State Of Madhya Pradesh vs Kanchhedi @ Pappu And Others

his appeal under Section 378(1) of the Cr.P.C. has been filed against the judgment of acquittal dated 10.10.2001 passed by the First Additional

Sessions Judge, Sagar in Session Trial No. 138/2001 by which the accused persons have been acquitted from the charges under Sections 395 and 397

of the Indian Penal Code and Sections 25(1)(k) read with Section 27 of the Arms Act.

As alleged by the prosecution, on 30.11.2000 the residents of village Udaipura heard noise of dacoity from the house of Nirmalchand Jain. Hearing

the noise, Vinod Kumar Yadav, Rameshwar Yadav and various other persons of the village gathered around the house of Nirmalchand Jain. At that

time, one of the accused persons shot fire in the air from inside the house and in return the villagers pelted stone over the thatched roof as a result 3-4

accused persons ran out from the house. The villagers ran behind them but they could not caught hold the persons. In the meantime, two other

accused persons ran from the roof and while they were jumping on the thatched roof, the villagers caught hold them. They disclosed their names as

Bahori and Kanchhedi. Both the accused persons were armed with desi katta (country-made fire arm). As alleged, the accused persons assaulted

Kamleshrani w/o Nirmalchand Jain and her son Nitesh from the handle (backside) of the desi katta due to which they sustained injuries. The FIR was

lodged and investigation was conducted by the police, the injured persons were sent to the hospital for treatment and accused persons were taken into

custody. After completion of the investigation, challan was filed in the competent Court but as the case was triable in the Court of Sessions, it was

committed before the Sessions Court where charges were framed against the accused persons and they were tried. The accused persons denied the

charges and took the defence of false implication in the case.

Learned trial Court appreciated the evidence and after appraisal in paragraph 33, findings have been recorded that the evidence of the prosecution

witnesses is not worthy to rely upon to prove the charges as levelled against the appellants. It was further stated that the recovery has not been

proved beyond reasonable doubt and in absence of the same, the accused persons were acquitted from the charge of Sections 395 and 397 of the

Indian Penal Code. So far as the charge under Sections 25(1)(k) and 27 of the Arms Act is concerned, seizure of those articles were not proved by

the independent witnesses. Therefore, the accused persons were acquitted from the said charges.

Learned Government Advocate contends that it is a case in which as per allegation, two persons were caught hold and therefore, offence have

been made out against Kanchhedi and Bahori and case of prosecution is proved against them. So far as the other accused persons are concerned,

they may not be identified in the Test Identification Parade, but other evidence are available on record, therefore, they may also be convicted for the

offence.

Learned Amicus Curiae appearing on behalf of the accused-respondents contends that in the present case, for the alleged incident, if two persons

were caught hold but if the prosecution has failed to prove their own case showing recovery in a case of dacoity, the acquittal by the trial Court is

justified. It is further stated that even the recovery of arms from the accused persons has not been proved. So far as the other accused persons are

concerned, they are not identified and recovery has not been proved from them. More so, the statement of the relevant witnesses are full of omissions

and contradictions which cannot be reliable. Hence, the appeal is liable to be dismissed.

After having heard learned counsel for the parties and on perusal of the facts of the case, firstly the issue for consideration is that the charge under

Sections 25(1)(k) and 27 of the Arms Act has not been proved. In this regard, seizure of desi katta were shown from Bahori and Kanchhedi but the

witness of seizure has not supported the case of prosecution and stated that those desi katta were kept on the table of the Investigating Officer which

have been shown as seized in the case. It is further stated that the signatures were obtained by the Police Officer on the blank papers. Therefore, the

story that the two accused persons who were running from the roof, having desi katta, has primarily not been proved by the prosecution because the

recovery of desi katta has not been proved against them. Therefore, they have been acquitted from the charge of offence under Sections 25(1)(k) and

27 of the Arms Act.

In case of allegation of having desi katta which was used during the commission of offence by the two accused persons and the seizure has not

been proved by a cogent evidence, the testimony of the witness even to caught hold them is ocular in nature and the other allegation of commission of

dacoity has also not been proved by recovery from them, hence the trial Court has rightly acquitted the accused persons.

In an appeal against acquittal, the scope of interference in the appeal is very limited. Until very inescapable conclusion of guilty can be arrived at by

the testimony and the material brought on record, the interference against the judgment of acquittal may not be made. The Apex Court has reiterated

the principles, in this regard, in the case of T.Subramanian Versus State of Tamil Nadu reported in (2006) 1 SCC 401. In the case of K.Prakashan

Versus P.K.Surendran reported in (2008) 1 SCC 258, it has been held by the Apex Court that if two views are possible, the appellate Court shall not

reverse the judgment of acquittal only because another view is possible to be taken. The appellate Court’s jurisdiction to interfere in an appeal

against acquittal is limited.

In view of the foregoing discussion, in our considered opinion, there is no merit in this appeal. Hence, the appeal is dismissed.

At the end, it is our duty to record words of appreciation in favour of Smt. Saraswati Badgaiyan, Amicus Curiae who assisted this Court in

disposal of this appeal which was pending since 2002. Her assistance is acknowledged.

Copy of this judgment along with its record be sent to the Court below for information and compliance.