Madhya Pradesh High Court
Ashish @ Ashu vs State Of M.P. on 7 October, 2017
1 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR
(Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P.
and Ashish alias Ashu Vs. State of M.P.)
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.88/2012
.........Appellant: Tilak Singh
Versus
.......Respondent : The State of M.P.
Criminal Appeal No.91/2012
.........Appellant: Dhruvpratap Singh alias Sonu
Versus
.......Respondent : The State of M.P.
&
Criminal Appeal No.248/2012
.........Appellant: Ashish alias Ashu
Versus
.......Respondent : The State of M.P.
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Shri Rajmani Bansal, Advocate for appellant-Tilak Singh.
Shri A.K. Jain, Advocate for appellants-Dhruvpratap Singh alias
Sonu and Ashish alias Ashu.
Shri RVS Ghuraiya, Public Prosecutor for respondent/State.
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JUDGMENT
(7/10/2017) Per Justice G.S. Ahluwalia This judgment shall dispose of Criminal Appeal No.88/2012 filed by appellant-Tilak Singh, Criminal Appeal No.91/2012 filed by appellant-Dhruvpratap Singh alias Sonu and Criminal Appeal No.248/2012 filed by appellant-Ashish alias Ashu.
2. These Criminal Appeals under Section 374 of Cr.P.C. have been filed against the judgment dated 30/12/2011 passed by the Special Judge (MPDVPK, Act) Datia in Special Sessions Trial No.31/2010 by which the appellants Ashish and Tilak Singh have 2 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) been convicted under Section 394 read with Section 397 of IPC and under Section 13 of the MPDVPK, Act and Section 25 (1) (1- B) (A) and 27 of the Arms Act and the appellant-Dhruvpratap Singh alias Sony has been convicted under Section 394 read with Section 13 of the MPDVPK, Act. The appellants Ashish and Tilak Singh have been sentenced to undergo rigorous imprisonment of 10 years for offence under Section 394 read with Section 397 of IPC and fine of Rs.5,000/- each with default imprisonment, Rigorous imprisonment of 2 years for offence under Section 25 (1) (1-B) (A) of the Arms Act and fine of Rs.1,000/- each with default imprisonment and rigorous imprisonment of 3 years and fine of Rs.1,000/- with default imprisonment for offence under Section 27 of the Arms Act and the appellant-Dhruvpratap Singh has been sentenced to undergo rigorous imprisonment of 10 years for offence under Section 394 of IPC and fine of Rs.5,000/- with default imprisonment.
3. The necessary facts for the disposal of the present appeals in short are that the Dehatinalishi was lodged by the complainant- Ramsevak on 29/3/2010 at about 19:30 hours on the allegation that he is the resident of Bundela Colony, Datia and is working as an Accountant in the shop of Lakhkha Seth. Today he alongwith Balvan Yadav had withdrawn Rs.6,00,000/- from the State Bank of Indore Branch Datia and was going towards Krishi Mandi. Balvan was driving the motorcycle and he was sitting behind him and had money with him. The moment they reached near Bhairo Mandir, one motorcycle of red colour on which three miscreants were riding came from behind and fired on him, as a result of which, he sustained injury on his left shoulder and fell down from the motorcycle and ran towards the shop of cold drinks situated in front of Bhairo Mandir and again one gunshot was fired by the miscreants and they snatched the bag containing money and thereafter all the miscreants escaped on the motorcycle. He was 3 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) taken to the hospital and he can identify the accused persons. On this Dehalitnalishi, which was lodged in the District Hospital, Datia, the police registered the FIR. The accused persons were arrested. They were put for test identification parade and they were identified by the complainant. The money and the bag were seized. The bag was identified by the complainant. The police after completing the investigation, filed the charge-sheet for offence under Sections 394, 397 and 120-B of IPC.
4. The trial court by order dated 20/8/2010 framed charges under Section 394 of IPC read with Section 13 of the MPDVPK, Act, under Section 397 of IPC read with Section 13 of the MPDVPK, Act and under Section 25/27 of the Arms Act.
5. The appellants abjured their guilt and pleaded not guilty.
6. The trial court by judgment dated 30/12/2011 passed in Special Sessions Trial No.31/2010 convicted the appellants for the offence mentioned above and acquitted the accused No.4- Omnarayan of all the charges. As the acquittal of Omnarayan has not been challenged by the State Government, therefore, the case shall be considered only in respect of the present appellants.
7. It is submitted by the counsel for the appellants that the test identification parade was conducted by the police belatedly and there is no evidence available on record that the complainant had no opportunity to see the appellants after the incident and prior to holding the test identification parade. No explanation for delay in holding the test identification parade has been given. The evidence of Pratap Singh (PW-5) and Santosh Purohit (PW-6) is not reliable. Similarly the evidence of Ramsevak is not sufficient to convict the appellants. From the evidence, it is clear that it is the appellant-Ashish, who had fired on the complainant, therefore, the other appellants cannot be convicted under Section 397 of IPC. In the present case, as the number of miscreants were less than 5, therefore, no offence for dacoity is made out. It is further 4 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) submitted that the incident is alleged to have taken place in the year 2010 and 7 long years have passed. Therefore, the period already undergone is sufficient to meet the ends of justice.
8. Per contra, it is submitted by the State counsel that the report was lodged promptly. The complainant had specifically stated that he can identify the assailants. The test identification parade was conducted in which all the appellants were identified by the complainant. Money has been recovered from the possession of the appellants for which no explanation has been given as to how they came in possession of such a huge amount. It is further submitted that as the incident took place in the public place on the road in the mid of the market and the manner in which the offence was committed, clearly shows that the appellants were aware of the fact that the complainant had withdrawn a huge amount of Rs.6,00,000/- and, therefore, the period of jail sentence already undergone by the appellants cannot be said to be sufficient to meet the ends of justice.
9. Heard the learned counsel for the parties.
10. The prosecution in order to prove its case has examined complainant-Ramsevak (PW-1), Balvan Singh (PW-2), Ashish Shrivastava (PW-3), Rajendra Sharma (PW-4), Pratap Singh (PW-5), Santosh Purohit (PW-6), Mahendra Singh Balmiki (PW-
7), Shiv Govind Chaubey (PW-8), Rahul Pandey (PW-9), Brijmohan Gupta (PW-10), Suresh Singh Parihar (PW-11), Arjundas (PW-12), Manendra Singh Bundela (PW-13), Smt. Manish Kaul (PW-14), Vinod Bansal (PW-15), Satish Dubey (PW-
16), Megh Singh Jat (PW-17), Dr. T.C. Agrawal (PW-18) and Dr. Naveen Kumar Nagar (PW-19).
11. The appellants did not examine any witness in their defence.
12. Dr. Naveen Kumar Nagar (PW-19) has stated that on 29/3/2010 the injured-Ramsevak was brought to the District Hospital at about 16:35 hours and on medical examination, he 5 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) had found an entry wound below the scapula of left shoulder and blackening and charing in round shape. An exit wound was found on left side of chest near armpit. The nature of the injury was dangerous to life. The MLC report is Ex.P/24. This witness was cross-examined, who has stated that as the blackening and charring was found and gun powder was found on the shirt and banyan of the injured, therefore, it was clear that the gunshot was fired from a distance of about 5 ft. The corresponding gunshot mark was found on the shirt and banyan of the injured. The cloths of the injured were sent for chemical examination and they were sealed and handed over to the police. Although the injured was in a serious condition, but he was responding. In further cross- examination this witness has stated that the injured has sustained injury due to a bullet and not pallets. The injured was brought by a police constable. The injured was referred to medical hospital, Gwalior.
13. Dr. T.C. Agrawal (PW-18) has stated that he had examined the injured on 29/3/2010 at Sahara Hospital, Gwalior. He was admitted in the ICU. His condition was stable, but he was having some breathing troubles. Case-sheet of the injured is Ex.P/22. On 31/3/2010 the injured got himself discharged against the medical advice. The discharge ticket is Ex.P/23. In cross-examination, this witness has admitted that blood was not being given to the injured at the time of discharge. Even oxygen was not being given. He had personally seen the injuries. Blackening was found around the entry wound. This witness denied the suggestion there was only entry would, but stated that exit wound was also found. At the time of admission the condition of the injured was serious. There was no pallet injury on the body of the injured. This witness has further stated that he had examined the injured only after he was admitted in the hospital, but prior to that he had not seen the injured.
6 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.)
14. Thus, from the evidence of Dr. Naveen Kumar Nagar (PW-
19) and Dr. T.C. Agrawal (PW-18), it is clear that the complainant had sustained one gunshot injury and the bullet had passed through and through, therefore, the exit wound was also found. According to the doctors, the gunshot was fired from a distance of about 5 ft.
15. The next moot question for determination is that:-
Whether the appellants have committed the offence as alleged against them or not?
16. The prosecution case is based on the direct evidence of the injured-Ramsevak and the independent witnesses Balvan Singh (PW-2), Ashish Shrivastava (PW-3), Rajendra Sharma (PW-4), Pratap Singh (PW-5) and Santosh Purohit (PW-6). Ashish Shrivastava (PW-3) and Rajendra Sharma (PW-4) have turned hostile and they have not supported the prosecution case, therefore, the entire case is based on the testimony of Ramsevak (PW-1), Balvan Singh (PW-2), Pratap Singh (PW-5) and Santosh Purohit (PW-6).
17. Ramsevak (PW-1) has stated that he is working as an Accountant under Lakkha Tilwani. On 29/3/2010 at about 4 PM he alongwith Balvan Yadav, after withdrawing an amount of Rs.6,00,000/- from the State Bank of Indore, was going towards the Mandi. Balvan was driving the motorcycle and he was sitting behind him and was carrying the bag containing the amount. The moment the motorcycle reached near Bhairo Mandir, at that time three persons came on a motorcycle of red colour and one person fired at him and the bullet hit on the left side of his back, as a result of which he fell down. Thereafter, he ran towards the cold drink shop situated in front of Bhairo Temple alongwith the bag. While he was trying to climb the stairs, at that time all the accused persons came there. One more gunshot was fired, which hit the wall and they snatched away the bag. The complainant-Ramsevak 7 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) (PW-1) identified all the three appellants, however, did not identify the accused No.4-Omnarayan. It was further stated that the appellants thereafter went towards Rajgarh square on the motorcycle and he was taken to the District Hospital by Balvan and other persons. From District Hospital, Datia he was referred to Hospital at Gwalior. He lodged the Dehatinalishi, which is Ex.P/1. The bag in which the money was kept was got identified from him and he had identified the bag and money. The identification memo was prepared by a Counselor, which is Ex.P/2, and bears his signature from A to A. The appellants were got identified by the Tahsildar in the Circle Jail, Datia and he had identified all the three appellants. The Tahsildar had prepared the identification memo, which is Ex.P/3. The complainant has identified the bag in the Court, which is marked as article A. This witness was cross-examined in detail and in cross-examination he has clarified that he had seen the faces of the appellants at the time of incident. He further admitted the suggestion that he had never seen the appellant-Tilak Singh prior to the date of incident. He further clarified that after the incident, he had seen the appellant-Tilak Singh for the first time in jail and not in the Court. He had seen the face of the appellant-Tilak, but he did not know his name and, therefore, he has not mentioned his name in the FIR. He further clarified that he has mentioned in the FIR that he can identify the miscreants. This witness further denied the suggestion that when he reached Datia Hospital, he had fallen unconscious. He further denied that he sustained gunshot while he was trying to run away, but once again clarified that when he was sitting behind the motorcycle at that time he had sustained the gunshot injury. He could not identify the colour of the cloths, which the accused persons were wearing, but this witness has specifically clarified that he had seen their faces and denied the suggestion that the accused persons had covered their face. This 8 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) witness has further clarified that as the gunshot was fired from behind, therefore, he could not see from which distance the gunshot was fired. The incident had taken place at a public place. There are some shops on either side of the road, but there was not much traffic because it was the time of afternoon the test identification parade was conducted on 31/5/2010. Although he could not point any specific mark of identification, but clarified that he can identify any person after seeing him even for once. He had identified the appellant from their faces in the test identification parade. He had seen the appellants for the first time at the time of incident and thereafter he had seen them in the jail and thereafter he is seeing them in the Court. The test identification parade was conducted in three parts. The test identification parade was conducted by the Tahsildar, who was a lady and at the time of test identification parade the police personnel were not present. Total two gunshots were fired on the spot. His statement was recorded by the police on the very same day. In the Dehatinalishi as well as in his statement he had not named the miscreants, but had clarified that he can identify them. He further denied that he had any enmity with appellant-Tilak. He further clarified that as the word "Reebok" was written on the bag and the colour of the bag was brown and since he was using the same, therefore, he had identified the same. He further denied the fact that the miscreants have not committed any offence and they have been falsely implicated. In further cross-examination this witness has stated that he went to the bank at about 3 PM after the lunch hours and he had taken about 30-45 minutes for reaching the bank. The firm has a bank account in the bank and he is the Accountant in the firm. The bank account number of the firm is 6302944993 and he had not taken the passbook with him, but he had taken a cheque. He denied that no offence was committed. As the counsel for the accused was repeating the same questions, therefore, he was 9 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) suggested not to put the same questions again and again. It was clarified by this witness that as soon as he sustained the gunshot injury on his back, he had seen the appellants, as by that time all the three accused persons had come near to him. The person who was sitting behind the motorcycle had fired the gunshot because he had seen a country made pistol in his hand. He had received a notice from the Police Station Kotwali for visiting jail for identification of the accused. He was never informed by the police that the accused persons have been arrested. He had never gone to the police station, therefore, the question of showing photographs by the police did not arise. He did not know the accused persons prior to the date of the incident.
18. The evidence of Balvan Singh (PW-2) is also on the similar lines. He has also stated that on 29/3/2010 he alongwith the complainant-Ramsevak (PW-1) had gone to the State Bank of Indore, Branch Datia for withdrawing the amount and amount of Rs.6,00,000/- was withdrawn, which were kept in a bag and at about 3:45 PM, he alongwith the complainant-Ramsevak (PW-1) were going back to the Mandi and he was driving the motorcycle and Ramsevak (PW-1) was sitting behind him and was holding the bag containing the amount. The moment they reached near the Bhairo Temple, three persons who were riding on the red coloured motorcycle, came and after looking at the appellants, this witness stated that except Omnarayan, remaining three appellants had come on the motorcycle. The gunshot was fired from behind, as a result of which, the complainant-Ramsevak fell down and in injured condition he ran towards a shop situated in front of Bhairo Mandir. The second gunshot was fired, which hit on the wall of the shop and the miscreants snatched away the bag and went towards Rajgarh Tek and left an empty bag on the spot. Thereafter, he informed his master and Brijmohan and took the complainant to District Hospital, Datia for treatment from where he 10 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) came back to the spot. The first gunshot was fired by appellant- Ashish and the second gunshot was fired by appellant-Tilak, which hit on the wall. The spot map was prepared, which is Ex.P/4. One empty cartridge, one fired bullet and one empty bag, which was lying on the spot was seized by the police vide seizure memo Ex.P/5 and the police had recorded the statement. In cross-examination, this witness has admitted that at present he is confined in jail and he has come from the jail itself. He further stated that at Datia Hospital at about 4 PM, report was lodged. He was brought back by the police to the spot, whereas Ramsevak was taken to Gwalior. One empty cartridge was found inside the shop, whereas another was found outside the shop. He further admitted that at present he is in jail in connection with an offence under Section 302 of IPC. He further admitted that in his case diary statement, Ex.D/1, it is not mentioned that the first gunshot was fired by appellant-Ashish and the second gunshot was fired by appellant-Tilak. He also admitted that in his case diary statement, Ex.D/1, it was not mentioned that he can identify the accused persons.
19. Pratap Singh (PW-5) and Santosh Purohit (PW-6) are independent witnesses.
20. Pratap Singh (PW-5) has stated that at about 4 PM after finishing his work, when he was coming back to his house from Mandi and when he reached near Rajgarh Tek near Bhairo Temple, he saw that Accountant of Lakkha was coming from Tikaliya Bazar and was going towards Mandi and the motorcycle was being driven by Balvan and the complainant was sitting behind him. It is further stated that at that time one motorcycle came from behind, which was being driven by the appellant-Sonu. Tilak Singh was sitting in between and Ashish Sharma was sitting behind. Ashish Sharma took out a country made pistol and fired at complainant from behind. The bullet hit the complainant. The 11 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) complainant ran towards a shop and at that time second gunshot was fired by Ashish. The accused persons snatched the bag from complainant-Ramsevak and went towards Rajgarh Tek on the motorcycle. In cross-examination this witness has denied that he is the partner of Lakkha or he is his friend. He had seen the incident, but thereafter he had went away. About 10 minutes thereafter all the businessmen had gone to Gwalior and he too went to the hospital at Gwalior alongwith them. His statement was recorded on the next date of the incident. He denied that his statement was recorded after six days of the incident. He could not tell the distance of the place of incident from Mandi, as he had never measured the same. He further stated that Mandi might be situated at a distance of 2-3 Km. from his house. He further admitted that neither his house nor his shop is situated near the incident. He further admitted that it is a public way. However, stated that when the gunshots are being fired, then nobody would stop. He further stated that when the gunshots were fired, all the persons who were present there had left the place of incident, but he stayed back because the injured was Accountant in the Mandi. After sustaining the gunshot injury the Accountant had run towards the shop, however, he could not verify the colour of the cloths, which the injured was wearing. Gunshot was fired from behind, but was not fired from a shot distance. He could not see that where the empty cartridge had fallen, but clarified that when the gunshots are being fired, then nobody would look for the empty cartridge. He further stated that he has no relations with the appellant, but clarified that as the appellants used to move around in the area, therefore, he knew them. He further admitted that Police Station Kotwali is in between the place of incident and his house. He did not know the names of the accused persons, but he had come to know about their names on the next date of the incident. He did not went to the Police Station Kotwali on his own 12 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) after the incident. He had informed the police that the gunshot was fired from behind, however, could not clarify the reason of not mentioning the same in his case diary statement. He further admitted that he had informed Lakkha Seth about the incident, which took place with his Accountant. He further admitted that at present Lakkha Seth is the Vice President, Municipal Council, Datia.
21. Evidence of Santosh Purohit (PW-6) is similar to that of the evidence of Pratap Singh (PW-5). In his cross-examination he admitted that Lakkha Seth is also a Grain Merchant and he has business relations with him and both of them are on visiting terms. He further submitted that as he is a businessman, therefore, he was knowing the Accountant of Lakkha Seth. He further stated that he had seen the appellants Sonu and Ashish on the date of the incident. As his motorcycle was behind the motorcycle of the appellants and as he was frightened, therefore, he did not inform Lakkha Seth about the incident and went to his house directly. He had talked with Lakkha Seth on the next date of the incident. The police had recorded his statement about 5-6 days of the incident. Ashish was having a country made pistol in his hand and had fired at Ramsevak from behind. He further admitted that he did not take the complainant to the hospital and did not had any talk with the complainant during the incident. He further clarified that in fact he had gone directly to his house. He had seen the appellants roaming around in the Mandi area. Shops are situated on the either side of the road. He further clarified that he could not say that whether any other person had seen the incident or not. After the incident the people had stated running from here to there. Total two gunshots were fired. The accused-Omnarayan was neither present on the spot nor he had committed any offence.
22. Mahendra Singh Balmiki (PW-7) has stated that on 24/4/2010 the appellant-Ashish Sharma had disclosed in his 13 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) confessional statement that an amount of Rs.1,00,000/-, one country made pistol, one round and one bag has been kept by him in a room where he is residing and the confessional statement is Ex.P/7. On the same day the police has seized an amount of Rs.1,00,000/-, one 315 bore country made pistol, one 315 bore live cartridge and one rexine bag of brown colour vide seizure memo Ex.P/8. Similarly the appellant-Dhruvpratap Singh alias Sonu has disclosed in his confessional statement that he has kept an amount of Rs.1,00,000/- in the basement of his house and the motorcycle is kept in his house. The memorandum is Ex.P/9. On the same day, an amount of Rs.1,00,000/-, a motorcycle was seized by the police at the instance of appellant-Sonu alias Dhruvpratap vide seizure memo Ex.P/10. In cross-examination he has stated that he is a labourer by profession. On 23/4/2017 he had gone to do labour works, as he was called by Ghansu Kushwaha. He was called by the police personnel and the proceedings were done in his presence. This witness further denied the suggestion that he has simply signed the documents. He further specifically stated that the confessional statements were made by the appellants in his presence. He know the appellant-Ashish by his name because of his house is situated in Mandi, however, he had never talked with the appellants and had never gone to their house. His signature for the first time was obtained when the confessional statement was made and the signature was obtained for the second time when the seizure was made. He has further stated that a petrol pump is situated at some distance from the house of Sonu Bundela, however, he could not name the owner of the petrol pump. The house of Sonu Bundela is single storey house and has a basement. He does not know whether some more persons are also residing in the said house or not. He denied that he had not gone to village Sakrar. He further denied that nothing was seized from the appellants in his 14 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) presence. He further denied that he had signed the documents merely on the saying of the appellants. He further denied that Lakkha Seth is the Counselor of his ward. He further denied that he is engaged in selling liquor of Lakkha. He on his own clarified that once Lakkha has no liquor contract, then selling of liquor does not arise. Only 2-4 houses are situated in village Sakrar from where seizure were made.
23. Shiv Govind Chaubey (PW-8) has stated that the Town Inspector had interrogated the appellant-Tilak in his presence, who had disclosed that he has kept Rs.50,000/-, a country made pistol and a mobile in his house and he had also informed that he has already spent an amount of Rs.50,000/-. The confessional statement is Ex.P/11. In cross-examination this witness admitted that he is subordinate to the Town Inspector. At the time of recording of confessional statement he and Shivkumar were present, who is also an employee in the Police Department. He denied that no confessional statement was made by appellant Tilak Singh.
24. Rahul Pandey (PW-9) has turned hostile and did not support the prosecution case.
25. Brijmohan Gupta (PW-10) has stated that one empty cartridge of 315 bore was seized by the police from the place of incident. One 315 bore which was stuck in the wall of the shop of cold drink belonging to Ashok Shrivastava and one bag was seized by the police from the spot vide seizure memo Ex.P/5. On 17/4/2010 the police had seized an amount of Rs.50,000/- on the production of the same by the appellant-Tilak from his house apart from one Nokia mobile, a 315 bore country made pistol and 2 rounds of 315 bore vide seizure memo Ex.P/14. In cross- examination, this witness has stated that he knows the appellant- Tilak Singh. He further clarified that there is no specific identification mark on the seized currency notes. He further 15 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) admitted that he has a licence for carrying out the business of Grain Merchant in Mandi. He further clarified that the mobile was of Nokia company.
26. Suresh Singh Parihar (PW-11) is the Armorer, who had examined the country made pistols and 3 live round of 315 bore seized from the possession of Ashish and Tilak. They were found in working condition. His report is Ex.P/15. In cross-examination this witness has stated that the weapons were sealed in different bags.
27. Arjundas (PW-12) has conducted the test identification parade of the bag. He has stated that he is the Counselor in the Municipal Council and had conducted the test identification parade of the bag and the complainant-Ramsevak (PW-2) had identified the bag and the identification memo is Ex.P/2. In cross- examination he admitted that Reebok was written only on the one bag and on the remaining bags nothing was written. The identification memo was prepared by the police personnel and he had merely signed the same.
28. Manendra Singh Bundela (PW-13) has also proved the seizure of Rs.50,000/-, one mobile of Nokia company, one 315 bore country made pistol and 2 rounds of 315 bore from the possession of Tilak Singh vide seizure memo, Ex.P/14.
29. Smt. Manish Kaul (PW-14) had conducted the test identification parade of accused persons. She has stated that on 31/5/2010 she was posted on the post of Naib Tahsildar Office Datia. On the said date, she had conducted the test identification parade of appellants in Circule Jail, Datia, at about 12 PM. Five persons were mixed with each of the appellants and all the three appellants were identified by the complainant by putting his hand on their head. Sufficient light was available at the time of test identification parade and body of the persons were covered with the blanket upto their shoulder and no police person was present 16 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) and the identification memo was prepared on the spot, which is Ex.P/3 and which was signed by complainant-Ramsevak also. In cross-examination she had stated that though she had conducted the test identification parade under the orders of the Tahsildar, but the said order was not annexed alongwith the test identification memo and as it is never done so. She further denied that the complainant had gone to jail alongwith her. When she reached, the complainant was already waiting outside the jail. Police had not gone to the jail alongwith her. On the identification memo neither seal of the jail was affixed nor the signatures of the Jailor were obtained because the presence of any other person at the time of test identification parade is not required. She further denied that she had not obtained the signatures of the Jailor, as she had never gone to the jail. She further stated that the test identification parade of only 3 accused persons was got done and she further denied that at the time of test identification parade only three accused persons were there. The test identification parade was conducted in a closed room, which is used for meeting purposes. The persons who were mixed with the appellants were of the same age. She further denied that she had not conducted the test identification parade and had simply signed the memo.
30. Vinod Bansal (PW-15) is working as Arms Clerk in the office of District Magistrate, who has stated that a police case diary alongwith seized weapons in sealed condition was received for the purpose of sanction for prosecution. The case diary alongwith the seized weapons were produced before the District Magistrate, who had personally seen the case diary as well as the seized weapons and thereafter dictated the order granting sanction. The order granting sanction is Ex.P/16, which was signed by the District Magistrate. In cross-examination this witness could not name the person who brought the case diary and weapons. He further stated that the weapons were sealed in one bag, whereas 17 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) the case diary was sealed in another bag. This witness further clarified that both country made pistols were sealed in different bags. He further denied that the weapons were not sealed.
31. Satish Dubey (PW-16) is the Investigating Officer. On 29/3/2010 he was posted on the post of Town Inspector, Police Station Kotwali, District Datia. On the said date he received an information that three unknown persons have fired gunshot on the complainant-Ramsevak and had looted an amount of Rs.6,00,000/- and the injured-Ramsevak has been taken to Gwalior. He directly went to Sahara Hospital, Datia from Bhind where he recorded the Dehatinalishi, which is Ex.P/1 and the said Dehatinalishi was recorded verbatim as it was narrated by the complainant. After recording the Dehatinalishi, Ex.P/1, he came back to Datia and registered the FIR against three unknown persons, which is Ex.P7. Spot map was prepared on the instructions of Balvan, which is Ex.P/4. On 6/4/2010 he had arrested Omnarayan Sahu vide arrest memo Ex.P/12. On 29/3/2010 he had seized one empty cartridge of 315 bore, which was lying on the spot, one fired bullet of 315 bore, which was lying in the shop of Ashok Shrivastava and one bag from the spot vide seizure memo Ex.P/5. The statements of the witnesses were recorded. He recorded the statements of Santosh and Pratap on 6/4/2010. On 16/4/2010 he had arrested Tilak and had recorded his confessional statement which is Ex.P/11. On 17/4/2010 he had seized the amount of Rs.50,000/- from the house of the appellant- Tilak Singh and had also seized one mobile of Nokia company, one 315 bore country made pistol and 2 rounds of 315 bore from the house of appellant-Tilak vide seizure memo Ex.P/14. On 24/4/2010 he had recorded the confessional statement of the appellant-Ashish, which is Ex.P/7. On the same date he had seized an amount of Rs.1,00,000/- as well as one 315 bore country made pistol and one live cartridge of 315 bore as well as 18 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) one empty cartridge of 315 bore, one bag of brown colour from the possession of Ashish vide seizure memo Ex.P/8. On 24/4/2010 itself he had recorded the confessional statement of appellant-Dhruvpratap, which is Ex.P/9 and had seized an amount of Rs.1,00,000/- and a motorcycle from his possession vide seizure memo Ex.P/10.
32. He sent the seized weapons and catridges to Director, F.S.L. Sagar by draft Ex. P.18 and the report is Ex. P.19. This witness was cross examined in detail, but no question was put to this witness with regard to the delay in holding the Test Identification Parade. A question was also put to this witness with regard to delayed recording of statements of Pratap Singh (P.W.5) and Santosh Purohit (P.W.6). This witness has clarified that as he was busy in other works, therefore, he could not record the statements of these witnesses at the earliest.
33. It is submitted by the Counsel for the appellants that the appellant Tilak Singh was arrested on 17-4-2010, whereas the appellants Ashish @ Ashu Sharma and Dhruv Pratap Singh were arrested on 24-4-2010 but the Test Identification Parade was conducted on 31-5-2010 and the prosecution has not explained the delay in holding the Test Identification Parade of the appellants. Further, the complainant Ramsewak (P.W.1) had full opportunity to see the appellants prior to holding of Test Identification Parade, therefore, the identification of the appellants by Ramsewak (P.W.1) is not reliable. To buttress his contentions, the Counsel for the appellants has relied upon the judgment of the Chhatisgarh High Court in the case of Asif Ahmad Vs. State of Chhatisgarh reported in 2011 Cr.L.J. 4461.
34. The submission made by the Counsel for the appellants that as the Test Identification Parade was conducted belatedly, therefore, the identification of the appellants by the complainant should be discarded, cannot be accepted and hence rejected. 19 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) Mere delay in holding the Test Identification Parade, by itself cannot be a ground to discard the identification of the accused. The Supreme Court in the case of Chandra Prakash Vs. State of Rajasthan reported in (2014) 8 SCC 340 has held as under :
33. The next issue, to which we should advert to, pertains to the delay in holding the test identification parade. The submission of Mr Balaji Srinivasan, learned counsel appearing for accused Abdul Hamid and Raies Beg, is that there has been enormous delay in conducting the test identification parade in respect of accused Abdul Hamid and Raies Beg. There is no dispute that both of them were arrested on 8-6-1997 and the test identification parade was held on 25-6-1997. Thus, it is evident that they were arrested long after the occurrence but the test identification parade was held within a period of three weeks from the date of arrest.
As the analysis of the trial court shows, they could not have been arrested as the materials could not be collected against them and things got changed at a later stage. In this regard, we may refer with profit to the decision in Ramanand Ramnath v. State of M.P., wherein identification parade was held within a period of one month from the date of arrest. This Court observed that there was no unusual delay in holding the test identification parade.
34. That apart, the witnesses, namely, Prem Prakash Gupta, PW 78, and Mohit Jain, PW 30, have identified them in the Court. In State of Maharashtra v. Suresh, it has been held as follows: (SCC p. 478, para 22) "22. ... We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
20 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.)
35. The said legal position has been reiterated in Anil Kumar v. State of U.P. Recently, in Munna Kumar Upadhyay v. State of A.P., a two-
Judge Bench has observed thus: (SCC p. 197, para 66) "66. There was some delay in holding the identification parade. But the delay per se cannot be fatal to the validity of holding an identification parade, in all cases, without exception. The purpose of the identification parade is to provide corroborative evidence and is more confirmatory in its nature. No other infirmity has been pointed out by the learned counsel appearing for the appellant, in the holding of the identification parade. The identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number of persons who had joined the identification parade."
36. In view of the aforesaid, the submission that there has been delay in holding the test identification parade does not really affect the case of the prosecution. It is also noteworthy that the witnesses had identified the accused persons in court and nothing has been elicited in the cross-examination even to create a doubt. Thus, we repel the submission advanced by the learned counsel for accused Abdul Hamid and Raies Beg.
35. The Supreme Court in the case of Sheikh Sintha Madhar Vs. State reported in (2016) 11 SCC 265 has held as under :
16. The next question is whether the test identification parades were vitiated on account of delay or for holding those TIPs jointly, or on account of the identity of the accused having been already revealed before the TIP could be conducted. It is clear from the evidence that there is no inordinate delay in conducting the TIP. As and when the accused were arrested, within reasonable time they were produced for the TIP. Also, there is no invariable rule that two accused persons cannot be made part of the same TIP. Joint TIP would thus, in no manner, affect the validity of the TIP. The purpose of a 21 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) TIP is to ensure that the investigation is going on the right track and it is merely a corroborative evidence. The actual identification must be done in the Court and that is the substantive evidence. If the accused is already known to the witness, the TIP does not hold much value and it is the identification in the Court which is of utmost importance. PW 1 identified all the seven appellant-accused in the Court as well as in the TIP.
36. The Supreme Court in the case of Mulla Vs. State of U.P. reported in (2010) 3 SCC 508 has held as under :
55. The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge:
(1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses;
(2) this condition can be revoked if proper explanation justifying the delay is provided; and (3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses.
37. In the case of Pramod Mandal v. State of Bihar reported in (2004) 13 SCC 150 the Supreme Court has held as under :
"20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact 22 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
38. In the case of Anil Kumar v. State of U.P. reported in (2003) 3 SCC 569 the Supreme Court has observed as under:
"9. ... It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given why such a small delay would be fatal."
A mere lapse of some days is not enough to erase the facial expressions of assailants from the memory of father and mother who have seen them killing their son.
39. In the case of Lal Singh v. State of U.P. reported in (2003) 12 SCC 554 , the Supreme Court has held as under :
43. It will thus be seen that the evidence of identification has to be considered in the 23 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) peculiar facts and circumstances of each case.
Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."
40. Thus, it is clear that it is desirable that the Test Identification Parade should be conducted as early as possible, however, at the same time, the very purpose of conducting Test Identification Parade during the investigation is for the satisfaction of the investigating officer that the suspect is the real culprit, but the substantive evidence is the identification of the accused in the Court. Therefore, no hard and fast rule can be laid down that in every case, where the Test Identification Parade was conducted belatedly, the identification of the accused by the victim should be discarded. If the delay in holding the Test Identification Parade is duly explained or where the delay had occurred due to reasons beyond the control of the investigation officer, then the delay in holding the Test Identification Parade may not be fatal. Thus, in nutshell, it can be said that in each and every case, the effect of delay in holding the Test Identification Parade has to be considered.
41. In the present case, the complainant Ramsewak (P.W.1) has identified the appellants in the Court. Four persons were standing in the Dock and the complainant Ramsewak (P.W.1) could not identify the accused no. 4 Om Narayan, whereas the appellants were identified. Although in the present case, the 24 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) appellants were arrested on 17-4-2010 and 24-4-2010 and the Test Identification Parade was conducted on 31-5-2010, but no suggestion was given to the Investigating Officer seeking any explanation. The Supreme Court in the case of V.K. Mishra Vs. State of Uttarakhand reported in (2015) 9 SCC 588, has observed as under :
25. It has been further contended on behalf of the appellants that there was delay in recording the statement of PW 2 by the investigating officer and therefore his evidence should be viewed with suspicion, especially when he did not disclose about the alleged dowry demand before he left for Dehradun or till his statement was recorded by the police. In this context as pointed out earlier, PW 2 went to Mumbai for treatment of his wife and on 14-8-1997 he was informed about the death of Archana and on the next day he returned to Delhi by air and from Delhi he reached Dehradun by taxi. In his evidence PW 2 stated that the police being busy in the programme of Ms Mayawati, the then Chief Minister of Uttar Pradesh on 17-8- 1997, the police did not examine and record his statement and it was only on 18-8-1997 that his statement was recorded by the investigating officer. Considering the evidence of PW 2, it cannot be said that the prosecution was deliberately taking time with a view to concoct a false case and decide about the shape to be given to the case. It is pertinent to point out that on the delayed examination of PW 2, no question was put to the investigating officer (PW 14) by the defence. Had such question been put to PW 14, he would have certainly explained the reason for not examining PW 2 from 15-8-1997 to 17-8-1997. Having not done so, the appellants are not right in contending that there was delay in recording the statement of PW 2.
26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar v. State of Rajasthan [(2005)9 25 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) SCC 283], it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW 2 and even assuming that there was delay in questioning PW 2, that by itself cannot amount to any infirmity in the prosecution case.
42. In the case of Gunnana Pentayya @ Pentadu and Ors Versus State of A. P reported in AIR 2009 SC (Supp) 940, the Supreme Court has held as under :
9. .......... Though it was raised that there was delay in examination of PW2, the same is without substance in view of what has been stated by this Court in State of U. P. v. Satish (2005 AIR SCW 905). It was observed that this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witness, the defence cannot take advantage therefrom. In the instant case, no question has been asked to the investigating officer PW53 regarding the reason for delay. There was even no suggestion that PW2 was not present in the house when the incident took place.
43. Thus, it is clear that where an explanation is not sought from the investigating officer, in holding the Test Identification Parade belatedly, then the delay in holding the Test Identification Parade, by itself may not be fatal. Further, even not a single question was put to the Investigating Officer, Satish Dubey (P.W.16) pertaining to Test Identification Parade. Not a single question was put to this witness that whether the appellants were kept with their covered faces or not? No suggestion was given that whether the complainant had ever seen the appellants prior to holding of Test Identification Parade or not? Further, in the present case, not only 26 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) the complainant Ramsewak (P.W.1) has identified the appellants in the Court, but the independent witnesses, Pratap Singh (P.W.5) and Santosh Purohit (P.W.6) have also identified the appellants in the Court. Further more, they are the eye witnesses. Although the statements of these witnesses were recorded on 6-4-2010, but the Investigating Officer, Satish Dubey (P.W.16), has given an explanation that as he was busy in other works, therefore, he could not record their statement at the earliest. Although it was expected that the Investigating Officer, should have recorded the statements of the witnesses at the earliest, but at the same time, it is also well settled principle of law that any faulty investigation cannot be a ground to discard the direct evidence. The Supreme Court in the case of Prithvi Vs. Mam Raj and others reported in AIR 2004 SC 2729 has held as under :
Unexplained delay in recording the statement may render it suspect, but the High Court cannot make a fetish out of a rule of prudence. In Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334 at 349 (para 12), this Court observed that :-
"Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the Court can act on the testimony of the witness if it is found to be cogent and credible."
44. The Supreme Court in the case of State of U.P. Vs. Jagdeo reported in (2003) 1 SCC 456 has held as under :
8. Coming to the aspect of the investigation being allegedly faulty, we would like to say that we do not agree with the view taken by the High Court. We would rather like to say that assuming the investigation was faulty, for that reason alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly 27 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) crime cannot be allowed to go scot-free.
45. Thus, this Court is of the considered opinion, that the prosecution has established beyond reasonable doubt, that the complainant Ramsewak (P.W.1), had seen the appellants at the time of the incident and has duly identified them. Similarly, it is also proved that Prashant (P.W.5) and Santosh Purohit (P.W.6) have seen the incident and had identified the appellants. Thus, it is proved that the appellants by causing gun shot injury to the complainant Ramsewak (P.W.1) from behind, had snatched the bag containing Rs. 6 lacs, from the complainant Ramsewak (P.W.1).
46. Mahendra Singh Balmik (P.W.7) has stated that the appellants Ashish and Dhruv Pratap had made confessional statements Ex. P.7 and Ex. P.9. Accordingly, an amount of Rs. 1 lacs, one Country Made Pistol of 315 bore, one live catridge and one bag was seized from the possession of Appellant Ashish vide seizure memo Ex. P.8. An amount of Rs. One lac and a motor cycle was seized from the possession of appellant Dhruv Pratap @ Sonu vide seizure memo Ex. P.10. Brijmohan Gupta (P.W.10) and Manendra Singh Bundela (P.W. 13) have proved that an amount of Rs. 50,000 apart from one 315 bore country made pistol and two rounds as well as one Nokia mobile was seized from the possession of appellant Tilak. Satish Dubey (P.W.16), the investigating officer has also proved the seizure of above mentioned articles. It is submitted by the Counsel for the appellants that in absence of any special marking on the currency notes, it cannot be said that the amount seized from the possession of the appellants Tilak, Ashish and Dhruv Pratap was the looted property and therefore, the seized money cannot be linked with the offence. It is true that in absence of any special marking on the currency notes, it may be difficult to link the seized money with the offence, but as a huge amount was seized from 28 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) the possession of the appellants, therefore, they were under obligation to prove the source of the said amount. No explanation has been given by the appellants as to how they came in possession of such a huge amount. In absence of any explanation by the appellants, it is held that the looted money was seized from the possession of the appellants.
47. Furthermore, the complainant Ramsewak (P.W.1) had stated that when he was trying to run towards a shop of cold drinks situated in front of the Bhairav Temple, another gun shot was fired, which had missed and had hit the wall of the shop. One bullet was found stuck in the wall of the shop of Ashok Shrivastava and was accordingly seized. Thus, the evidence of complainant Ramsewak (P.W.1) is corroborated by the surrounding circumstances. Further, the evidence of complainant Ramsewak (P.W.1) is corroborated by the evidence of Balwan Yadav (P.W.2).
48. It is next contended by the Counsel for the appellants that as the allegations are that the appellant Ashish had used the fire arm and the remaining two appellants namely Tilak and Dhruv Pratap were on the motor cycles and were not having any weapon in their hand, therefore, Tilak and Dhruv Pratap cannot be held guilty of offence under Section 397 of I.P.C. To buttress his contentions, the Counsel for the appellants has relied upon the judgment of Supreme Court passed in the case of Phool Kumar Vs. Delhi Administration reported in (1975) 1 SCC 797.
49. In the present case, the allegations are that three persons came on a motor cycle and the appellant Ashish fired at the complainant Ramsewak (P.W.1) twice and other two accused persons were not alleged to be carrying any weapon. There is no allegation that either Tilak or Dhruv Pratap had used any weapon or had shown any weapon in order to put the witnesses or the complainant under fear. The Trial Court has convicted the 29 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) appellant Ashish and Tilak for offence under Section 394/397 of I.P.C. As no weapon was used by the appellant Tilak therefore, he is acquitted for offence under Section 397 of I.P.C. but is convicted under Section 394 of I.P.C. simplicitor. However, Dhruv Pratap Singh has not been convicted under Section 397 of I.P.C. by the Trial Court itself.
50. It is submitted that since, only three persons or four persons (Including the acquitted accused) are alleged to have been involved in the offence, therefore, no offence of dacoity is made out. The submission made by the Counsel for the appellants is misconceived and hence rejected. The appellants have been convicted under Section 394/397 of I.P.C. Section 394 of I.P.C. deals with Voluntarily causing hurt in committing robbery whereas Section 397 of I.P.C., deals with Robbery, or dacoity, with attempt to cause death or grievous hurt. The appellants have not been convicted for committing dacoity but they have been convicted for offence under Section 394 and 397 of I.P.C. Offence under Section 397 of I.P.C. includes "Robbery" also. "Robbery" has been defined under Section 390 of I.P.C. whereas "Dacoity" has been defined under Section 391 of I.P.C.
51. So far as the recovery of Country made pistol of 315 bore and cartridges from the possession of the appellants Ashish and Tilak are concerned, the seizure of the weapons has not been challenged by the appellants. Therefore, it is held that one country made pistol of 315 bore was seized from the possession of each of appellant Ashish and Tilak and one cartridge and two cartridges of 315 bore were also seized from the possession of Tilak and Ashish respectively. The District Magistrate had granted sanction for prosecution under the Arms Act.
52. Thus, considering the facts and circumstances of the case and the evidence which has come on record, this Court is of the considered opinion that the appellant Ashish is guilty of 30 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) committing offence under Section 397 of I.P.C., whereas the appellants Dhruv Pratap Singh and Tilak are guilty of committing offence under Section 394 of I.P.C. The appellant Ashish is also held guilty of committing offence under Section 25(1)(1-B)(a) and 27 of Arms Act. There is no allegation that the appellant Tilak was either having firearm with him at the time of commission of offence or had used the same, therefore, he is acquitted of the charge under Section 27 of Arms Act.
53. Thus, the appellant Ashish is convicted under Section 397 read with Section 13 of M.P.D.V.P.K. Act as well as under Section 25(1)(1-B)(a) and 27 of Arms Act. Appellants Tilak and Dhruv are convicted under Section 394 read with Section 13 of M.P.D.V.P.K. Act. The appellant Tilak is also convicted for offence under Section 25(1)(1-B)(a) of Arms Act.
54. It is next contended by the Counsel for the appellants, that the appellants Tilak and Dhruv Pratap are on bail and they were in jail for a period of about 1 year during trial and have remained in jail for a period of about 10 months after their conviction and thus, the appellants Tilak and Dhruv Pratap have remained in jail for a period of approximately 1 year and 10 months. Similarly, the appellant Ashish was although granted bail by this Court, but it appears that he did not furnish the bail and therefore, he is still in jail. It is submitted that the period of jail sentence already undergone by the appellants would meet the ends of justice therefore, the sentence may be modified. Heard the learned Counsel for the appellants.
55. It is true that the incident took place in the year 2010, but the manner in which the offence was committed it is clear that the appellants knew that the complainant is going to withdraw a huge amount of Rs. 6 lacs and therefore, they were not only watching his movements but they chased them, fired gun shots causing injuries to the complainant Ramsewak and looted an amount of 31 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) Rs. 6 lacs, in the public place. Firing gun shots, on the road where shops are situated and persons are moving, can be safely said to be a heinous offence. Some of the looted money has also been recovered from their possession and they have failed to give any explanation as to how they came in possession of the said amount. Deterrence is one of the important aspect of the sentencing policy.
56. The Supreme Court in the case of Shyam Narain Vs. State (NCT of Delhi) reported in (2013) 7 SCC 77 has held as under :
14. Primarily it is to be borne in mind that sentencing for any offence has a social goal.
Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
15. In this context, we may refer with profit to the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to 32 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) impose a sentence commensurate with the gravity of the offence.
16. In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus: (SCC p. 362, para
7) "7. ... Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."
17. In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 241- 42, paras 23-24) "23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
24. The object of punishment has been succinctly stated in Halsbury's Laws of England (4th Edn., Vol. 11, Para 482), thus:
'482. Object of punishment.--The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these 33 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law.
The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.'"
(emphasis in original)
18. In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
19. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasised upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, 34 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
57. The Supreme Court in the case of Raj Bala Vs. State of Haryana reported in (2016) 1 SCC 463 has held as under :
4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Bablu, State of M.P. v. Surendra Singh and State of Punjab v.
Bawa Singh.
* * * * * * * *
16. A court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio- 35 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.
58. Thus, if the facts of the present case are considered, then it would be clear that the jail sentence awarded by the Trial Court does not call for any interference, and the jail sentence already undergone by the appellants would not serve the ends of justice.
59. Accordingly, the jail sentence of rigorous imprisonment of 10 years and a fine of Rs. 5000 with default imprisonment for offence under Section 397 of I.P.C. and rigorous imprisonment of 2 years and a fine of Rs. 1000 with default imprisonment for offence under Section 25(1)(1-B)(a) of Arms Act and rigorous imprisonment of 3 years and a fine of Rs. 1000 with default imprisonment as awarded by the Trial Court to appellant Ashish is hereby affirmed.
60. The jail sentence of rigorous imprisonment of 10 years and a fine of Rs. 5000 with default imprisonment for offence under Section 394 of I.P.C. and rigorous imprisonment of 2 years and a fine of Rs. 1000 with default imprisonment for offence under Section 25(1)(1-B)(a) of Arms Act, awarded by the Trial Court to the appellant Tilak is hereby affirmed.
61. The jail sentence of rigorous imprisonment of 10 years and a fine of Rs. 5000 with default imprisonment for offence under 36 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) Section 394 of I.P.C., awarded by the Trial Court to the appellant Dhruv Pratap is hereby affirmed.
62. The appellants Tilak and Dhruv Pratap are on bail. Their bail bonds and surety bonds are hereby cancelled. They are directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
63. The appellant Ashish is in jail as he had not furnished the bail in compliance of order dated 30-12-2013. The bail order dated 30-12-2013 is hereby recalled.
64. Accordingly, the judgment and sentence dated 30/12/2011 passed by Special Judge (MPDVPK, Act) Datia in Special Sessions Trial No.31/2010 is hereby affirmed to the extent mentioned above.
With aforesaid modifications, the appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* 37 Criminal Appeal Nos.88/2012, 91/2012 and 248/2012 AFR (Tilak Singh Vs. State of M.P, Dhruvpratap Singh alias Sonu Vs. State of M.P. and Ashish alias Ashu Vs. State of M.P.) 07/10/2017 Shri Rajmani Bansal, Advocate for appellant-Tilak Singh.
Shri A.K. Jain, Advocate for appellants-Dhruvpratap Singh alias Sonu and Ashish alias Ashu.
Shri RVS Ghuraiya, Public Prosecutor for
respondent/State.
Arguments heard.
Judgment is dictated, signed and dated on separate sheets.
(G.S. AHLUWALIA) Judge Arun*