Madhya Pradesh High Court
Gopal vs The State Of M.P. on 26 April, 2017
Bench: N.K. Gupta, S.K. Awasthi
1 Cr.A. No.02/05, 20/05, 22/05 & 148/05
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
CRIMINAL APPEAL No.02 of 2005
Chainu @ Chaina Kori
Vs.
State of Madhya Pradesh
&
CRIMINAL APPEAL NO.20 of 2005
Ram Singh
Vs.
State of Madhya Pradesh
&
CRIMINAL APPEAL NO.22 of 2005
Gopal
Vs.
State of Madhya Pradesh
&
CRIMINAL APPEAL NO.148 of 2005
Pooran Rawat
Vs.
State of Madhya Pradesh
Shri N.P. Dwivedi, Senior Counsel with Shri S.K. Tiwari,
counsel for appellant Chainu @ Chaina;
Shri Sunil Soni, counsel for appellant Ram Singh;
Shri B.S. Gaur counsel for remaining appellants.
Shri J.M. Sahni, Panel Lawyer, for the
respondent/State.
2 Cr.A. No.02/05, 20/05, 22/05 & 148/05
JUDGMENT
(26/04/2017) Per Justice N.K. Gupta:
Since all the appeals are connected as they arise out of the common judgment dated 05.11.2004 passed by the Special Judge [under Madhya Pradesh Daikaiti Evam Vypaharan Prabhavit Kshetra Adhiniyam], Shivpuri (M.P.) in Special Sessions Trial No.55/2003, they are being disposed off with the present common judgment.
(2) All the appellants have challenged the aforesaid judgment passed against them whereby each of them has been convicted of offence under Section 364-A of IPC and under Section 11/13 of the Madhya Pradesh Dakaiti Evam Vyapaharan Prabhavit Kshetra Adhiniyam (for brevity "the MPDVPK Act") and sentenced to life imprisonment with a fine of Rs. 2,000/-. No separate sentence was recorded for offence under Section 11/13 of the MPDVPK Act.
(3) The prosecution's case, in short, is that on 05.12.2002 at about 8 pm various villagers including complainant Maniram (PW-11) and abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) were sitting around the camp fire at village Ata Manpur, Police Station Tendua, District Shivpuri (M.P.). Suddenly, at about 08:00 to 08:30 pm, 5-6 culprits armed with guns surrounded the villagers and thereafter they abducted Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12).
The complainant Maniram (PW-11), then, lodged the FIR Ex.P-10 at Police Station Tendua about that incident. The culprits kept the abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) in the forest 3 Cr.A. No.02/05, 20/05, 22/05 & 148/05 for 5-6 days. Thereafter, abductee Ghanshaym Ojha (PW-12) was released with the condition that he would supply a sum of Rs.Two Lacs on 13th December, 2002. A demand letter pertaining to ransom was also given to abductee Ghanshaym Ojha (PW-12) so that he along with his relatives could collect the amount of ransom. Thereafter, when the culprits were sleeping abductee Ramdayal Ojha (PW-9) left the place and he could reach the police station Kolaras, District Shivpuri (M.P.). His statement was taken by the police officers of Police Station Kolaras and thereafter he again appeared at Police Station Tendua. Sub-inspector Ramanand Sharma (PW-19) recorded the statements of both the abductees on 12.12.2002 and started investigation. Various witnesses were examined. All the appellants along with other culprits were arrested. Various culprits like Chhota, Navla and Kishan Singh were found to be dead and accused Rakesh @ Maiya was declared absconding. After arrest of the appellants, their memos under Section 27 of the Evidence Act were recorded about the recovery of weapons etc, however, no consequential recovery could be done. The Police Officers arranged the Test Identification Parade of the appellants with the help of Naib Tahsildar Ku. Mamta Shakya (PW-4), who prepared the memo of identification proceedings Ex.P-8. Witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) identified the appellants. The witness Ghanshaym Ojha (PW-12) could not identify appellant Ram Singh. After due investigation, the charge-sheet was filed before the Special Court.
(4) The appellants abjured their guilt. They did not take any specific plea but they stated that they had 4 Cr.A. No.02/05, 20/05, 22/05 & 148/05 falsely been implicated in the matter, however, no defence evidence was adduced.
(5) The trial court, after considering the prosecution evidence, acquitted the accused Harcharan and Onkar but convicted and sentenced the appellants as mentioned above.
(6) We have heard the learned counsel for the parties at length.
(7) First of all, it is to be considered as to whether witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) were abducted. In this connection, Ramdayal Ojha (PW-9), Ghanshaym Ojha (PW-12), Naktu (PW-10), complainant Maniram (PW-11), Heeralal (PW-13), Bahadur (PW-14), Babu (PW-16) and Lattu (PW-17) were examined. The witnesses Ghanshyam Ojha (PW-12), Naktu (PW-10), complainant Maniram (PW-11), Heeralal (PW-13), Bahadur (PW-14), Babu (PW-16) and Lattu (PW-17) have stated that on the date of incident at about 8 pm they were sitting around a camp fire because it was the night of piercing cold. Suddenly various culprits armed with guns surrounded them and they abducted the abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12). On the other hand, abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) have stated that they were in their houses and the culprits entered into the house and took them. Complainant Maniram (PW-11) had lodged the FIR Ex.P- 10 soon after the incident. The incident took place at about 08:00-08:30 pm whereas the FIR was lodged in the night at about 02:30 am. In the FIR, it was mentioned that the abductees were taken from the camp fire which was arranged by the villagers. If 5 Cr.A. No.02/05, 20/05, 22/05 & 148/05 abductees were taken from their respective houses then the news of abduction could not be known by so many persons and complainant Maniram (PW-11) could not have lodged the FIR Ex.P-10. Hence, though it is a material contradiction but looking to the evidence of Naktu (PW-10), Ghanshaym Ojha (PW-12) etc along with FIR Ex.P-10, it appears that the abductees were abducted from the camp fire of the village and not from their respective houses. Since so many witnesses are corroborating the factum of abduction then by this material contradiction it cannot be said that the witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) were not abducted.
(8) The learned counsel for the appellants has submitted that compliance under Section 157 of Cr.P.C. was not properly done. According to the dispatch book Ex.P-18 and the register of letter issued Ex.P-19 the counter of FIR was dispatched on 06.12.2002 by Dispatch No.1524 and the same was delivered to the concerned magistrate on 09.12.2002 and therefore after showing the counter to be dispatched actually it was not sent to the concerned Magistrate for three days. However, the compliance under Section 157 of Cr.P.C. is not at all important in this case because due to FIR Ex.P-10 it is not a case of false implication because the FIR was lodged against unknown persons and therefore if its counter is dispatched with delay then it makes no adverse effect to the entire case of the police and therefore, though compliance under Section 157 of Cr.P.C. was not done within time, it has no adverse effect on the prosecution's case.
(9) The second point which is to be considered is as to 6 Cr.A. No.02/05, 20/05, 22/05 & 148/05 whether any ransom was demanded. In this connection, the evidence of Ramdayal Ojha (PW-9), Ghanshaym Ojha (PW-12) and complainant Maniram (PW-11) is important. According to these witnesses, the culprits forced the abductee Ramdayal Ojha (PW-9) to write down a letter for demand and according to that demand the ransom was to be paid on 13.12.2002. The abductee Ghanshaym Ojha (PW-12) was released with that letter and according to him one of the culprits went with him up to the fields of that village and thereafter the abductee Ghanshaym Ojha (PW-12) went to his house. According to Ghanshaym Ojha (PW-12) and complainant Maniram (PW-11), one demand note of ransom was shown by Ghanshaym Ojha (PW-12) to his family members and on second day he went to the police station Tendua, however, it is surprising that the abductee Ramdayal Ojha (PW-9) was in custody of the culprits and no serious action was taken by the abductee Ghanshaym Ojha (PW-12) or his family members for his release whereas Ghanshyam Ojha (PW-
12) and Ramdayal Ojha (PW-9) were the cousins. When Ghanshyam Ojha (PW-12) went to police station Tendua to inform that he was released then it was for him either to collect the ransom amount for its payment and if he had gone to the police station with the demand note of ransom then it should have been handed over to the police but neither that demand note could be produced by the abductee Ghanshyam (PW-12) to the police nor could it be produced before the court when abductee Ghanshyam (PW-12) appeared before the trial court as a witness. On the contrary, he has accepted in para 7 that he tore the demand note of ransom and threw away. It is 7 Cr.A. No.02/05, 20/05, 22/05 & 148/05 possible that when the abductee Ramdayal Ojha (PW-9) also came to the house then Ghanshaym Ojha (PW-12) would have thought that there was no relevancy of demand note and therefore he would have thrown that note after tearing it otherwise if Ramdayal Ojha (PW-9) was in custody of the culprits then it was for the abductee Ghanshaym Ojha (PW-12) to take the steps for getting the another abductee Ramdayal Ojha (PW-9) released from the clutches of the culprits. (10) Ramdayal Ojha (PW-9) has stated that when dogs barked, the culprits hid themselves in the forest and in the meantime he got the opportunity to flee therefrom and thereafter he escaped. However, according to him, he went to the police station Kolaras where his statements were recorded and thereafter he went to his house and again went to police station Tendua where his statements were recorded. It is surprising that the FIR lodged by the complainant Maniram (PW-11) at police station Tendua pertaining to abduction of abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) was pending but the investigating officer Ramanand Sharma (PW-19) did not prepare any recovery memo but he left the abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) after recording their case diary statements. Witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) have accepted that they did not inform the names of the culprits to the police and therefore such names are not available in the case diary statements Ex.D-1 and D-2. If a demand note of ransom was referred in the statements of these witnesses then it was the duty of Ramanand Sharma (PW-19) to get that demand note to 8 Cr.A. No.02/05, 20/05, 22/05 & 148/05 be seized but no seizure of that demand note was found. It appears that after release of the witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12), to prepare a case, a story of demand note was cooked. If story was true then the demand note of ransom would have been recovered by Sub-Inspector Ramanand Sharma (PW-19) and that note would have been submitted by the witness Ghanshaym Ojha (PW-12) to sub-inspector Ramanand Sharma (PW-19). Under these circumstances, it is a highly doubtful position as to whether any ransom was demanded by the culprits or not and if the demand of ransom is not proved then none of the accused can be convicted of offence under Section 364-A of IPC. (11) Lastly, it is to be considered as to whether the appellants were the persons who abducted the abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12). In this connection, it would be apparent that no reason or basis has been shown by sub-inspector Ramanand Sharma (PW-19) for arrest of the appellants whereas after arrest of the appellants he recorded so many memos under Section 27 of the Evidence Act from the appellants but no consequential recovery of any weapon could be done. When the culprits had surrounded the villagers and at the time of abduction they were armed with guns and if the appellants were the persons who committed the crime then after their arrest various guns would have been recovered from them.
(12) The learned counsel for the appellants has submitted that for preparation of memo under Section 27 of the Evidence Act sub-inspector Ramanand Sharma (PW-19) did not take any independent witness.
9 Cr.A. No.02/05, 20/05, 22/05 & 148/05Constable Pramod Purohit (PW-1), constable Dashrath Singh (PW-2), constable Lakhan Singh (PW-3), constable Brijesh Kumar Dangi (PW-8), constable Govind Singh (PW-5) and constable Roshanlal (PW-6) were taken as witnesses of memo under Section 27 of the Evidence Act. The submissions made by the learned counsel of the appellants are acceptable that sub-inspector Ramanand Sharma (PW-19) did not take any independent witness for recording the memo under Section 27 of the Evidence Act, however, that mistake has no meaning in the case because such memos are not admissible in absence of any consequential recovery. Hence, no confession of any of the appellants could be accepted by recording of such memos because it is barred under Section 24 of the Evidence Act. The confession before the police cannot be accepted. In the absence of any consequential recovery such documents were not at all important or admissible. The prosecution wasted the precious time of the trial court in examining various witnesses to prove such memos, however, it is important to note that no weapon could be recovered from any of the appellants though it is said that culprits were armed with guns when they had abducted the abductees Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12).
(13) On the basis of the aforesaid discussion, the appellants can be convicted for the aforesaid offences only on the basis of their identification, done by witnesses Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) before the Naib Tahsildar Ku. Mamta Shakya (PW-4), who prepared the memo of identification proceedings Ex.P-8. Naib Tahsildar Ku. Mamta Shakya 10 Cr.A. No.02/05, 20/05, 22/05 & 148/05 (PW-4), Ramdayal Ojha (PW-9) and Ghanshaym Ojha (PW-12) have stated that approximately eight persons were added in jail and in a line of 12 persons, the culprits have been identified. Thereafter, the memo Ex.P-8 was prepared. The learned Senior Advocate for the appellant Chainu @ Chaina Kori has submitted that identification proceeding suffers from so many lacunae. The identification parade was arranged much after the arrest of the accused persons and therefore there was an opportunity to the victims to see the culprits and hence test identification parade arranged by the Executive Magistrate and Naib Tahsildar Ku. Mamta Shakya (PW-4) is not acceptable. In this connection, the judgment passed by the Division Bench of this Court in the case of "Babloo Vs. State of M.P." [I.L.R. (2009) MP 1780] is referred in which it is held that if test identification parade is arranged with delay then it loses its evidentiary value. In the said judgment of Babloo (supra), the Division Bench of this Court has referred the judgments passed by the Apex Court in the case of "Acharaparambath Pradeepan & Anr. Vs. State Of Kerala" [(2008) 1 SCC (Cri.) 241] and "Rajesh Govind Jagesha Vs. State of Maharashtra" [AIR 2000 SC 160]. In the case of Acharaparambath Pradeepan (supra), the Apex Court has found that the delay of two months was fatal to the identification proceedings and the identification was discarded whereas in case of Rajesh Govind Jagesha (supra), the Apex Court has found that due to inordinate delay the evidence of TIP was discarded. In the present case, appellant Chainu @ Chaina Kori was arrested on 17.01.2003 whereas Pooran was arrested on 11.04.2003 11 Cr.A. No.02/05, 20/05, 22/05 & 148/05 and Ram Singh and Gopal were arrested on 16.04.2003 whereas TIP was arranged on 29.04.2003. Under these circumstances, it can be said that arrangement of test identification parade relating to appellant Chainu @ Chaina Kori was highly delayed whereas identification of appellants Gopal, Ram Singh, Pooran was done within reasonable time and therefore the aforesaid judgments of the Apex Court shall be applicable to the appellant Chainu @ Chaina Kori and the evidence of TIP against Chainu @ Chaina Kori shall be discarded. (14) The learned counsel for the appellants has pointed out that Naib Tahsildar Ku. Mamta Shakya (PW-4) has accepted that she did not mention the description of persons who were mixed with the accused persons at the time of arrangement of TIP. In this connection, the judgment passed by the Apex Court in the case of "State of Goa Vs. Sanjay Thakran and another"
[(2007) 2 SCC (Cri.) 162] may be referred in which it is held that if dummy accused put in TIP were not of the similar age as that of the accused then a serious doubt relating to the fairness of the TIP shall be created and that identification proceedings shall be discarded. In the light of the aforesaid judgment, if factual position of this case is considered then it is true that Naib Tahsildar had arranged the TIP in jail and dummy candidates were made available by the jail authorities, however, it was the duty of the Naib Tahsildar to see as to whether dummy candidates were of similar age group or not. Under these circumstances, a doubt is created pertaining to identification of the appellants in test identification parade Ex.P-8.
(15) The learned Senior Counsel for the appellant 12 Cr.A. No.02/05, 20/05, 22/05 & 148/05 Chainu @ Chaina Kori has also invited the attention of this Court to the judgment passed by the Apex Court in the case of Rajesh Govind Jagesha (supra) separately but since it has already been referred and discussed in previous paragraphs, hence, there is no need to repeat about the law laid down by the Apex Court in that judgment. Again, the question remains as it is as to how the Sub-Inspector Ramanand Sharma (PW-19) thought to arrest the appellants, connected them with crime and also to arrange the TIP. This question remains without any answer given by Sub-Inspector Ramanand Sharma (PW-19), however, it is answered by Ghanshyam Ojha (PW-12) that Sub-Inspector Ramanand Sharma (PW-19) had shown some photographs at police station and on his identification these culprits were arrested. When the victims had already seen the photographs of appellants at police station then there was no difficulty for them to identify the appellants in TIP for which a memo Annexure Ex.P-8 was prepared by Naib Tahsildar. In every case, the formal TIP was not required to be proved if the investigating officer had shown the photographs of various culprits then memo of that identification could have been prepared amongst the independent witnesses that the stock photos kept in the police station were shown to the victims and they identified some of the culprits then such identification is also acceptable as evidence. However, sub-inspector Ramanand Sharma (PW-19) did not claim such identification and he did not prepare any identification memo before the independent witnesses that the victims identified the appellants in the stock photos of the appellants and therefore the TIP recorded in memo 13 Cr.A. No.02/05, 20/05, 22/05 & 148/05 Ex.P-8 also loses its evidentiary value. (16) It is also to be mentioned that one accused Harcharan was also blamed by the victims and when abductee Ramdayal Ojha (PW-9) was asked about his relationship with the accused Harcharan he denied about any relationship but abductee Ghanshyam Ojha (PW-12) has accepted that accused Harcharan was his maternal cousin. The same fact is accepted by complainant Maniram (PW-11) in para 2 of his statement that accused Harcharan was cousin of abductees. When it was accepted by complainant Maniram (PW-11) that accused Harcharan was the cousin of the abductees then abductee Ghanshyam Ojha (PW-12) has accepted in his statement before the court that the accused Harcharan was his cousin and he appended that he was not involved in the crime. If memo of identification parade Ex.P-8 is perused then in that parade name of Harcharan was also mentioned and thereafter it was scored off. Looking to the activities of the abductees and the investigating officer sub-
inspector Ramanand Sharma (PW-19) that they made Harcharan to be accused who was not involved in the crime and he was the relative of abductees, it would be apparent that various accused were arrested by the police on its own and thereafter the TIP was arranged where the photographs of the appellants were shown to the abductees prior to the arrangement of TIP, hence, the evidence of TIP loses its evidentiary value and it is not proved beyond doubt that the appellants were the persons who abducted the victims Ramdayal Ojha (PW-
9) and Ghanshaym Ojha (PW-12).
(17) On the basis of the aforesaid discussion, it is not 14 Cr.A. No.02/05, 20/05, 22/05 & 148/05 proved beyond doubt that any ransom was demanded by the culprits and therefore no appellant can be convicted of offence under Section 364-A of IPC. Similarly, it is not proved beyond doubt that the appellants were the persons who abducted the victims Ramdayal Ojha (PW-
9) and Ghanshaym Ojha (PW-12) and therefore the appellants cannot be convicted of any inferior offence to offence under Section 364-A of IPC having similar nature. The trial court has committed an error in convicting the appellants of offence under Section 364- A of IPC and consequently of offence under Section 11/13 of the MPDVPK Act. The appeals filed by the appellants are acceptable and consequently the same are accepted. The conviction as well as sentence recorded by the trial court against the appellants for offence under Section 364-A of IPC read with Section 11/13 of MPDVPK Act is hereby set aside. The appellants are acquitted from the aforesaid charges. They would be entitled to get the fine amount back if they had deposited the same before the trial court. (18) The appellants are on bail. Their presence is no more required before this Court and therefore it is directed that their bail bonds shall stand discharged. (19) A copy of this judgment be sent to the court below along with its record for information and compliance.
(N.K. Gupta) (S.K. Awasthi)
Judge Judge
(26/04/2017) (26/04/2017)
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