VASUDEVversusSTATE OF M.P.

514                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 514               [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)
C     along with SDOP (PW-10) reached a village on having information
      that an absconding accused ‘R’ was hiding with his associate
      members – The accused persons were hiding in a house – PW-10
      challenged the accused to surrender – However, the accused persons
      opened fire on the police from inside the house – After retaliation
D     from the police parties, the accused ‘R’ expressed his wish to
      surrender – Accordingly, the accused ‘R’ along with accused/
      appellant surrendered before the police – After surrendering, one
      315 bore rifle along with 19 live cartridges and 5 empty cartridges
      were recovered from ‘R’ and one 12 bore double barrel gun along
      with 20 live cartridges and 7 empty cartridges were recovered from
E     accused/appellant – The Trial Court convicted the accused persons
      u/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 High
      Court – During the pendency of appeal, accused ‘R’ died and his
      appeal was dismissed as abated – The High Court confirmed the
F     judgment of the Trial Court and the remaining appeal of the
      appellant/accused was dismissed – On appeal, held; As per the
      testimonies of the prosecution witnesses PW-4, PW-5, PW -10, PW-
      14 and PW-16, it is apparent that an information of hiding by the
      deceased accused with his associate in a house was received,
      however, in their statements it is not said that appellant was with
G     him – Further, PW-5 in cross-examination said that the firing was
      towards the hill area and not towards the police party – None of the
      witnesses saw appellant firing on police – So as per the said
      testimony, it is apparent that the intention and knowledge to commit
      an act by them towards the policy party was not proved beyond
H     reasonable doubt – The arrest, seizure were prepared at the police

                                      514
                    VASUDEV v. STATE of M.P.                           515


station and not on spot – Three independent witnesses, PW-7, PW-8      A
and PW-13 did not supported the case of prosecution – Further, as
per FSL report, the right barrel of 12 bore gun, fire could not be
done and the empty catridges, which were received were not fired
from the left barrel – Therefore, use of 12 bore gun is not proved –
Considring all these aspects, the ingredients of s.307/34 IPC and
                                                                       B
s.27 of the Arms Act were not proved by the prosecution beyond the
reasonable doubt, proving the guilt of the appellant – The Trial
Court and the High Court committed error in convicting the appellant
u/s. 307/34 IPC r/w s.27 Arms Act – Therefore, the conviction and
sentence for the said charges are set aside, except of the charge u/
s. 25(1B)(a) of the Arms Act.                                          C
      Partly allowing the appeal, the Court
      HELD: 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
                                                                       D
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         E
regard, 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 information
of hiding by the deceased accused ‘R’ with his associates in a
house of village Mahoi Kala was received. In their statements, it
                                                                       F
is not said that appellant was with him. The police personnel of
nearby police stations were called at Village Mahoi Kala.
Thereafter, under the command of S.D.O.P. (PW10), police parties
were prepared to apprehend the accused. The police parties were
deputed in different directions and warning to surrender was given
to ‘R’. On such warning, as stated by them, firing was made from       G
inside the house. H.C.(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
                                                                       H
516            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


A     to commit an offence, proving his guilt. Subsequently, as alleged,
      ‘R’ 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,
B
      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. It is not out of place to mention that three
C     independent witnesses PW7, PW8 and PW13, in whose house
      incident had taken place, had not supported the case of
      prosecution. As per the cross -examination of prosecution
      witnesses, 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,
D
      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
E     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 case beyond
      reasonable doubt and the conviction cannot be based merely on
      the basis of presumption to rule out the presence of accused. It
F
      is to further observe that as per FSL Report Exb. P-17A, it is
      clear that from the right barrel of 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 proved along
G     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 opinion of this Court, the ingredients of Section 307/


H
                     VASUDEV v. STATE OF M.P.                                517


34 IPC and Section 27 of the Arms Act have not been proved by                A
the prosecution beyond reasonable doubt, proving the guilt of
the accused/appellant. [Para 7][520-C-H; 521-A-G]
      Parsuram Pandey 6 and others v. State of Bihar, AIR
      2004 SC 5068 : [2004] 5 Suppl. SCR 475 – referred
      to.                                                                    B
                        Case Law Reference
[2004] 5 Suppl. SCR 475          referred to               Para 5
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.388 of 2021.                                                              C
     From the Judgment and Order dated 14.02.2020 of the High Court
of 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.
                                                                             D
      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 Criminal
Appeal No. 622 of 2009 by the High Court of Madhya Pradesh, judicature       E
at Jabalpur, confirming the judgment dated 7.3.2009 in S.T. No. 185 of
2006 passed by the 6th 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 been registered and heard on priority basis as the appellant being the   F
senior citizen.
       2. The case of the prosecution in brief is that on 15.6.2006, 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 absconding accused Rajesh Shukla was hiding       G
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.

                                                                             H
518             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


A     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
B
      accused Rajesh Shukla expressed his wish to surrender. Accordingly,
      the accused Rajesh Shukla along with accused/appellant Vasudev Shukla
      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
C     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. P-18. The weapons, so surrendered,
      had been seized at the police station along with live cartridges Exb. P-4
      to P-6. The accused persons were arrested vide arrest panchnama Exb.
      P9 and P10. After completion of the investigation, challan was filed. As
D
      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. Appellant-Vasudev
E     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 c-accused Rajesh Shukla in this case.
             3. Prosecution has examined as many as 16 witnesses, while the
F     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,
G     further observed that guns so seized, may fire and the used and un-used
      cartridges of 315 bore as well as a 12 bore double barrel gun were
      seized, which finds support from the FSL Report Exb. P-17A 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
H     under Section 307/34 IPC read with Section 3/25 (1B)(a) and 27 of the
                      VASUDEV v. STATE of M.P.                                 519
                       [J. K. MAHESHWARI, J.]

Arms Act and directed to undergo R.I. for four years with fine of Rs.          A
2,000/- and R.I. for two years with fine of Rs. 1000 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     B
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        C
itself, there was no apprehension of abscondment of appellant. From the
statement of prosecution witnesses, it is clear that deceased co-accused
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. P-5, 12 bore           D
double barrel gun, 20 live cartridges and 7 empty cartridges were seized
from him. FSL report Exb. P-17A 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. A-2. Similarly, the right barrel of 12 bore gun Exb. A-2      E
, 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                     F
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    G
placed on the judgment of this Court in the case of Parsuram Pandey
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
                                                                               H
520             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     report Exb. P-17A. 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
B
      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
C     Article 136 of the Constitution of India.
             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
D     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
E     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
F     is not said that appellant was with him. 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 were deputed in
      different directions and warning to surrender was given to Rajesh Shukla.
G     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
H
                       VASUDEV v. STATE of M.P.                                  521
                        [J. K. MAHESHWARI, J.]

Shukla and appellant had surrendered along with guns before the police           A
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
                                                                                 B
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. 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 cross-examination of prosecution                 C
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
                                                                                 D
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 case beyond reasonable             E
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. P-17A, it is clear that from the right barrel
of 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,
                                                                                 F
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                G
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 set-aside the conviction and sentence for the said            H
522                SUPREME COURT REPORTS                         [2022] 1 S.C.R.


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


      Ankit Gyan                                                Appeal partly allowed.



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