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Madhya Pradesh High Court

Dharmendra Singh & Ors. vs The State Of M.P on 3 April, 2012

Author: Tarun Kumar Kaushal

Bench: Tarun Kumar Kaushal

                                1
                                                Cr. Appeal. No.1586/1996

       HIGH COURT OF MADHYA PRADESH : JABALPUR
            BEFORE : TARUN KUMAR KAUSHAL, J.

             CRIMINAL APPEAL NO. 1586 OF 1996


APPELLANTS           Dharmendra Singh and others.

                               Versus
RESPONDENT:           The State of Madhya Pradesh


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For Appellants        :    Shri P.R. Bhave, Senior Advocate
                           with Shri Bhanu Yadav.
For Respondent        :    Shri R.K. Kesharwani, P.L.
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                         JUDGMENT

03/04/2012 This appeal has been preferred against the judgment dated 10.9.1996 passed by First Additional Sessions Judge, Sidhi in Sessions Trial No.68/1992 convicting the appellants under Section 399 IPC and sentenced to five years R.I. and with fine of Rs.500/- and further convicted under Section 402 IPC and sentenced to four years R.I. and with fine of Rsw.500/-

2. Facts of the case, in short, are that on 4.6.1992 at about 8:00 p.m. near Nigahi Nursery of National Coal Limited, Singrauli, appellants and absconded co-accused were standing on a cross road (Tiraha) and discussing some planning. On receiving information from informer, Shri S.P. Singh, Station House Officer, Waidhan (PW/3) alongwith his police party and witnesses reached on the spot and overheard the conversation of appellants regarding their plan to commit a dacoity in National Coal Limited stores. After preparing two police parties, having accompanied with two witnesses including Nageshwar Singh (PW/1), police apprehended the appellants.

Dehati Nalishi Ex.P/8 at Crime No.0/92 under Section 399/402 IPC and under Section 25 & 27 of the Arms Act was registered against the appellants. On the basis of which FIR Ex. P/10 was registered at Crime No.142/92 at Police Station Waidhan(Singrauli). During investigation, accused persons were arrested. A desi katta and live cartridge has recovered from absconded co-accused Anulamiya, a ballam and torch was recovered from the possession of appellants Dharmendra, Gahdasas was recovered from the possession of appellant Santosh and Anil Singh and an iron rod (tangi) from the possession of appellant Gopal Krishna was recovered.

3. After completing the investigation, police submitted a charge-sheet before the Court of concerned Magistrate. Case was committed to the Court of Sessions for trial. Trial Court framed charges under Sections 399 and 402 IPC against the appellants. Appellants abjured the guilt. Defence of the appellants was that of false implication.

4. To substantiate the case of the prosecution, statements of Nageshwar (PW/1), Surajdeen, Head Constable (PW/2) and S.P. Singh, Station House Incharge, Waidhan (PW/3) were recorded. During the trial, one of the accused Anulamiya has absconded. After appreciating the aforesaid evidence, trial court convicted present appellants under Sections 399 and 402 IPC and sentenced them as above.

5. Challenging the impugned judgment, this appeal has been preferred on the grounds that appreciation of evidence is not proper. Evidence of Nageshwar (PW/1) is suffering from contradictions and omissions. He is not a reliable witness. Similarly, the evidence of S.P. Singh, Station House Officer (PW/

3) is also insufficient for holding the appellants guilty for the offences. Conviction is bad in law and sentence is harsh.

6. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both.

7. From perusal of evidence of Nageshwar (PW/1), it is revealed that he was an employee of NCL and by chance heard a conversation of the persons who were standing on the cross road at about 8:00 p.m. In para 11 of his cross-examination, he has stated that he had heard conversation of the appellants from a distance of about 40-50 yards. While accused persons were apprehended by the police, PW/1 was not present on the spot rather he was working in the stores. In para 9, he has stated that he did not know about the appellants earlier and he saw them for the first time in the police station at about 11:00 p.m. He could depose the names of two accused persons only in the Court. He identified only two accused namely Dharmendra and Krishna Gopal. S.P. Singh (PW/3) stated that he has apprehended and arrested the appellant and made seizure memo of the weapon recovered from them. Though PW/3 reached on the spot alongwith about ten police officers but none of them was produced in evidence by prosecution. Fact of overhearing the conversation of appellants by him cannot be found proved on the basis of his sole testimony. Evidence of Nageshwar (PW/1) is not reliable.

8. It is submitted by Penal Lawyer that evidence of S.P. Singh (PW/3) is not controverted by the appellants in cross- examination in effective manner, hence whatever has been stated by him in his evidence proves to be unrebuted and is sufficient for establishing the fact of assembly of appellants for preparation of dacoity.

9. Learned counsel for the appellant has placed reliance on 4 Cr. Appeal. No.1586/1996 1979 Cr. L.J. 1090 (Chaturi Yadav and others vs. State of Bihar) has submitted that at about 8:00 p.m. on a road mere assembly of persons is not indicative of the fact of preparation of dacoity. Gathering of persons is not sufficient to prove that they were assembled for planning and preparation of dacoity.

10. In my considered opinion, sole testimony of PW/3 is not sufficient to prove the fact of preparation of dacoity by the appellants. Evidence of Nageshwar (PW/3) is not sufficient and reliable on the point. No sufficient evidence has been collected and produced by the prosecution in trial Court to prove the fact that appellants assembled for the purpose of preparation and planning of dacoity. Trial Court has failed to appreciate the evidence in right perspective. Prosecution has failed to prove the fact of assembly of appellants for the purpose of planning and preparation of dacoity and; therefore, charges under Sections 399 and 402 IPC cannot be found to be proved.

11. As discussed above, charges under Section 399 and 402 IPC deserves to be and are hereby set aside. Appellants are acquitted of the charges. Appeal is allowed. Bail bonds are discharged.

(Tarun Kumar Kaushal) Judge YS/