallu Kachhi of thesaid village. The police personnel of nearby police stations were calledat Village Mahoi Kala. Thereafter, under the command of S.D.O.P. Dr.

A

B

C

D

E

F

G

H

ASanjay Agrawal (PW10), police parties were prepared to apprehend theaccused. The police parties surrounded the house of Jhallu Kachhi. Dr.Sanjay Agrawal (PW10) challenged the accused persons to surrenderand come out of the house of Jhallu Kachhi. The accused Rajesh Shukladid not surrender and open the fire on the police personnel from insidethe house. The police parties retaliated the firing. After sometime, theBaccused Rajesh Shukla expressed his wish to surrender. Accordingly,the accused Rajesh Shukla along with accused/appellant Vasudev Shuklasurrendered before the police and they were taken into custody. Aftersurrendering, one 315 bore rifle along with 19 live cartridges and 5 emptycartridges were recovered from accused Rajesh Shuka, whereas oneC12 bore double barrel gun along with 20 live cartridges and 7 emptycartridges were recovered from accused Vasudev Shukla. The firstinformation was registered as Exb. P-18. The weapons, so surrendered,had been seized at the police station along with live cartridges Exb. P-4to P-6. The accused persons were arrested vide arrest panchnama Exb.P9 and P10. After completion of the investigation, challan was filed. AsDthe case was triable by the Court of Sessions, therefore, it was committedto the competent court, where the charges under Sections 307/34 readwith Section 3/25(1B)(a) and Section 27/34 of the Arms Act were framedagainst both the accused. The accused abjured their guilt and demandedtrial by taking a defence of false implication. Appellant-VasudevEspecifically taken defence that after coming back from the jail, he hadsurrendered his son Rajesh in P.S. Sarwai. The police personnel haveprepared a false case sitting in the police station, implicating the appellantand c-accused Rajesh Shukla in this case.

3. Prosecution has examined as many as 16 witnesses, while theFaccused has not examined any witness in defence. Trial Court, afterreferring the statement of the witnesses, convicted the accused personson taking pretext that they were aware regarding the challenge of thepolice party for surrender. Instead of surrendering, the accused personsfired gun shots, which were retaliated by the police party. After sometime,both the accused had surrendered throwing their guns. The Trial Court,Gfurther observed that guns so seized, may fire and the used and un-usedcartridges of 315 bore as well as a 12 bore double barrel gun wereseized, which finds support from the FSL Report Exb. P-17A regardinguse of the said guns. As the accused persons were holding the guns,without any license, therefore, they have been convicted for the chargesHunder 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 threeyears with fine of Rs. 1000 respectively with default sentences. It wasdirected by the Court that the aforesaid sentences shall run concurrently.

4. The judgment passed by the Trial Court was challenged beforethe High Court by filing Criminal Appeal No. 622 of 2009. As the appellantRajesh Shukla died on 19.2.2016, therefore, his appeal was dismissed asabated, while the appeal of the appellant Vasudev Shukla has beendismissed confirming the judgment of Trial Court in toto.

5. Shri H.K. Chaturvedi, learned counsel appearing for theappellant has argued with vehemence that as per the case of prosecutionitself, there was no apprehension of abscondment of appellant. From thestatement of prosecution witnesses, it is clear that deceased co-accusedRajesh Shukla was allegedly said to be hiding himself in the house ofJhallu Kachhi and not the appellant. The prosecution witnesses have notnamed and seen the appellant firing on them, having intention andknowledge to commit the murder. As per the seizure Exb. P-5, 12 boredouble barrel gun, 20 live cartridges and 7 empty cartridges were seizedfrom him. FSL report Exb. P-17A clearly indicates that there was disparityto match TC (A2 L.B.) for the firing pin impression to Exb. EC 6,7,8,9,12.Therefore, those five cartridges were not fired through the left barrel of12 bore gun Exb. A-2. Similarly, the right barrel of 12 bore gun Exb. A-2, had not been used in firing because it was cut and short by whichweapon could not be matched with the cartridges. It is further urgedthat as per the testimony of the witnesses, it is clear that they had notseen firing any of the accused on police party. It is said the object of thefire was towards hill and not towards the accused persons as is apparentfrom the statement of H.C. Akbar Singh Gaur (PW5). In suchcircumstances, the prosecution has failed to prove the intention andknowledge to commit an act which may amounting to commission of anoffence attempt to murder. In absence thereto, the conviction of theappellant for an offence under Section 307/34 of IPC is contrary to thesettled proposition of law. In support of his contention, reliance has beenplaced on the judgment of this Court in the case of Parsuram Pandeyand others vs. State of Bihar, AIR 2004 SC 5068. It is further urgedthat the right barrel of 12 bore gun seized from appellant was cut andshort, making it impossible to fire from this weapon and the emptycartridges have not been fired from left barrel as apparent from FSL

A

B

C

D

E

F

G

H

Areport Exb. P-17A. Therefore, the offence under Section 27 of the ArmsAct has not been made out. Even assuming that the offence under Section25(1- B)(a) is made out, sentence as awarded by the Trial Court is twoyears, which the appellant has already served as per the report availableon record. Therefore, while setting aside the conviction and the sentencefor an offence under Sections 307/34 and 27 Arms Act, appellant mayBbe directed to be released

6. Per contra, Shri Mukul Singh, learned counsel representing theState submits that the Trial Court and the High Court have rightly convictedand sentenced the appellant by the impugned judgment, howeverinterference in this appeal is not warranted in exercise of power underCArticle 136 of the Constitution of India.

7. After hearing learned counsel for the parties, first of all, it isrequired to be seen what are the ingredients to prove an offence underSection 307 of IPC. On perusal of the provisions, it is apparent thatwhoever does any act, with intention or knowledge, which may causeDdeath and in furtherance to the said intention and knowledge, he wasdoing an act towards it. However, it is required to be seen by the evidencebrought on record by the prosecution whether the ingredients to prove,the case of prosecution beyond reasonable doubt, the charge under Section307/34 IPC have been established. In this regard, the star witnesses ofEthe prosecution are ASI J.P. Verma (PW 4), H.C. Akbar Singh Gaur(PW5), SDOP Dr. Sanjay Agrawal (PW 10), H.C. Uday Raj Singh(PW14), S.I. Arvind Singh Dangi (PW15) and S.I. R.S. Bagri (PW16).As per their testimonies, it is apparent that an information of hiding bythe deceased accused Rajesh Shukla with his associates in the house ofJhallu Kachhi of village Mahoi Kala was received. In their statements, itFis not said that appellant was with him. The police personnel of nearbypolice stations were called at Village Mahoi Kala. Thereafter, under thecommand of S.D.O.P. Dr. Sanjay Agrawal (PW10), police parties wereprepared to apprehend the accused. The police parties were deputed indifferent directions and warning to surrender was given to Rajesh Shukla.GOn such warning, as stated by them, firing was made from inside thehouse of Jhallu Kachhi. H.C. Akbar Singh Gaur (PW5) in cross-examination clearly said that the said firing was towards the hill areaand not towards the police party. None of the said prosecution witnesseshave seen the appellant firing on police party, with intention or knowledgeto commit an offence, proving his guilt. Subsequently, as alleged, RajeshH

Shukla and appellant had surrendered along with guns before the policeparty. As per the said testimony, it is apparent that the intention andknowledge to commit an act by them towards the police party has notbeen proved beyond reasonable doubt. Simultaneously, as per thestatement of prosecution witnesses, it has come on record that all theproceedings including the arrest, seizure have been prepared at the policestation and not on the spot. However, defence as taken by the appellantappears to be plausible, and creates reasonable doubt in proving the guiltby prosecution. It is not out of place to mention that three independentwitnesses Shivnath Anuragi (PW7), Barra (PW8) and Jhallu Kachhi(PW13), in whose house incident had taken place, had not supported thecase of prosecution. As per the cross-examination of prosecutionwitnesses, it is apparent that Santosh Shukla was present on the spot.He was having good relations with the SHO and inimical with the accusedRajesh Shukla. However, being independent person, why in his presence,the seizure and the arrest were not made by police, is not explained andhighly doubtful. There is no independent witness in any of the proceedingsthough may be available. The High Court, while convicting the appellantby the impugned judgment, merely observed that because accused wereprized goons and were absconding and as per the deposition, it could notbe said that the appellant No. 2 was not involved because he was arrestedon spot and taken to police station. In this regard, it is required to observethat the prosecution is required to prove its case beyond reasonabledoubt and the conviction cannot be based merely on the basis ofpresumption to rule out the presence of accused. It is to further observethat as per FSL Report Exb. P-17A, it is clear that from the right barrelof 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 provedalong with live and empty cartridges. As the use of the gun itself is notestablished by the FSL report, therefore, the conviction under Section 27Arms Act also is not justified. Considering all these aspects, in ourconsidered opinion, the ingredients of Section 307/34 IPC and Section27 of the Arms Act have not been proved by the prosecution beyondreasonable doubt, proving the guilt of the accused/appellant.

8. In view of the foregoing, the Trial Court and High Courtcommitted error in convicting the appellant for the charge under Section307/34 IPC read with Section 27 Arms Act. Therefore, we allow thisappeal in part and set-aside the conviction and sentence for the said A

B

C

D

EF

G

H

Acharges, and acquit the appellant for the same, except of the chargeunder Section 25(1B)(a) of the Arms Act. The appellant has alreadyserved the sentence for the charge under Section 25(1B)(a) of the ArmsAct, therefore, if he is not required in any other case, be released forthwithfrom jail.

B9. Accordingly, this appeal is allowed in part and disposed of.

Ankit Gyan

Appeal partly allowed.

C

D

E

F

G

H