Madhya Pradesh High Court
Heeralal vs State Of M.P. on 22 February, 2018
THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR
Division Bench:
(Rajendra Mahajan J. & Anand Pathak J.)
CRIMINAL APPEAL No. 838 of 2005
Heera S/o Moti Kanjar aged about
60 years occupation agriculturist
R/o village Biryai under Police
Station Kumbhraj district Guna
(M.P.). Appellant
Versus
The State of Madhya Pradesh
through Police Station Kumbhraj
district Guna (M.P.). Respondent
_______________________________________________
For appellant :- Shri Raghuveer Singh,
learned counsel.
For respondent/State :- Shri J.M. Sahni, learned
Public Prosecutor.
___________________________________________
JUDGMENT
(Pronounced on the 22nd day of February 2018) Per: RAJENDRA MAHAJAN, J.
Appellant-accused Heera has filed this criminal appeal under Section 374 (2) of the Code of Criminal Procedure (for short "CrPC") challenging the legality and correctness of the judgment of conviction and order of sentence dated 13/10/2005 passed by the Additional Sessions Judge 2 CrA.838/2005 Chachoda district Guna in Sessions Trial No. 23/1997, whereby he has been convicted and sentenced for the following offences punishable under the Indian Penal Code (for short "IPC") S.No. Sections of IPC Sentences Default Jail Sentence 1 395 Ten years rigorous R.I for two years imprisonment (for short "R.I.") with a fine of Rs.500/- (Five Hundred).
2 396(2 counts) R.I for life with a fine of R.I for two years Rs.500/- (Five Hundred) for each of the two counts.
3 397 (2 counts) R.I for seven years for NIL each of the two counts.
with the directions that the jail sentences shall run concurrently, but the default jail sentences shall run consecutively.
2. The prosecution case as unfolded before the trial court, in brief, is as under:-
(2.1) On 19/1/1996 at about 5:15 am, complainant Mintabai (PW-12) made an oral FIR to S.S. Parmar (not examined), the Station House Officer, at Police Station Kumbhraj district Guna stating that she and her family members reside in a house built in her Khet (Agricultural field) which is situated on the periphery 3 CrA.838/2005 of village Nathpura. In the night between 18/1/1996 and 19/1/1996, she and her husband Kailash (PW-28) were sleeping in the bedroom while her sisters-in-law (Nanad) Kabulibai (not examined), Guddibai (PW-23) and Pramila (PW-24), devar Girraj (PW-29) and mother-in-law Kappibai (since deceased) were sleeping in the Osara (Veranda) of the house. Her devar Ramesh (since deceased) was sleeping outside of the house to guard their crop of Soyabean. In the night at about 1:00 am, her devar Ramesh screamed loudly. Thereupon, they woke up. Her husband Kailash saw in the light of an electric bulb that three dacoits were assaulting him with wooden planks.
When he went to rescue him (Ramesh), the dacoits also assaulted him with planks and tied him with a rope. When Kappibai, Girraj, Kabulibai, Guddibai and Pramila and she went to rescue them, 4 CrA.838/2005 the dacoits also hit them with planks.
One dacoit forcibly removed silver ornaments namely Kadas (which are worn around the top of feet) and
Khangwaris, which she, Kappibai and Guddibai were wearing, from their persons. The dacoits also looted Rs.4,000/- (Four Thousand) in cash, one quintal Soyabean and their wearing clothes from the house. When the dacoits left the house, Girraj informed fellow villagers namely Ramdhan (PW-
10), Kanhaiyalal (PW-11), Rajendra (PW-
14), Gorelal (PW-15), Madan Lal (PW-
17), Kaluram (PW-18) Ramgopal (PW-
19), Ramcharan (PW-20) and Jagdeesh( PW-26) and others. Some of them came to the scene of crime, and they found that Ramesh succumbed to his injuries. The villagers brought her, Kailash, Kabulibai, Guddibai, Pramila, Kappibai and Girraj in injured conditions 5 CrA.838/2005 and dead body of Ramesh in a tractor to the police station. Complainant Mintabai has stated that there may be five dacoits in total. She has also stated the physical descriptions of some of the dacoits, and looted ornaments with their weights and values.
(2.2) H.S. Parmar reduced the oral FIR of her into writing being Ex.P-24, and he registered a case at Crime No. 19/1996 against five unknown dacoits for an offence punishable under Section 396 IPC. Thereafter, he sent the injured for medico-legal examinations and the dead body of Ramesh for postmortem.
(2.3) On 19/1/1996, Dr. S.R. Dengre (PW-3) medico-legally examined Kappibai, Pramila and Kabulibai at the Civil Hospital Kumbhraj and gave their MLC reports Ex.P-4, P-5 and P-6 respectively. On the same day in the hospital, Dr. B.P. Namdev (PW-5) examined injured 6 CrA.838/2005 Kailash, Mintabai and Girraj and gave their MLC reports Ex.P-8, P-9 and P-10 respectively. On the same day, upon the advice of said doctors, Dr. R.K. Jain (PW-
2), the Radiologist at District Hospital Guna, took x-rays of heads of Kailash and Kappibai and gave their x-ray reports Ex.P-2 and P-3.
(2.4) On 19/1/1996, A.S.I. O.P.S. Jadon (PW-
21) prepared the inquest report Ex.P-20 of deceased Ramesh in the presence of the witnesses. Upon his application, Dr. S.R. Dengre (PW-3) performed autopsy of his dead body and gave autopsy report Ex.P-7. According to his opinion, deceased Ramesh suffered a homicidal death on account of the injuries sustained by him.
(2.5) As per merg intimation report Ex.P-32, Kappibai succumbed to injuries in the course of treatment at J.A. Hospital Gwalior on 20/1/1996 at about 6:30 am. 7 CrA.838/2005 Thereafter, A.S.I. Badan Singh Kushwah (not examined) prepared inquest report Ex.P-20 of her dead body in the presence of the witnesses. Upon his application, on 20/1/1996 Dr. Madhup Kumar (PW-1) carried out postmortem examination of her dead body and gave postmortem report Ex.P-1. According to his opinion, deceased Kappibai suffered a homicidal death on account of the injuries received by her.
(2.6) S.S. Parmar undertook the investigation of the case. In the course of which, on 19/1/1996 in the presence of witnesses namely Champa Lal (PW-27) and Ramdhan (PW-10), he seized various articles from the scene of Crime vide seizure memos Ex.P-35 to Ex.P-43. On 20/1/1996, he got the map of the place of occurrence Ex.P-33 prepared from Halka Patwari Mahesh Kashyap (PW-25). On 31/3/1996, he arrested appellant 8 CrA.838/2005 Heera vide arrest memo Ex.P-12 in the presence of witnesses namely Amrit Lal (PW-6) and Jagdeesh S/o Ramkishan (PW-7). On the same day, he also interrogated appellant Heera in their presence. Upon the information given by him, he prepared disclosure statement Ex.P-14, and at his instance he seized one pair of Kadas made of silver and one Pharsi vide seizure memo Ex.P-15 in their presence on the same day. In the course of investigation, he also arrested acquitted accused Chandan Singh and absconding accused namely Mishrya and Harbhajan, interrogated them in the presence of the witnesses and upon their disclosure statements, he seized at their instances various articles connecting them with the dacoity.
(2.7) On 17/5/1996, S.S. Tomar, (PW-3) the Tehsildar of Kumbhraj, held the Test Identification Parade (for short "T.I.P") of 9 CrA.838/2005 appellant Heera, acquitted accused Chandan Singh and absconding accused Mishrya from prosecution witnesses Girraj, Mintabai and Pramila and prepared test identification memo Ex.P-
25. On 17/6/1996, K.L. Yadav (PW-4), conducted the TIP of seized articles from prosecution witnesses Kailash, Girraj, Mintabai and Guddibai and prepared test identification memo of the articles Ex.P-
7. (2.8) In the course of investigation, S.S. Parmar found that absconding accused Chandriya and Sagar were also involved in the crime.
(2.9) Upon completion of the investigation, the police filed a charge-sheet against a total of six accused persons by name for their prosecution for the offences punishable under Sections 395, 396 and 397 IPC declaring accused Chandriya and Sagar absconding in the court of 10 CrA.838/2005 Additional Chief Judicial Magistrate Chachoda. The learned ACJM committed the case to the Sessions Court Guna vide committal order dated 1/1/1997. The Sessions Judge made over the case to the court of Additional Sessions Judge Chachoda for trial.
3. The learned ASJ framed charges against appellant Heera and accused persons namely Chandan Singh, Mishrya and Harbhajan for the offences punishable under Sections 395, 396 and 397 IPC. They denied the charges and opted for trial. Thereupon, they were put to trial. In the course of trial, accused Harbhajan and Mishrya jumped bail. Thereupon, the trial court has declared them absconding. Consequently, the trial court completed the trial against acquitted accused Chandan Singh and appellant Heera and passed the impugned judgment in respect of them.
4. In the examination under Section 313 CrPC, appellant Heera denied all the incriminating evidence and circumstances appearing against him in the prosecution case. His defence was simpliciter false implication. 11 CrA.838/2005 However, he did not adduce any evidence either documentary or oral.
5. From the perusal of the impugned judgment, we find that the learned ASJ has stated that the prosecution has produced two sets of evidence against appellant Heera. First - Investigating Officer S.S. Parmar had seized one pairs of Kada made of silver and one Pharsi in the presence of prosecution witnesses Amrit Lal (PW-6) and Jagdeesh (PW-7) at his instance. Later, the said articles were identified by prosecution witnesses namely Kailash, Girraj, Guddibai and Mintabai in the TIP of articles which was held by K.L. Yadav (PW-4). As per, para 38 of the impugned judgment, the trial court has given the prosecution 125 opportunities for recording the statement of S.S. Parmar, but he did not turn up to give his statement. As a result, the trial court had to close his right of giving statement before it. Both the said prosecution witnesses Amrit Lal and Jagdeesh turned hostile. Therefore, the seizure of the said articles at the instance of appellant Heera has not been proved by the prosecution. Consequently, the TIP of aforesaid articles has no evidentiary value. Second - In the course of T.I.P 12 CrA.838/2005 and before the trial court, prosecution witnesses namely Mintabai, Girraj and Pramila identified appellant Heera. On the basis of the evidence of his identification, the learned ASJ has convicted him for the offences punishable under Sections 395, 396 and 397 IPC and sentenced him thereunder as noted in para 1 of this judgment. At this juncture, it is apposite to state that the learned ASJ acquitted accused Chandan Singh of the said charges on the ground that there is no evidence worth the name against him connecting him with the crime. Feeling aggrieved by the impugned judgment, appellant Heera has filed this appeal.
6. At the time of final arguments, we are informed by learned Public Prosecutor that the respondent/State has not filed an appeal against the order of acquittal of accused Chandan Singh. Therefore, his order of acquittal has attained finality.
7. Learned counsel for the appellant Heera submitted that the learned ASJ has convicted appellant Heera only on the ground that in the course of TIP and before the trial court prosecution witnesses Mintabai, Girraj and Pramila identified him without taking into account what 13 CrA.838/2005 will be the negative effect of long delay in conducting TIP upon its credibility and reliability. According to him, as per arrest memo Ex.P-12, appellant Heera was arrested on 31/3/1996 and as per TIP memo Ex.P-25, the TIP of him was held on 17/5/1996. As such, there is a delay of one month and sixteen days. He further submitted that injured Kailash (PW-28) in para 1 of his deposition has admitted that he had seen the accused persons in the courts by implication in the Magisterial court and the trial court. In the aforesaid circumstances, it is most probable that the prosecution witnesses Girraj, Mintabai and Pramila had also seen appellant Heera in the courts before the TIP. In the circumstance, identification of appellant Heera by the aforesaid witnesses in the TIP and before the trial court has no evidentiary value. Thus, the learned ASJ has grossly erred in convicting appellant Heera only on the ground that he has been identified in the TIP and before the trial court by the aforesaid prosecution witnesses. Consequently, the impugned judgment is based upon erroneous appreciation of evidence on identification of appellant Heera. In support of the arguments, learned counsel placed reliance upon 14 CrA.838/2005 the decisions rendered in the cases of Bali Ahir and ors. Vs. State of Bihar, AIR 1983 SC 289, S.C. Subhash Vs. State of U.P., AIR 1987 SC 1222 and State of A.P. Vs. Dr. M.V. Ramana Reddy and ors., AIR 1991 SC 1938. Upon these submissions, he prayed to allow this appeal by setting aside the impugned judgment. Let it be noted that in the course of arguments, learned counsel for the appellant had not challenged the findings of the learned ASJ on the points that in the night of 19/1/1996 a dacoity was committed in the house of Mintabai, the complainant, that in the commission of dacoity she, Pramila, Kabulibai, Kailash and Girraj suffered injuries and that Ramesh and Kappibai were beaten to death.
8. Per contra, learned Public Prosecutor submitted that as per the evidence of prosecution witnesses namely Mintabai, Kailash, Girraj, Pramila and Guddibai, at the time of commission of dacoity in their house, an electric bulb was burning in which they had seen the dacoits. That part of their evidence has not been challenged on behalf of appellant Heera in the course of their cross- examination. Thus, the aforesaid witnesses had seen appellant Heera well at the time of commission of 15 CrA.838/2005 dacoity. He further submitted that Pramila (PW-24) has stated in para 2 of her evidence that she identified appellant Heera because of deformed fingers of one of his hands. He further submitted that as per the evidence appearing in para 6 of the cross-examination of S.S. Tomar (PW-13), who conducted the TIP, it is admitted on behalf of appellant Heera that fingers of his right hand are deformed. Therefore, the delay in holding the TIP is immaterial. He further submitted that as per TIP Memo Ex.P-25, the TIP of appellant Heera, absconding accused Mishrya and acquitted accused Chandan Singh was got held from the prosecution witnesses Girraj, Mintabai and Pramila. Thus, it is crystal clear that prosecution witness Kailash had not participated in the TIP. Therefore, the aforesaid admission made by him has no material bearing on the TIP. He further submitted that there is no evidence in the cross-examination of prosecution witnesses Girraj, Mintabai and Pramila that they had seen appellant Heera before the TIP anywhere. He further submitted that learned counsel for the appellant has failed to elicit any evidence impeaching the trustworthiness and truthfulness of the evidence of 16 CrA.838/2005 prosecution witnesses Girraj, Mintabai, Pramila and S.S. Tomar. On the basis of the aforesaid submissions, he justified the conviction of appellant Heera solely on the basis of his identification by the aforesaid prosecution witnesses in the TIP and before the trial court and prayed to dismiss this appeal being devoid of merits and substance by upholding the order of conviction and sentence passed against appellant Heera.
9. We have given our full consideration to the rival submissions made by learned counsel for the parties at the Bar and perused the impugned judgment and entire material on record.
10. In the light of arguments canvassed by learned counsel for the parties, the only point for our consideration is whether the order of conviction of appellant Heera is justifiable that he had been identified by the prosecution witnesses namely Girraj, Mintabai, and Pramila in the TIP and before the trial court.
11. It is well settled in law that the identification of an accused in the test identification parade is a primary evidence and the substantive evidence of identification of an accused by a witness is before the trial court, and the 17 CrA.838/2005 evidence of a witness on the point of identification cannot be disbelieved because of non-holding of test identification parade if the evidence of the witness on the point of identification is found to be trustworthy and without any ill motive. In this connection, a reference may be made to the decisions rendered by the Supreme Court in the cases of Jadunath and Ors. Vs. State of U.P., AIR 1971 SCC 363, Daya Singh Vs. State of Haryana, (2001) 3 SCC 468, Dana Yadav Vs. State of Bihar, (2002) 7 SCC 295, State of Rajasthan Vs. Daud Khan (2016) 2 SCC 607 and Noor Mohammad and Ors. Vs. State of Karnataka, (2016) 3 SCC 325.
12. From the perusal of evidence of complainant Mintabai (PW-12) appearing in her examination-in-chief, we find that she has completely corroborated the contents of FIR Ex.P-24, which is lodged by her. She has also stated that she identified appellant Heera and absconding accused Mishrya amongst other persons in the TIP being held at Guna jail. Upon the perusal of her cross-examination, we find that learned counsel for appellant Heera has failed to impeach her evidence on the point of identification of him by her. 18 CrA.838/2005
13. From the meticulous reading of evidence of Pramila (PW-24) appearing in her examination-in-chief, we find that there is a consistency amongst her evidence, the FIR and evidence of Mintabai on material particulars. She has stated in para 2 of her evidence that she had identified appellant Heera on the ground of deformities in the fingers of one of his hands. Upon the perusal of her cross-examination, we find that the fact of deformities in the fingers of one the hands of appellant Heera is not contradicted on his behalf and that she was subjected to grueling and searching cross-examination especially upon her identification of appellant Heera. But, there is nothing in her cross-examination to doubt the identification of appellant Heera by her.
14. Girraj (PW-29) has deposed that at the time of commission of dacoity in his house, an electric bulb was burning on account of which he had seen very well all the dacoits who committed the dacoity. On the basis of which, he identified appellant Heera in the course of TIP. We find that there is nothing in his cross-examination to discredit his evidence on the identification of appellant Heera by him in the course of TIP and before the trial 19 CrA.838/2005 court.
15. S.S. Tomar (PW-13) has testified in his evidence that on 17/5/1996 in Guna jail, he conducted the TIP of appellant Heera, absconding accused Mishrya and acquitted accused Chandan Singh by mixing them with twelve jail inmates whose physical appearances were similar to them. In the course of which, prosecution witnesses Girraj and Mintabai identified appellant Heera and Mishrya correctly whereas prosecution witness Pramila had identified only appellant Heera. He also testified that in the course of TIP, he had taken the precautions as mentioned in Test Identification Memo Ex.P-25 prepared by him. Upon minutely perusal of his cross-examination, we find that there is no evidence to the effect that he committed any material lapses in the TIP, therefore, his evidence cannot be disbelieved.
16. On the basis of the aforesaid close scrutiny of evidence of prosecution witnesses Girraj, Mintabai, Pramila and S.S. Tomar, we hold that their evidence is fully reliable and inspiring. At this junction, it is appropriate to state that before placing implicit reliance upon the testimonies of the above named prosecution 20 CrA.838/2005 witnesses and the TIP, we have perused all the rulings, which are mentioned in para 7 of this judgment, upon which learned counsel for appellant Heera had placed reliance. Upon the perusal, we have found that the Supreme Court did not disbelieve the TIPs being held in the cases only on the ground of delay but on cogent reasons and inherent flaws in conducting TIPs which we have not found in the case in hand. Therefore, the ratio of these rulings are not applicable in the instant case. Consequently, we hold that the learned Judge has rightly convicted appellant Heera on the ground that he had been identified in the TIP and before the trial court by prosecution witnesses Girraj, Mintabai and Pramila. Therefore, his participation in the dacoity is proved beyond reasonable doubt.
17. We find that the default jail sentences imposed upon appellant Heera under Sections 395 and 396 IPC by the learned ASJ are highly excessive vis-a-vis fine amounts. Therefore, we reduce the default jail sentence under Section 395 IPC from a period of two years to one month and under Section 396 IPC for each of the two counts from a period of two years to one month. 21 CrA.838/2005
18. For the foregoing reasons and discussion, we do not find any significant infirmity on law and facts in the impugned judgment passed against appellant Heera except that the default jail sentences are highly excessive, which we have appropriately reduced. With the reduction in default jail sentences as per the preceding para, we dismiss this appeal.
19. Accordingly, this appeal is finally disposed of in the aforesaid terms.
(Rajendra Mahajan) (Anand Pathak)
Judge Judge
AKS
Digitally signed by ALOK
KUMAR
Date: 2018.02.22 15:31:25
+05'30'