Madhya Pradesh High Court
Kailash Dheemar vs State Of M.P. on 6 January, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
HIGH COURT OF MADHYA PARADESH
BENCH GWALIOR
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava
CRA 275 of 2008
Ramhet vs. State of MP
CRA 324 of 2008
Imrat Dheemar vs. State of MP
CRA 359 of 2008
Kailash Dheemar vs. State of MP
&
CRA 404 of 2008
Badri Prasad vs. State of MP
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Ms. Kalpana Parmar, counsel for appellants Ramhet & Imrat Dheemer in
CRA No.275 of 2008 & CRA. No. 324 of 2008.
Shri SS Kushwah, counsel for appellant Kailash Dheemar in CRA No. 359 of
2008 through Legal Aid Authority.
Ms. Chitra Saxena, counsel for appellant Badri Prasad in CRA No. 404 of
2008, through Legal Aid Authority.
Shri KS Tomar, Public Prosecutor for the State in all criminal appeals.
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Whether approved for reporting ......./..........
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JUDGMENT
(Delivered on 06/01/2022) Per Rajeev Kumar Shrivastava, J:-
This judgment shall also govern disposal of CRA No.324 of 2008 (Imrat Dheemar Vs. State of MP), CRA No.359 of 2008 (Kailash Dheemar vs. State of MP) & CRA No. 404 of 2008 (Badri Prasad vs. State of MP). Since the facts and circumstances of case in all the criminal appeals are same, therefore, for the sake of convenience, all the above-said criminal appeals are heard simultaneously.
(2) Vide common judgment dated 14th March, 2008 passed by Special 2 Judge, Datia (MP) in Special Case No.47/2005, appellants have been convicted under Section 399 IPC r/w Section 13 of MPDVPK Act and sentenced to undergo RI of three years with fine of Rs.3,000/- each and u/S. 402 IPC r/w Section 13 of MPDVPK Act, sentenced to undergo RI of three years with fine of Rs.2,000/- each with default stipulation. Appellants accused Badri Prasad and Imrat have been further convicted under Section 25(1-B)(a) of Arms Act and sentenced to undergo RI of one year with fine of Rs.1,000/- with default stipulation. Appellant- accused Dhaniram has been convicted under Section 25(1-B)(a) of Arms Act and sentenced to undergo RI of one year with fine of Rs.500/- with default stipulation. All the sentences have been directed to run concurrently.
(3) It is not in dispute that the place of incident i.e. Village Barra, District Datia has been declared a dacoity-affected area by State of MP, Bhopal vide notification No.F12-A/2000/B(1)/2/dated 24-01-2000. (4) Prosecution case, in brief, is that Police Statin Tharet on 02/08/2005 at about 07:00 PM received an information from an informer that some persons are planning to commit a dacoity near Sidha Baba Temple situated at the bank of river Sindh, village Bara. On receiving secret information, In-charge of Police Station, namely, Umesh Garg along with police forces reached the spot and heard the conversation of accused persons that they were making a plan to commit a dacoity. After hearing the conversation, police personnel surrounded and apprehended six of accused and three of accused succeeded in running away from the spot. On asking, apprehended accused persons disclosed their names, who were having various deadly weapons like 315 3 bore country-made katta, farsa, gupti, barchhi and lathi without any valid licence and the same were seized from their possession. Thereafter, a spot map was prepared and matter was investigated. Report was lodged at police station vide Ex.P13 on the basis of which, Crime No.53/2005 for offences punishable under Sections 399, 400, 402 of IPC, Section 25/27 of Arms Act and Section 11/13 of MPDVPK Act were registered. After recording of statements and on completion of investigation, charge sheet was filed by police under Section 399, 400, 402 of IPC r/w Section 13 of MPDVPK Act as well as under Section 25 of Arms Act against accused Dhaniram, Imrat and Badri Prasad before the Magistrate concerned, who committed the case to Special Court for trial of accused, in reply to which the accused pleaded not guilty and claimed to be tried.
(5) Prosecution got examined as many as PW1 Narendra Singh, PW2 Hotram Singh, PW3 Umesh Kumar Garg, PW4 Head Constable Radhepuri and PW5 Ramprakash. The oral evidence was put to the accused u/S 313 of CrPC in reply to which they stated that same is false. In defence, they did not examine any witness.
(6) After conclusion of trial, learned Trial Court after hearing both the parties and recording of prosecution evidence on record, found appellants guilty and accordingly, convicted and sentenced them as indicated in paragraph 2 of this judgment.
(7) Being aggrieved by impugned judgment of conviction and sentence, it is argued on behalf of the appellants that the learned trial Court has grossly erred in law in convicting the appellants and prosecution case is completely 4 false and on the face of it is unbelievable. It is further submitted that trial Court has utterly failed to appreciate evidence of prosecution witnesses. It is further submitted that independent witness, namely, Narendra Singh (PW1), who is said to be a witness of seizure memo, did not support prosecution case and, theretofore, his evidence is not reliable. The prosecution has not succeeded in establishing the guilt of the appellants beyond reasonable doubt and the entire prosecution story seems to be highly doubtful. Hence, conviction of the appellants under the said offence is unsustainable in the eyes of law and same deserves to be set aside. It is further submitted that the police personnel who had gone to the spot in question, would clearly indicate that they are not telling truth that they heard conversation of accused about making preparation for committing a dacoity, therefore, it is not possible to sustain conviction of appellants under the said offence. In support of contention, a judgment has been relied upon in the case of Suleman vs. State of NCT of Delhi, reported in (1999) 4 SCC 146. Further, it is submitted that it is very difficult to believe that although the appellants who had assembled at the place of occurrence for the purpose of committing a dacoity and some of them were caught hold of by police, who are alleged to have disclosed before police that they were making plan to commit a dacoity, but their statements being clearly not admissible in evidence. In this regard, a judgment has been relied upon in Chaturi Yadav vs. State of Bihar reported in (1997)3 SCC 430. Further, it is submitted that the testimony of prosecution witnesses is also rendered doubtful due to the fact that appellants who were armed with deadly weapons, had neither caused any fire at the 5 police to avoid their arrest nor any resistance was offered by them in their arrest, therefore, it renders prosecution story extremely doubtful. In this regard, a judgment of Chhattisgarh High Court has been relied upon in Santosh Kumar and Another vs. State of Chhattisgarh reported in 2006 CrLJ 1185 as well as judgment passed by Delhi High Court in the matter of Des Raj alias Dass vs. State, reported in 2000 IAD Delhi 945. (8) On the other hand, the learned State Counsel supported the impugned judgment of conviction and sentence and submitted that there being no infirmity in the impugned judgment of conviction and sentence and the findings arrived at by the learned Trial Court do not require any interference. Hence, prayed for dismissal of appeals.
(9) Heard the learned Counsel for the parties and perused the record as well as the evidence of material witnesses.
(10) Narendra Singh (PW1), who is said to be independent witness, before the trial Court, has turned hostile and in his evidence, he deposed that he was called by the Police at Police Station Tharet and nobody was arrested before him. This witness stated that he had put his signature on the arrest memo Ex.P1 to Ex. P6 and on the seizure memo Ex.P7 to Ex.P12. This witness, in his deposition, further admitted that no recovery was made before him. (11) Another witness Hotram Singh (PW2), in his evidence, deposed that at the relevant time, he was working as Head Constable in Police Station Datia and in his deposition, he stated that he had received two 315 bore country- made katta and five-round of live cartridges.
(12) PW3Umesh Kumar Garg, who was the Sub-Inspector of Police Station 6 concerned in his deposition, deposed that at the relevant time, he had received an information from an informer about assembling of some persons for making plan to commit a dacoity. Thereafter, he along with police forces encircled the accused and apprehended six of accused and three of accused were escaped from the place of occurrence. This witness further stated that accused Ramcharan was armed with Barchhi and accused Dhaniran with gupti. He had prepared arrest as well as seizure memo. This witness further stated that he had reached the place of incident i.e. Village Bara at about 01:30 pm and could not hear conversation of accused and,therefore, he could not say that which of accused person had been talking to each other about preparation for committing a dacoity. This witness further stated that there was no previous offence of dacoity registered against accused. The same version has been reiterated by Radhepuri (PW4), who at the relevant time was posting as Head Constable in Police Station concerned. (13) Except these two witnesses, Investigating Officer Umesh Kumar Garg (PW3) and Head Constable Radhepuri (PW4), no other witness has supported prosecution version. Investigating Officer Umesh Kumar Garg (PW3) in his cross-examination, has admitted that he had not heard talks of accused that they were making plan to commit a dacoity. Same fact has been reiterated by Head Constable Radhepuri (PW4). Only independent witness, Narendra Singh (PW1) in his evidence, denied the fact that any recovery was made before him from the instance of appellants or any other co-accused. (14) In regard to the ingredients of Section 399 and 402 of IPC, this Court in the case of Annu alias Ansingh vs. State of MP, reported in 1998 Cr.L.J 7 (MP) 110, has held as under:-
''For offence u/S.402 of IPC the conditions required to be proved by the prosecution are:-
(i) Assembly of 5 or more persons.
(ii) It should be for the purpose of dacoity.
In this case, there was an assembly of more than 5 persons. Further circumstances that they were armed with such implements, which could be used for house breaking or causing obstruction or climbing over the house as the rope was there, were also present. At least there was one fire-arm i.e. country made pistol. So by these circumstances, it can be suspected that these appellants had gathered with some nefarious object, as to why such a large number of persons should gather with such deadly weapons. But then the question is whether they were assembled for the purpose of committing dacoity, such an inference may be taken, if there is any background to show that they were confirmed dacoity. There is no evidence on record that they were either convicted for dacoity. So the circumstances are insufficient to infer that the assembly was for the purpose of dacoity.
Section 399 IPC requires the following conditions to be established:-
(I) Accused should have prepared to commit dacoity.
In this case, there is no evidence except assembly of these persons with deadly weapons regarding preparation to commit dacoity. There were more than 5 persons. So if they proceeded to commit some robbery, it would be dacoity. But we do not know whether they had gathered for committing such an offence. So their assembly could not be said to be making preparation to commit dacoity. Evidence is insufficient. Suspicion may be deep. Suspicion, however, deep may be, is not a substitute to prove the guilt beyond reasonable doubt, as is required to prove criminal charge.
For the aforesaid reasons, these appellants are entitled to the benefit of doubt in spite of suspicion. The Court has to go by whatever is material available on record. '' (15) From the evidence of independent witness, PW1 Narendra Singh, recovery of Barchhi from the possession of accused could not be proved. Apart from this, learned trial Court itself in paragraph 10 of its judgment has specifically observed that it has also not been proved from the evidence that appellants had been talking for making preparation to commit a dacoity. It is 8 not also clear from the facts of case that prior to incident, there was any criminal case registered against appellants in regard to commission dacoity or preparation to commit a dacoity.
(16) Considering the evidence led by prosecution in its entirety as well as the law laid down by Hon'ble Apex Court as well as catena of decisions of High Court in the above-said judgments, I am of the considered opinion that conviction of appellants under the aforementioned offences could not be sustained in the eyes of law. It is a fit case where appellants are entitled to benefit of reasonable doubt and deserves to be acquitted. (17) As a result of aforesaid discussion, all the criminal appeals filed against judgment the conviction and sentence are hereby Allowed. The impugned judgment of conviction and sentence dated 14th March, 2008 passed by learned Special Judge, Datia (MP) in Special Case No.47 of 2005 is hereby set aside and appellants are acquitted of all charges levelled against them. Appellants (who are in jail) shall be set at liberty forthwith, if not required in any other case. Fine amount, if paid, shall be refunded to appellants.
(18) The appellants be intimated with the result of their appeal and record be returned back along with certified copy of this judgment, for information and compliance.
(19) A copy of this order be kept in the connected criminal appeals.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.01.07 17:46:46 +05'30'