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Conviction cannot be based merely on basis of Presumption to rule out the presence of Accused: SC

THE CONVICTION CANNOT BE BASED MERELY ON THE BASIS OF PRESUMPTION TO RULE OUT THE PRESENCE OF ACCUSED: SC

Cause Title: Vasudev v. State of M.P.

Case Number: Criminal Appeal No. 388/2021

Quorum: Justice Indira Banerjee and Justice J.K. Maheshwari

Judgment Date: 01/02/2022

Counsel for Appellant: Shri. H.K. Chaturvedi

Counsel for Respondent/ State: Shri. Mukul Singh

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

To View/Download Judgment: Vasudev v. State of M.P.



Background of the Case

Sub-Inspector R.S. Bagri (PW6) along with Sub-Divisional Officer Dr. Sanjay Agrawal (PW10) reached village Mahoi Kala on having information at Police Station Sarwai that the absconding accused Rajesh Shukla was hiding with his associate members in the said village. It was also informed that the accused was beside the house of Jhallu Kachhi and the police personnel of nearby stations were called to the village. Under the command of Dr. Sanjay Agrawal, the police parties were prepared to apprehend the accused.

Dr. Sanjay challenged the accused persons to surrender but the accused Rajesh Shukla refused and opened fire at police personnel to which the police parties retaliated. After sometime, the accused wished to surrender. The accused Rajesh Shukla along with accused/appellant Vasudev Shukla surrendered before the Police and they were taken into custody. After the surrender, one 315 bore rifle, 19 live cartridges and 5 empty cartridgeswere recovered from Rajesh Shukla and one 12 bore double barrel gun with 20 live cartridges and 7 empty cartridges were recovered from Vasudev Shukla. The FIR was registered as Exhibit P-18 and the seized weapons as Exhibits P-4 to P-6. The accused persons were arrested vide arrest panchnama Exhibits P9 and P10 and after completion of the investigation, challan was filed.

The charges under Sections 307/34 read with Section 3/25(1B)(a) and Section 27/34 of the Arms Act were framed against both the accused. The accused abjured their guilt and demanded trial by taking a defence of false implication. Appellant-Vasudev specifically taken defence that after coming back from the jail, he had surrendered his son Rajesh in P.S. Sarwai. The police personnel have prepared a false case sitting in the police station, implicating the appellant and co-accused Rajesh Shukla in this case.

The Trial Court has convicted the accused persons for the charges under Section 307/34 of IPC read with Sections 3/25(1B)(a) and 27 of the Arms Act and directed to undergo Rigorous Imprisonment for four years with fine of Rs. 2,000/- and Rigorous Imprisonment for two years with fine of Rs. 1000 and Rigorous Imprisonment for three years with fine of Rs. 1000 respectively with default sentences. It was directed by the Court that the aforesaid sentences shall run concurrently. The Trial Court reasoned the charges based on:

a) Taking pretext that they were aware regarding the challenge of the police party for surrender. Instead of surrendering, the accused persons fired gun shots, which were retaliated by the police party.

b) The seized guns showed the use of the guns. The accused were holding the guns without any license

The judgment passed by the Trial Court was challenged before the High Court by filing Criminal Appeal No. 622/2009. As the appellant Rajesh Shukla died on 19.02.2016, therefore, his appeal was dismissed as abated, while the appeal of the appellant Vasudev Shukla has been dismissed confirming the judgment of Trial Court in toto.

Findings of the Court

The Honourable Supreme Court of India observed that 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. The star witnesses of the 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 (PW 14), S.I. Arvind Singh Dangi (PW15) and S.I. R.S. Bagri (PW16). In their statements, it is not said that the appellant was with accused Rajesh Shukla. 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, Rajesh Shukla 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. (Para 7)

Simultaneously, as per the statement of the 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. The three independent witnesses Shivnath Anuragi (PW7), Barra (PW8) and Jhallu Kachhi (PW 13) in whose house incident had taken place, had not supported the case of prosecution and as per the cross examination of the prosecution witnesses, it is apparent that Santosh Shukla was present on the spot. He was having good relations with the SHO and inimical with the accused Rajesh Shukla. However, being independent person, why in his presence, the seizure and the arrest were not made by the police, is not explained and highly doubtful. There is no independent witness in any of the proceedings though may be available. (Para 7)

The High Court while convicting the appellant merely observed that because the 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. The Honourable Apex Court held that 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 also observed that as per the FSL Report, the right barrel of 12 bore gun, fire could not be done and the empty cartridges have not been fired from the left barrel. Therefore, the use of 12 bore fun which was seized from appellant is not proved along with live and empty cartridges. (Para 7)

The Honourable Supreme Court of India held that

….As the use of the gun itself is not established by the FSL report, therefore, the conviction under Section 27 Arms Act is also not justified. Considering all these aspects, in our considered opinion, 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.

In view of the foregoing, the Trial Court and High Court committed error in convicting the appellant for the charge under Section 307/34 IPC read with Section 27 Arms Act. Therefore, we allow this appeal in part and set-aside the conviction and sentence for the said charges, and acquit the appellant for the same, except of the charge under Section 25(1B)(a) of the Arms Act. The appellant has already served the sentence for the charge under Section 25(1B)(a) of the Arms Act, therefore if he is not required in any other case, be released forthwith from jail. (Para 8)

Accordingly, this appeal is allowed in part and disposed of. (Para 9)


Cases Referred

1. Parsuram Pandey and Others v. State of Bihar, AIR 2004 SC 5068

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