In criminal appeal against conviction under Arms Act, High Court acquitted appellant as recovery of country-made pistol and lack of ballistics report and valid sanction failed to prove guilt beyond reasonable doubt, setting aside trial court sentence.
Conviction and sentence under Arms Act set aside; appellant acquitted; personal bonds and sureties discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2023:AHC:219024 Court No. 83
Reserved on 6.7.2023
Delivered on 17.11.2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. 1793 of 1996
Satya Vir Singh
...Appellant
versus
State of U. P.
....Respondent
JUDGMENT
HON'BLE SANJAY KUMAR PACHORI, J.
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appellant and his party as the appellant murdered two persons Vijay Singh and Sahab Singh earlier in which the appellant has been convicted by life imprisonment. Due to this enmity, the appellant shot fire his uncle.
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17(i). PW-4, S.I. Jitendra Singh stated in his examination-in-chief that he was on patrolling duty on 23.5.1995 at that time he was sitting on the
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shop of Juice of Jagdish near the bus stand. After hearing the sound of gunshot he came out from the shop and saw a person wearing green shirt running towards the market and a crowd was also pointing out him that he fired. He and PW-7 Srikant Pandey chased him and caught him near the Piau of RSM. On search, a country made pistol of .303 bore with used and empty cartridges were recovered from the appellant. He also recovered three live cartridges from the left pocket of the pant of the appellant. He could not show the licence of the same. He proved the recovery memo (Ex.K.-15) of the objects recovered.
17(ii).PW-4 in his cross-examination stated that the recovered country made pistol and three live cartridges are not before him today. The shop of Jagdish is about at a distance of 7-8 steps from the bus stand which is a very crowded place. He heard the gunshot and he chased the appellant from the shop and caught him at a distance of 1/2 km. Due to fear, nobody identified the appellant that he is the same person who fired. The appellant was searched in his presence at the police station in the lockup, but could not say that the copy of recovery memo was recovered from the appellant. It is wrong to say that the country made pistol and cartridges were planted by him and the appellant has been falsely implicated. It is wrong to say that he had not recovered country made pistol and cartridges from the appellant and he did not prepare any recovery memo.
17(iii). PW-5, Constable Dhyanpal Singh in his examination-inchief proved the chik report of FIR of case crime No. 153 of 1995, under Section 25 of Arms Act against the appellant. In cross-examination, he told that in search no copy of recovery memo was recovered from the appellant.
17(iv). PW-6, S.I. Ram Saran Pandey (Investigating officer) in his examination-in-chief proved the site plan (Ex.K.-16), charge-sheet (Ex.K.-17) and stated that a report of District Magistrate was filed by S.I. R.S. Panwar. The signature of District Magistrate is on it, which is Ex.K.18.
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17(v). PW-6, S.I. Ram Saran Pandey stated in his crossexamination that he did not show the shop of Jagdish in the site plan. He did not record the statement of PW-7 Srikant Pandey under section 161 of Cr.P.C. on 23.5.1995. It is wrong to say that he did not investigate the case rightly and the charge sheet has falsely been submitted against the appellant.
17(vi). PW-7, C.P. 650 Srikant Pandey stated in examination-inchief that on 23.5.1995 he was on patrolling duty along with S.I. Jitendra Singh. They were drinking water at the shop of Jagdish near the bus stand when they heard gunshot. He and S.I. Jitendra Singh came out from the shop and saw a person wearing a green shirt running towards the market. They chased and caught him in Kalar Gali near Baba Ram jas Piau at about 5:55 p.m. and arrested the person, who told his name Satyavir, son of Prem Singh resident of village Undera, P.S. Fatehpur Sikri and a country made pistol of .303 bore, an empty cartridge and three live cartridges .303 bore were recovered from the pocket of his pant. The sealed objects recovered were opened before the court and proved country made pistol as material Ex.K.- 1, live cartridges as Ex. K.-2, 3, 4 and an empty cartridge as Ex.K.-5.
17(vii). PW-7 stated in his cross-examination that he did not write the departure of patrolling duty. The place of firing is far away from the place of sitting. The crowd was collected, but nobody was ready to become a witness. They searched the appellant at the time of entrance in the police lock-up, but nothing was recovered from him. It is wrong to say that they have prepared recovery memo at the police station and falsey implicated the appellant.
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Panwar, who had not been examined. (iv) the objects recovered had not been sent for forensic report.
20. There is no independent or public witness of the recovery of country made pistol by which the appellant caused the incident, wherein witnesses of the public were available and neither they were associated nor there was any explanation given as to why they have not associated. However, as per evidence, PW-4 has stated in his cross-examination that "nobody identified the appellant that he is the same person who fired."
21. So far as the question of grant of sanction is concerned, mere filing of a document alongwith other papers submitted at the time of police report, cannot be said to be a proper compliance of giving evidence to prove the requirement of Section 39 of the Arms Act. Section 39 of the Arms Act provides that previous sanction of the District Magistrate is necessary for the prosecution against any person in respect of any offence under Section 39. Sanction under section 39 of the Arms Act is not a mere formality. It has to be proved that it was granted by District Magistrate after applying his mind. It must be shown that the firearm or weapon with respect to which sanction was prayed, was actually taken to the authority concerned and after looking to it, the relevant papers, understanding and after applying his mind sanction was granted.
22. There is no evidence on record that the investigating officer asked for sanction and nothing has been brought on record to suggest that the country made pistol .303 bore was made available to the District Magistrate at the time of granting sanction under section 39 of the Arms Act.
23. In the present case, the objects allegedly seized from the appellant were not sent to for any expert opinion either to any ballistic expert or to any armourer. There is no evidence with regard to the recovered articles
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sent for FSL report or opinion of a ballastic expert to ascertain whether the bullet could have been fired from the recovered weapon. There is no evidence on record to show that the objects recovered from the appellant satisfied the definition of "arm" and "ammunition" or "firearm" as contained in the Arms Act.
24. The recovery of one country made pistol .303 bore, one empty cartridge and three .303 bore live cartridges is not sufficient to prove the guilt of the appellant regarding the commission of the alleged offence .
25. It is difficult for the court to ascertain whether the recovered weapon has been used by the appellant in the commission of the present offence or having possession of illegal weapon, when the PW-1, PW-2 and PW-3, who were claiming themselves as eye witnesses of the incident stated that they had not seen the appellant to shot fire upon the deceased. In the absence of any such evidence, the conviction of the appellant under section 25/27 of the Arms Act cannot be sustained.
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therefore, his personal bonds and sureties are hereby discharged. The appellant will fullfill the requirement of Section 437-A Cr.P.C. to the satisfaction of the trial Court at the earliest.
29. The trial court record be returned forthwith together with a certified copy of this judgment for compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.
(Sanjay Kumar Pachori, J)
Dated: 17.11.2023 T. Sinha
Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad
3 issues framed by the court
Whether prosecution successfully proved commission of offence under Sections 25/27 of Arms Act beyond reasonable doubt.
Whether previous sanction under Section 39 of Arms Act was properly obtained and proved with production of weapon.
Whether recovery of firearm and cartridges without expert opinion or identification establishes guilt.
3 provisions across 1 enactments
Satya Vir Singh
State of U. P.
Sanjay Kumar Pachori
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
