caselaws.org

Supreme Court of India
Vasudev vs State Of M.P. on 1 February, 2022Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 388 OF 2021

VASUDEV …APPELLANT
Versus
STATE of M.P. …RESPONDENT

JUDGMENT

J.K. Maheshwari, J.

Arising out of the judgment dated 14.02.2020 passed in

Criminal Appeal No. 622 of 2009 by the High Court of Madhya

Pradesh, judicature at Jabalpur, confirming the judgment dated

7.3.2009 in S.T. No. 185 of 2006 passed by the 6 th Additional

Sessions Judge (Fast Track Court), Chhatarpur, the present

Special Leave Petition has been filed, in which leave was

granted directing to call for the record. However, this appeal has

Signature Not Verified
been registered and heard on priority basis as the appellant
Digitally signed by
Rachna
Date: 2022.02.01
16:32:51 IST
Reason:
being the senior citizen.

1
2. The case of the prosecution in brief is that on 15.6.2006,

Sub Inspector R.S. Bagri (PW6) along with Sub­Divisional

Officer Dr. Sanjay Agrawal (PW10) reached village Mahoi Kala

on having information at Police Station Sarwai that

absconding accused Rajesh Shukla was hiding with his

associate members in the said village. It was also informed

that accused Rajesh Shukla was beside the house of Jhallu

Kachhi of the said village. The police personnel of nearby police

stations were called at Village Mahoi Kala. Thereafter, under

the command of S.D.O.P. Dr. Sanjay Agrawal (PW10), police

parties were prepared to apprehend the accused. The police

parties surrounded the house of Jhallu Kachhi. Dr. Sanjay

Agrawal (PW10) challenged the accused persons to surrender

and come out of the house of Jhallu Kachhi. The accused

Rajesh Shukla did not surrender and open the fire on the police

personnel from inside the house. The police parties retaliated

the firing. After sometime, the accused Rajesh Shukla

expressed his wish to surrender. Accordingly, the accused

Rajesh Shukla along with accused/appellant Vasudev Shukla

2
surrendered before the police and they were taken into custody.

After surrendering, one 315 bore rifle along with 19 live

cartridges and 5 empty cartridges were recovered from accused

Rajesh Shuka, whereas one 12 bore double barrel gun along

with 20 live cartridges and 7 empty cartridges were recovered

from accused Vasudev Shukla. The first information was

registered as Exb. P­18. The weapons, so surrendered, had

been seized at the police station along with live cartridges Exb.

P­4 to P­6. The accused persons were arrested vide arrest

panchnama Exb. P9 and P10. After completion of the

investigation, challan was filed. As the case was triable by the

Court of Sessions, therefore, it was committed to the competent

court, where 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. Appellant­Vasudev 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

3
a false case sitting in the police station, implicating the

appellant and c­accused Rajesh Shukla in this case.

3. Prosecution has examined as many as 16 witnesses,

while the accused has not examined any witness in defence.

Trial Court, after referring the statement of the witnesses,

convicted the accused persons on 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. After sometime, both

the accused had surrendered throwing their guns. The Trial

Court, further observed that guns so seized, may fire and the

used and un­used cartridges of 315 bore as well as a 12 bore

double barrel gun were seized, which finds support from the

FSL Report Exb. P­17A regarding use of the said guns. As the

accused persons were holding the guns, without any license,

therefore, they have been convicted for the charges under

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

4
and R.I. 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.

4. The judgment passed by the Trial Court was challenged

before the High Court by filing Criminal Appeal No. 622 of

2009. As the appellant Rajesh Shukla died on 19.2.2016,

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.

5. Shri H.K. Chaturvedi, learned counsel appearing for the

appellant has argued with vehemence that as per the case of

prosecution itself, there was no apprehension of abscondment

of appellant. From the statement of prosecution witnesses, it is

clear that deceased co­accused Rajesh Shukla was allegedly

said to be hiding himself in the house of Jhallu Kachhi and not

the appellant. The prosecution witnesses have not named and

seen the appellant firing on them, having intention and

knowledge to commit the murder. As per the seizure Exb. P­5,

12 bore double barrel gun, 20 live cartridges and 7 empty

5
cartridges were seized from him. FSL report Exb. P­17A clearly

indicates that there was disparity to 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 of 12 bore

gun Exb. A­2. Similarly, the right barrel of 12 bore gun Exb.

A­2 , had not been used in firing because it was cut and short

by which weapon could not be matched with the cartridges. It

is further urged that as per the testimony of the witnesses, it is

clear that they had not seen firing any of the accused on police

party. It is said the object of the fire was towards hill and not

towards the accused persons as is apparent from the

statement of H.C. Akbar Singh Gaur (PW5). In such

circumstances, the prosecution has failed to prove the intention

and knowledge to commit an act which may amounting to

commission of an offence attempt to murder. In absence

thereto, the conviction of the appellant for an offence under

Section 307/34 of IPC is contrary to the settled proposition of

law. In support of his contention, reliance has been placed on

the judgment of this Court in the case of Parsuram Pandey

6
and others vs. State of Bihar, AIR 2004 SC 5068. It is

further urged that the right barrel of 12 bore gun seized from

appellant was cut and short, making it impossible to fire from

this weapon and the empty cartridges have not been fired from

left barrel as apparent from FSL report Exb. P­17A. Therefore,

the offence under Section 27 of the Arms Act has not been

made out. Even assuming that the offence under Section 25(1­

B)(a) is made out, sentence as awarded by the Trial Court is two

years, which the appellant has already served as per the report

available on record. Therefore, while setting aside the

conviction and the sentence for an offence under Sections

307/34 and 27 Arms Act, appellant may be directed to be

released

6. Per contra, Shri Mukul Singh, learned counsel

representing the State submits that the Trial Court and the

High Court have rightly convicted and sentenced the appellant

by the impugned judgment, however interference in this appeal

is not warranted in exercise of power under Article 136 of the

Constitution of India.

7
7. After hearing learned counsel for the parties, 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 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 by the deceased accused

Rajesh Shukla with his associates in the house of Jhallu

Kachhi 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.

8
Thereafter, under the command of S.D.O.P. Dr. Sanjay Agrawal

(PW10), police parties were prepared to apprehend the accused.

The police parties were deputed in different directions and

warning to surrender was given to Rajesh Shukla. On such

warning, as stated by them, firing was made from inside the

house of Jhallu Kachhi. H.C. Akbar Singh Gaur (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.

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

9
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 Shivnath Anuragi

(PW7), Barra (PW8) and Jhallu Kachhi (PW13), in whose house

incident had taken place, had not supported the case of

prosecution. As per the cross­examination of 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 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

10
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. P­17A, it is clear that from the right barrel of 12

bore gun, Exb. A­2, 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 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.

8. 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 set­aside the

11
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.

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

………………………….J.
[ INDIRA BANERJEE ]

……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
FEBRUARY 1, 2022.

12

Comments

Leave a Reply

Sign In

Register

Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.