AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1166 of 2003
Judgment Reserved on : 2.5.2018
Judgment Delivered on : 1.8.2018
Pannalal Sharma, son of Late Shri Shankarlal Sharma, aged about 63 years,
Retired Jailer, R/o Kanchanganga Colony, Raipur, Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through Police Station Dhamtari, District Raipur,
Chhattisgarh
— Respondent
——————————————————————————————————
For Appellant : Shri P.P. Sahu and Shri R.K. Pali, Advocates
For Respondent : Shri U.K.S. Chandel, Panel Lawyer
——————————————————————————————————
Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 29.10.2003
passed by the 9th Additional Sessions Judge (FTC), Raipur in
Sessions Trial No.177 of 1996 convicting and sentencing the
Appellant as under:
Conviction Sentence
Under Section 25(1B)(a) of Rigorous Imprisonment for 1
the Arms Act year and fine of Rs.500/- with
default stipulation
2. Facts of the case, in brief, are that on the fateful day, the Appellant
was posted as a Jailer in Sub-Jail, Dhamtari. In January-February
of 1995, brother of the prosecutrix (PW22) was lodged in the said
2
jail relating to a case under Section 151 of the Code of Criminal
Procedure. It is alleged that the prosecutrix (PW22) along with her
husband went to the jail. Thereafter, she went to the house of the
Jailer/Appellant. The Appellant called her again on the next day.
Thereafter, he sent her husband out to bring some articles and
thereafter he committed rape with the prosecutrix. She did not tell
the incident to any person due to fear. It is further alleged that the
Appellant used to call the prosecutrix at his house frequently. The
Appellant and co-accused Mohan Pinjani, Chintamani Rao, Shyam
Sunder, Ghevarchand, Shailendra, Ramanuj Sharma and Shailesh
used to drink liquor together and they also make the prosecutrix
drink liquor and thereafter they used to commit sexual intercourse
with the prosecutrix. Later on, the prosecutrix told about the
incident to her husband. She lodged First Information Report
(Ex.P29). During investigation, 1 desi katta (country-made pistol)
of 12 bore, 4 cartridges of 12 bore and other articles were seized
from possessions of the Appellant vide Ex.P34. The seized katta
and cartridges were examined by Head Constable Krishna Rao
(PW21). His examination report is Ex.P28 in which he has opined
that the katta was made of 12 bore and was in working condition.
He has further opined that 3 cartridges were alive and 1 cartridge
was misfired. Sanction for prosecution (Ex.P33) of the Appellant
was issued by the Collector/District Magistrate, Raipur.
Statements of witnesses were recorded under Section 161 of the
Code of Criminal Procedure. On completion of the investigation, a
charge-sheet was filed against the present Appellant as well as
against co-accused Mohan Pinjani, Chintamani Rao, Shailendra,
Shyam Sunder, Ghevarchand, Ramanuj Sharma and Shailesh for
offences punishable under Sections 376(2)(g), 506B, 292 of the
3
Indian Penal Code and under Sections 25 and 27 of the Arms Act.
Charges were framed against the present Appellant under Sections
376(2)(g), 506 Part II, 292 of the Indian Penal Code and under
Sections 25(1B)(a) and 27 of the Arms Act, against co-accused
Shailesh under Section 376(2)(g) of the Indian Penal Code, against
co-accused Mohan Pinjani under Section 376(2)(g) of the Indian
Penal Code, against co-accused Chintamani Rao under Section
376(2)(g) of the Indian Panel Code, against co-accused Shailendra
under Section 376(2)(g) of the Indian Penal Code, against co-
accused Shyam Sunder under Sections 376(2)(g) and 506 Part II
of the Indian Penal Code, against co-accused Ghevarchand under
Section 376(2)(g) of the Indian Penal Code and against co-
accused Ramanuj Sharma under Section 376(2)(g) of the Indian
Penal Code.
3. To rope in the accused persons, the prosecution examined as
many as 29 witnesses. Statements of the accused persons were
also recorded under Section 313 of the Code of Criminal
Procedure in which they denied the circumstances appearing
against them, pleaded innocence and false implication.
4. During trial, co-accused Ramanuj Sharma and Shailesh died. After
trial, co-accused Mohan Pinjani, Chintamani Rao, Shailendra,
Shyam Sunder and Ghevarchand have been acquitted of all the
charges. The present Appellant has been convicted only under
Section 25(1B)(a) of the Arms Act and has been acquitted of all the
other charges framed against him. He has been sentenced as
mentioned in first paragraph of this judgment. Hence, this appeal.
4
5. Learned Counsel appearing for the Appellant argued that
statement of Pratap Singh (PW28), the witness of seizure of desi
katta is not reliable. He has categorically stated that he did not
remember that even the said seizure was made before him or not.
How was this witness present at the time of alleged recovery is
also a big question. The presence of other seizure witness Baldeo
Singh (PW29), who was residing 5 Kms. away from the place of
occurrence is also a big question. His statement is also totally
unreliable and cannot be made basis for the conviction. He further
argued that the sanction of the Collector for prosecution of the
Appellant is not in accordance with law. Before granting sanction
for prosecution, the Collector was not given full particulars.
Therefore, it cannot be said that the Collector was apprised with
the correct position and he applied his mind while granting the
sanction for prosecution. Therefore, the conviction of the Appellant
is not maintainable.
6. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment and submitted that both the
seizure witnesses have supported the seizure of katta and
cartridges. The sanction for prosecution of the Appellant is also in
accordance with law. The Appellant has rightly been convicted and
sentenced by the Trial Court.
7. I have heard Learned Counsel appearing for the parties and
perused the record minutely.
8. Regarding seizure of the katta and cartridges, Inspector Bhim
5
Bahadur Singh (PW25) has stated that on 26.6.1995 at about 9:30
p.m., he had seized 1 desi katta (country-made pistol) in working
condition and 4 live cartridges of 12 bore, 1 air pistol, ½ packet of
chharra of air pistol and other articles vide Ex.P34. Pratap Singh
(PW28) and Baldeo Singh (PW29) are the witnesses before whom
the said seizure was made. Both have supported the case of the
prosecution and have stated that the police had seized the desi
katta, cartridges and other articles from the house of the Appellant
in their presence vide Ex.P34. In paragraph 4 of his cross-
examination, Pratap Singh (PW28) has stated that the cartridges
were kept in a bag which was lying on the chhajja constructed in
the room and the katta was kept in open condition. He has further
stated that audio cassettes were lying on bed. But, other seizure
witness Baldeo Singh (PW29), in paragraph 3 of his cross-
examination, has stated that all the articles were recovered from an
attachi kept over an almirah placed in the room. From the above, it
is clear that there is contradiction in the statements of both the
seizure witnesses. Whether the seized articles were kept over the
chhajja or in an attachi kept over the almirah is not clear.
9. The seized katta and cartridges were examined by Head
Constable Krishna Rao (PW21) on 18.7.1995. His report is
Ex.P28. He has stated that the katta was in working condition and
3 cartridges were alive and 1 cartridge was misfired. The above
katta and cartridges were seized on 26.6.1995 vide Ex.P34. There
is no evidence on record as to where and in which condition the
said seized articles were kept. The katta and cartridges were
examined by Head Constable Krishna Rao (PW21) on 18.7.1995.
His examination report (Ex.P28) also does not suggest that the
6
said katta and cartridges were placed for examination before him in
a sealed condition.
10. Regarding the sanction for prosecution of the Appellant, the
prosecution has examined Julfakar Haidri (PW24), a Clerk of the
Collectorate, Raipur. He has only stated that vide Ex.P33, the
Collector issued the order of sanction for prosecution of the
Appellant, but during cross-examination, he has categorically
admitted that he was unable to state that which documents were
referred to and on what grounds the sanction for prosecution was
granted. The sanction order (Ex.P33) reads as under:
“dk;kZy; dysDVj ,oa ftyk naMkf/kdkjh] jk;iqj
vkns’k
dzekad dA vfHk-fy-A95 jk;iqj] fnukad 14795
iqfyl v/kh{kd] jk;iqj ds vijk/k dzekad 220@95 /kkjk 25] 27
vkElZ ,DV ds rgr vkjksih iUukyky firk ‘kadjyky ‘kekZ mez 56
lky mi tsy /kerjh ls 1 ns’kh dV~Vk 12 cksj dk 4 dkjrql pkyw
gkyr esa tIr fd;k x;k gS A vkElZ ,DV dh /kkjk 3 dk mYya?ku
,d naMuh; vijk/k gS A
vr% vkjksih iUukyky ‘kekZ firk ‘kadjyky ‘kekZ dks ‘kL
vf/kfu;e ds vUrxZr /kkjk 39 ds rgr U;k;ky; esa vfHk;ksftr djus
dh vuqefr iznku dh tkrh gS A
lgh%
¼nsojkt fojnh½
ftyk naMkf/kdkjh] jk;iqj
i`”Bkadu dzekad dAvfHk-fy-A95 jk;iqj fnukad 14795
izfrfyfi% iqfyl v/kh{kd] jk;iqj dks dzekad ,e-A12976A95
fnukad 13795 ds lanHkZ esa MqIyhdsV Mk;jh
lfgr izsf”kr gS A
gLrk{kj
ftyk naMkf/kdkjh]
jk;iqj”
11. From a bare perusal of the sanction order (Ex.P33) also, it is not
7
clear that which documents were referred to and on what grounds
the sanction for prosecution of the Appellant was accorded by the
Collector. Hence, it is established that the Collector had not
applied his mind before according the sanction for prosecution and
it appears to have been granted by him in routine manner.
12. From the above, it is clear that though the seizure witnesses
Pratap Singh (PW28) and Baldeo Singh (PW29) have supported
the seizure, but there is contradiction in their statements. One has
stated that the seized articles were kept over the chhajja, but the
other has stated that the seized articles were kept in an attachi
which was kept over an almirah placed in the room. Hence, the
seizure is doubtful. Apart from that, the seized katta and cartridges
were examined by Head Constable Krishna Rao (PW21) on
18.7.1995. There is no evidence on record as to where and in
which condition the seized articles were kept after their seizure and
before their examination. It is also not established that the seized
articles were placed for examination in a sealed condition. The
sanction for prosecution (Ex.P33) also does not reflect that there
was an application of mind by the Collector before granting it and it
appears to have been granted by him in routine manner.
Therefore, the offence under Section 25(1B)(a) of the Arms Act
against the present Appellant is not proved beyond reasonable
doubt.
13. Consequently, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. The Appellant is acquitted of
the charge framed against him.
8
14. It is reported that the Appellant is on bail. His bail bonds shall
continue for a further period of six months from today in terms of
the provisions contained in Section 437A of the Code of Criminal
Procedure.
15. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal