Madhya Pradesh High Court
Dhari Yadav vs The State Of Madhya Pradesh on 5 October, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J
CRIMINAL APPEAL No.1904 OF 2009
Dhari Yadav & another.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL No.2222 OF 2009
Komal Yadav.
Vs.
State of Madhya Pradesh.
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Shri Narendra Nikhare, Advocate for the appellants in Cr.A.
No.1904/2009 and Shri D.N.Shukla, Advocate for the
appellant in Cr.A.No.2222/2009.
Shri G.S.Thakur, Panel Lawyer for the respondent/State.
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JUDGMENT
(Delivered on the 5th day of October, 2012) This judgment passed by me shall govern the disposal of above mentioned Criminal Appeals, since both the appeals arise out of common impugned judgment.
2. These criminal appeals are preferred by the appellants being aggrieved by the judgment and order of sentence dated 14/9/2009 passed by the Third Additional Sessions Judge (Fast Track Court), Shahdol in ST No.98/2008, whereby the appellants were convicted for commission of offence punishable under Section 394 read with Section 397 of IPC and sentenced for seven years' 2 Cr.A. No.1904/09 & 2222/09 rigorous imprisonment with fine of Rs.1000/-. In default of payment of fine amount, they were to undergo for six months' rigorous imprisonment in addition.
2. The prosecution's case, in short, is that Sikandar (PW-1) and Anil Gupta (PW-4) were in trading of goats and meats. On 16.1.2008 at about 8:00 PM they went to Village Hardi to deliver some goats to one Dani Yadav for taking care of them. At about 8:30 PM when they were coming back by a bolero jeep bearing registration No.MP18 D/0558 the appellant Komal Yadav gave an indication to stop the vehicle, and therefore the vehicle was stopped. Thereafter the appellant Komal Yadav put his katta on the head of the complainant Sikandar and directed him to get off from the vehicle. The complainant was accompanied with Anil Gupta and three other persons namely Vikky Gole, Ajad Khan and Mohd. Shah. The appellant Komal Yadav took the keys of bolero jeep and took the search of the complainant Sikandar and his companions. He snatched the golden chain from the neck of the complainant Sikandar and took two golden rings and one silver ring from his hands and also one iron ring was taken by the appellants. The purse of the complainant was also taken in which the driving license and sum of Rs.600/- were kept by the complainant. A sum of Rs.40/- was taken from Anil Gupta whereas sum of Rs.20/-, 30/- and 50/- were taken from Vikky Gole, Ajad Khan and 3 Cr.A. No.1904/09 & 2222/09 Mohd. Shah respectively. Then the appellants assaulted the complainant Sikandar and victim Anil Gupta. Thereafter the appellants left the spot by bolero jeep and went towards the forest. The complainant and his companions came to their houses by foot. On the next day morning the complainant Sikandar lodged an FIR Ex.P-1 at the Police Station Kotwali Shahdol District Shahdol. The victims Sikandar and Anil Gupta were sent for their medico legal examination. Dr. A.K.Gautam (PW-3) examined the victims Anil Gupta and Sikandar and gave his report Ex.P-14 and Ex.P-15 respectively. One injury was found to the victim Anil Gupta in his left ring finger, whereas 2-3 injuries were found to the victim Sikandar caused by hard and blunt object. One was on the right knee, second was on the right thumb and third was on the right parietal region. Thereafter SHO Shri Hemant Sharma (PW-10) started his investigation. He got the appellants on the same day. The memo under Section 27 of the Evidence Act was recorded and bolero jeep along with its keys and all papers were seized from the appellant Komal Yadav. A sum of Rs.300/- and one handmade pistol along with two cartridges were also seized from the appellant Komal Yadav and the memo Ex.P-17 was prepared. Similarly, one golden ring was seized from appellant Babu Yadav and another golden ring was seized from appellant Dhari Yadav. The seized property was duly 4 Cr.A. No.1904/09 & 2222/09 identified by the complainant Sikandar before Jasvir Singh (PW-9) a Ward Member. The identification memo Ex.P-3 was prepared by Jasvir Singh. After due investigation, a charge sheet was filed before the Chief Judicial Magistrate, Shahdol, who committed the case to the Sessions Judge, Shahdol and ultimately it was transferred to the Third Additional Sessions Judge, Shahdol.
3. The appellants-accused abjured their guilt. They took a specific plea that a transaction of purchase of goats took place between the appellant Komal Yadav and the complainant Sikandar and some amount was due for payment, and therefore Sikandar lodged a false FIR of robbery against the appellants. However, no defence evidence was adduced.
4. The learned third Additional Sessions Judge after considering the evidence adduced by the prosecution convicted the appellants for commission of offence punishable under Section 394 read with Section 397 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties at length.
6. The learned counsel for the appellants has submitted that a false case was registered by the police with the help of the complainant Sikandar. There were some inherent flaws in the case. There was a business 5 Cr.A. No.1904/09 & 2222/09 relation of the complainant and the appellant Komal Yadav. They were known to each other, and therefore there was no possibility to the appellants to commit a robbery with such persons. Secondly, if robbery was committed by the appellants, then purpose of robbery should be to get the vehicle from the complainant, but the vehicle was left abandoned along with its keys etc. near a talaiya, and therefore it appears to be unnatural that the vehicle was abandoned by the appellants. There is a lot of contradictions between the statements given by various eye-witnesses. The seizure is highly doubtful. Jasvir Singh (PW-9), Ward Member has turned hostile, and therefore the identification of the seized property lost its value. Under such circumstances, the appellants could not be convicted for any offence. They are unnecessarily in the custody for so many years. It is prayed that they be acquitted.
7. On the other hand, the learned counsel for the State has argued in support of the impugned judgment on the ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court in the conclusion drawn by the trial Court.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and 6 Cr.A. No.1904/09 & 2222/09 circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be accepted?
9. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is apparent that two basic inherent unnaturalities are visible in the case. It is accepted by the witness Anil Gupta that some transaction of goats took place with the appellant Komal Yadav in the past, whereas Sikandar has accepted that some transaction of the goats took place between him and brother of the appellant Komal Yadav and brother-in-law of Komal Yadav i.e. Dani Yadav. Under such circumstances, the appellants were known to the complainant and no such robbery can be done with the known persons, otherwise there are clear chances of arrest and conviction of the culprits. Secondly, if the appellants had committed such robbery, then their natural conduct could be to escape from the spot and to encash the robbed property. On the contrary, it is found that the vehicle robbed from the complainant was left abandoned along with its keys and papers and all the appellants were found in their houses on the next day of the robbery and the police could catch them without any trouble. These two unnatural circumstances indicate that there is possibility of false implication of the appellants in the crime.
7 Cr.A. No.1904/09 & 2222/09
10. The prosecution has adduced the evidence of eye- witnesses namely Sikandar (PW-1), Anil Gupta (PW-4) and Vikky Gole (PW-5). There is a lot of contradictions between the ocular evidence given by these witnesses. For example, the complainant Sikandar says that the appellant Komal Yadav put his gun on his head, whereas Anil Gupta claims that he was driving the vehicle and gun was kept on his head. Similarly, Sikandar states that after the incident they went through the fields and reached to the City Shahdol by foot, whereas Anil Gupta has admitted in para 23 of his cross examination that when they crossed the Baghel Dabha, Sikandar contacted his brother by another mobile phone which was kept by him and thereafter brother of the complainant Sikandar came with a car and thereafter they went to their houses by the car. Sikandar states that no villager came to the spot at the time of incident, whereas Anil has accepted that so many villagers came to the spot. The victim Anil states that the appellant Komal Yadav put off their clothes from their body and he gave those clothes back due to interference done by the brother of the appellant Komal, whereas no such interference has been narrated by the complainant Sikandar neither in the Court nor in the FIR. If the brother of the appellant Komal Yadav interfered in the crime, then he could return the vehicle as well as rings etc. to the complainant and other victims. The 8 Cr.A. No.1904/09 & 2222/09 complainant Sikandar and Anil Gupta have stated that their mobiles were taken by the appellants, but in the FIR Ex.P-1 it is nowhere mentioned that the appellants robbed their mobiles also.
11. Vikky Gole and two other persons were present in the bolero vehicle but it is strange that they did not interfere in the matter. The victim Anil Gupta states that they were children, and therefore they could not do anything. However, when Vikky Gole was examined before the trial Court, his age was recorded to be 21 years and he told before the Court that when the appellants took Sikandar and Anil towards the field, Vikky and his companions ran away from the spot. They reached to Baghel Dhaba and sat there when Sikandar and Anil came to the Dhaba, whereas neither Anil nor Sikandar has stated that the appellants took them in the field to rob them. On the contrary, it is mentioned in the FIR that all the three helpers including Vikky Gole were also robbed. Under such circumstances, where there is material contradiction between the testimony of Sikandar, Anil Gupta and Vikky Gole, it appears that a false case was prepared by the complainant Sikandar with the help of the police.
12. If corroborative evidence to the incident is considered, then it is very strange that the appellants found in their houses and no difficulty took place to the police to 9 Cr.A. No.1904/09 & 2222/09 arrest them. However, the property was seized on the basis of the memo given under Section 27 of the Evidence Act. According to the memo Ex.P-4, an interrogation took place with the appellant Komal Yadav near Pandey Talaiya Nawalpur. According to the SHO Shri Hemant Sharma (PW-10), he started his investigation when the memo Ex.P-4 was given by the appellant Komal Yadav at Pandey Talaiya, Nawalpur where the bolero vehicle was found parked. If the appellants were found in their houses, then investigation must have been started from the place near their houses. The witness Farid Khan (PW-2) has stated that on the date of seizure, he and one Papla Khatik went to the Village Hardi. They saw the police which was standing near Panchayat Bhawan, Hardi, and thereafter the police took them to the houses of the appellants and made recovery of some ornaments etc. He has stated that interrogation was done with the appellants at Panchayat Bhawan Hardi. Thereafter this witness was declared hostile, and then he accepted that from Panchayat Bhawan Hardi, the appellants and their witnesses were taken to Pandey Talaiya Nawalpur and thereafter an interrogation took place at that place. The procedure adopted by the SHO Shri Hemant Sharma appears to be unnatural. If he got the appellants in their houses at Village Hardi, then an interrogation could be done in the Panchayat Bhawan Hardi or they should be 10 Cr.A. No.1904/09 & 2222/09 taken to the Police Station for interrogation. How it was possible that an interrogation took place at Pandey Talaiya Nawalpur where bolero jeep was left abandoned. Without any preliminary interrogation, the police could not know that the vehicle was parked near Pandey Talaiya Nawalpur, but according to the memo Ex.P-4, it was recorded at Pandey Talaiya Nawalpur. There was no fun in taking the witnesses and accused persons from Panchayat Bhawan Hardi to Pandey Talaiya Nawalpur, and then to interrogate them. Also a memo under Section 27 of the Evidence Act was recorded when police had already found the vehicle and hence it was of no use to record a memo relating to the vehicle. If the appellants had told about the vehicle that it was placed at Pandey Talaiya, then the memo should have been recorded at that place, where the appellants gave the information about the vehicle. Under such circumstances, it is apparent that SHO Shri Hemant Sharma knew that the vehicle was parked at a particular place, and therefore he took the witnesses as well as the appellants to that place. If the intimation of the vehicle was given by the appellant Komal Yadav at Panchayat Bhawan Hardi, then why that intimation was not recorded at Panchayat Bhawan Hardi. There is no explanation given from the side of SHO Shri Hemant as to why the memo under Section 27 of the Evidence Act Ex.P-4 was recorded from the appellant Komal 11 Cr.A. No.1904/09 & 2222/09 Yadav at Pandey Talaiya Nawalpur.
13. If the appellants had left the vehicle at Pandey Talaiya Nawalpur, then certainly they must have kept the keys of the vehicle with them so that it may be disposed off as and when its disposal was possible. But according to the witness Farid Khan, the vehicle in question was parked near Pandey Talaiya and keys were in the vehicle itself and all papers including the driving license were there in the vehicle. Such a situation indicates that the appellants abandoned the vehicle after its robbery at Pandey Talaiya, Nawalpur. If it was so easy that a precious robbed property was to be abandoned without any reason, then what was the necessity to commit such a robbery. Such conduct of the Investigation Officer, and witnesses alongwith alleged overact of the appellants indicates that the vehicle was left at a particular place by the complainant himself and information was given to the police so the appellants could be taken to the place where the vehicle was left, otherwise there was no problem to the SHO Shri Hemant Sharma to get the memos recorded at Panchayat Bhawan Hardi and thereafter to go for seizure of the vehicle.
14. Witnesses Farid Khan and Papla Khatik were the residents of Gharola Mohalla, Shahdol, whereas interrogation took place at Village Hardi, but no local witnesses were taken by the SHO Shri Hemant Sharma. 12 Cr.A. No.1904/09 & 2222/09 Similarly, in the FIR it was nowhere mentioned that the appellants robbed the mobile phones of the complainant Sikandar and the victim Anil Gupta, but such mobile phones were also shown to be seized from the appellant Komal Yadav. The most important sentence is told by Sikandar in para 23 of his cross examination, in which he has accepted that after lodging of FIR, he remained in Kotwali Police Station upto the evening and he accompanied with SHO Shri Sharma. What was the necessity to the complainant to remain at the Kotwali for the entire day without any reason. Under such circumstances, where the witness Farid has accepted that the complainant was known to him, it appears that the witnesses were taken by the Investigation Officer with complainant's choice.
15. The witness Farid Khan could not say from where the appellants Babu Yadav and Dhari Yadav brought the golden rings. Farid Khan and SHO Hemant Sharma have stated that they were permitted to go inside the house and they brought the golden ring from their houses. Both the witnesses could not say how many persons were residing in the house of the appellants Babu Yadav and Dhari Yadav.
16. It is strange that the appellants found in their houses on the next day of the incident and the police could recover the entire property on the next day without any problem. SHO Shri Hemant Sharma took the interested 13 Cr.A. No.1904/09 & 2222/09 witnesses for seizure. He had shown the seizure of two mobile phones from the appellant Komal, whereas there was no information in the FIR that such mobile phones were robbed. Under such circumstances, he could get two golden rings and one silver ring from the complainant at the time of seizure to prepare a false case of robbery, otherwise what was the basis to the SHO Shri Hemant Sharma to seize two mobile phones from the appellant Komal Yadav, whereas such mobile phones were never robbed.
17. Sikandar and Anil have stated before the Court that their mobile phones were also robbed, but what was the problem to the complainant Sikandar in not mentioning the fact of robbery of the mobile phones in the FIR Ex.P-1 itself. The statements of the complainant Sikandar and Anil clearly indicates that they told before the Court about the robbery of the mobile phones, just to support the seizure done by the Investigation Officer of mobile phones from the appellant Komal Yadav. On the contrary, Anil Gupta has accepted that a talk took place between Sikandar and his brother soon after the incident, and therefore it is clear that the mobile phones of the complainant Sikandar and his companions were not robbed. If robbery was committed by the appellants, who took the search of Anil Gupta as well as Sikandar and their companions where a sum of Rs.20/-, 30/- etc. were taken from the companions of the complainant, 14 Cr.A. No.1904/09 & 2222/09 then why the mobile phones were not robbed by the appellants. To answer such question, SHO Shri Hemant Sharma seized the mobile phones from the appellant Komal Yadav, though the same were not robbed. Such type of action of creating evidence indicates that no robbery took place with the complainant Sikandar and a false case was prepared by the police with the help of the complainant Sikandar. Under such circumstances, SHO Shri Sharma and his witnesses relating to the seizure and memos under Section 27 of the Evidence Act, lose their confidence and it is not proved beyond doubt that either the vehicle or other ornaments etc. were found in the possession of the appellants.
18. If the identification of the robbed property is considered, then it is a strange situation that one month after the seizure identification of the robbed property was arranged, whereas the complainant Sikandar has claimed that he remained in the Kotwali Police Station for the entire day, and therefore soon after the seizure he could see all the articles seized, hence there was no fun in arranging any identification parade. However, the Investigation Officer arranged the identification parade with the help of Jasvir Singh (PW-9). Jasvir Singh in his statement did not support the identification memo Ex.P-3. He turned hostile. He refused that he arranged any identification proceeding. 15 Cr.A. No.1904/09 & 2222/09 Under such circumstances, it appears that a fake identification memo was prepared by the police and signature of the Ward Member Jasvir Singh was obtained on that memo.
19. If the entire evidence adduced by the prosecution is considered simultaneously, then it would be clear that the entire evidence was unnatural and doubtful. Known persons could not commit robbery with the complainant. If they have committed robbery, then they should have disappeared along with robbed property. The vehicle which was seized was abandoned by the appellants with its keys and all papers. The police knew from the very beginning that the vehicle was lying at Pandey Talaiya Nawalpur, and therefore the Investigation Officer took the appellants to that place and started his investigation from Pandey Talaiya Nawalpur. The interest witnesses were taken for the seizure though they did not corroborate the entire procedure of interrogation and seizure. They also turned partly hostile. The description of the incident which was stated by the Sikandar and Anil Gupta is different from each other. A material contradiction is visible. Neither eye- witnesses appear to be believable nor the witnesses relating to the seizure are believable. It is not proved beyond doubt that any robbed property was seized from the appellants. Under such circumstances, the possibility cannot be ruled 16 Cr.A. No.1904/09 & 2222/09 out that since the complainant was not ready to pay the remaining amount to the appellants, and therefore he implicated them in a case of robbery with the help of police where no such robbery took place with the complainant. The entire investigation done by the SHO Shri Hemant Sharma appears to be fishy and fake, which inspires no confidence.
20. When a doubt is created in the case, then benefit of doubt is to be given to the accused persons. It is highly doubtful that a robbery was committed with the complainant and his companions, therefore the appellants cannot be convicted for the offence under Section 394 read with Section 397 of IPC or for any lower offence of the same nature like under Section 394 or 392 of IPC. Hence, they are entitled to get the benefit of doubt.
21. On the basis of the aforesaid discussion, the appeals of the present appellants are allowed. Their conviction and sentence directed by the trial Court under Section 394 read with Section 397 of IPC are hereby set aside. They are acquitted from all the charges appended against them by giving them benefit of doubt that no robbery was committed. They would be entitled to get the fine amount, if they have deposited the same before the trial Court.
17 Cr.A. No.1904/09 & 2222/09
22. The Registry is directed to issue release warrants against the appellants so that they may be released forthwith.
23. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 05/10/2012 Ansari