Madhya Pradesh High Court
Sheru @ Supriy vs The State Of Madhya Pradesh on 31 January, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
1 Cr.A. No.2453/2005 &
Cr.A. No.1426/2011
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 2453/2005
Appellants : Meghraj @ Majhi @ Machhi S/o
Waheed (Pathan) & another
Vs.
Respondent : State of Madhya Pradesh
Criminal Appeal No. 1426/2011
Appellants : Sheru @ Supriy, S/o Abdul
Vahid (Pathan) & 4 others
Vs.
Respondent : State of Madhya Pradesh
For the appellants : Shri S.C. Datt, learned Sr. Counsel
with Ms. Kishwar Khan, Advocate.
For the respondent : Shri Vaibhav Tiwari, Govt. Advocate.
PRESENT : Hon'ble Shri Justice R.S. Jha
Hon'ble Smt. Justice Nandita Dubey
Arguments heard on : 18.01.2018
Judgment delivered on : 31.01.2018
Whether approved for reporting : Yes/No
Law laid down
Significant paragraph numbers :
JUDGMENT
As per Nandita Dubey, J.:
Criminal appeal Nos. 2453/2005 and 2 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 1426/2011 arise out of the same incident and, therefore, heard and decided concomitantly.
2. These two appeals arise out of judgment dated 06.10.2005 passed by Second Additional Sessions Judge, Katni in S.T. No.95/2004, whereby the appellants have been found guilty for the offence under Sections 396 and 460 of the Indian Penal Code and have been sentenced to life imprisonment (two counts) and fine of Rs.500/- for each offence with a stipulation for two months simple imprisonment in case of default.
3. The case of prosecution is that in the intervening night of 25-26.10.2003, at around 3.30 A.M., the accused persons committed the House trespass and dacoity at the house of Surendra @ Shyam Sachdeva (P.W.-3) and in the course of such dacoity, cause death of one Sajan Sachdeva and injured Meena Sachdeva (P.W.-2), Surendra @ Shyam Sachdeva (P.W.-3) and Lakki Sachdeva and also looted cash and ornaments.
4. According to prosecution, on 25.10.2003, after the Diwali pooja, Surendra @ Shyam Sachdeva 3 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 (P.W.-3) was sleeping with his wife in one room, whereas his two sons and their dog were sleeping in an another room. At about 3-4 A.M. in the night, Surendra @ Shyam Sachdeva and his wife woke up, on hearing the barking of their dog. Meena (P.W.-2), when opened the door to know the reason for dog's barking, she found four persons standing outside the door, carrying sticks, who pushed her and forcibly entered their house and assaulted her on head and also assaulted P.W.-3 Surendra @ Shyam Sachdeva and their sons Lakki and Sajan. As a result of which, all four of them sustained grievous injuries and became unconscious. The appellants then looted the cash and ornaments and fled from the scene. Their pet dog was also killed in the same incident.
5. Surendra @ Shyam Sachdeva (P.W.-3) regained consciousness in the morning and called his neighbour Raghunandan Goyal (P.W.-8) for help. P.W.- 8 Raghunandan Goyal thereafter alongwith P.W.-7 Dr. Jai Chadhdha and other neighbours entered the house of P.W.-3 Surendra @ Shyam Sachdeva, after opening the door, which was locked from outside, where they found P.W.-2 Meena, Lakki and Sajan lying unconscious 4 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 and covered with blood. The injured were then taken to the City Hospital, Katni and on the advise of Dr. A.K. Arya, referred to the Institute of Medical Science, Jabalpur. During his treatment, injured Sajan succumbed to his injuries.
6. A report (Ex.P-1) to this effect was lodged by Raghunandan Goyal (P.W.-8) in the police Station Katni. On the basis of which FIR (Ex.P-2) was registered and the criminal law was set into motion. Merg intimation (Ex.P-23) was made and the body of the deceased was sent for postmortem examination.
7. Dr. A.K. Arya, who initially examined injured Surendra @ Shyam Sachdeva found the following injuries :-
1. Lacerated wound 5 x 2 x bone deep right frontal region of skull
2. Lacerated wound 4 x 2 x skin deep on right frontal region of skull.
3. Green swelling + both eyes black
4. Green swelling + all over both side of face.
On examination of injured Meena Sachdeva, doctor has found the following injuries :-
1. Incised wound 4 x 1 x skin deep on right frontal region of skull.5 Cr.A. No.2453/2005 & Cr.A. No.1426/2011
(2) Incised wound 3 X 1 X skin deep on left parietal region of skull.
(3) Incised wound on pinna of right ear (4) Both eyes swelling + and black.
(5) Green swelling + contusion left side of face.
(6) Swelling + contusion left chest right forearm, tenderness + On examination of injured Lakki, doctor has found the following injuries :-
(1) Lacerated wound 5cm x 1 cm x skin deep on right frontal region of skull. (2) Lacerated wound 3 x 1 x skin deep on right parietal region of skull. (3) Right eye black, green swelling + all over both side of face.
8. Dr. N.S. Kukrele, who conducted the autopsy on the body of the deceased found eight injuries on the body of the deceased. In the opinion of Dr. Kukrele, cause of death was head injury and severe haemorrhage due to injury to spleen. The postmortem report is reproduced below :-
(1) Contusion with swelling with 8 cm x 4 cm at right ear region , bleeding present. (2) Contusion 10 cm x 6 cm at right side of neck.
(3) Contusion 12 cm x 8 cm at right tempero parietal region.
(4) Contusion 8 cm x 3 cm at right occipital region.
(5) Contusion 3 cm x 2 cm at left abdominal region tenderness present in chest and upper 6 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 abdomen.
(6) Abrasion 1 cm x 0.5 cm at central of chin. (7) Contusion with abrasion 4 cm x 1 cm at front of neck upper part.
(8) Contusion with abrasion 3 cm x 2 cm at left side of neck.
All injuries are ante-mortem in nature caused by hard and blunt object.
9. During the course of investigation, the site plan was prepared and the witnesses were examined. On the basis of information received by S.P. Katni, six of the accused persons namely, Sheru @ Supriy, Shahjad, Parvej @ Supriy @ Khaddi, Meghraj @ Majhi @ Machhi, Maroof @ Kala and Gurfan, who were in the custody of the police station T.P. Nagar, Meerut, U.P. were brought on production warrant and were formally arrested on 27.05.2004 vide Ex. P-35 to P-40. Six blood stained sticks were seized in pursuance to the disclosure statements made by the accused Gurfan, Shahjad, Maroof @ Kala, Meghraj @ Majhi @ Machhi, Sheru @ Supriy and Parvej @ Supriy @ Khaddi. A test identification parade was held at sub jail, Katni, where P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva identified the accused persons from amongst 30 other prisoners, who were mixed up with the suspects. Peeru @ Vira @ Chita was arrested later and his 7 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 identification parade was held on 10.06.2004 at sub- jail Katni, where P.W.-2 Meena, P.W.-3 Surendra @ Shyam Sachdeva identified him from amongst the six other prisoners.
10. After completion of the investigation, all the accused were tried for committing the offence under Sections 396 and 460 of the I.P.C. There were 11 witnesses examined on behalf of the prosecution. The accused pleaded not guilty, however, they chose not to produce any witness.
11 . The trial Court relying on the evidence of P.W.-2 Meena, P.W.-3 Surendra @ Shyam Sachdeva, P.W.-10 Rajesh Kaushik, Nayab Tehsildar and P.W.-11 Hem Karan Dhurve, Tehsildar has recorded a finding of guilt against the appellants and convicted them as aforesaid.
12. Shri S.C. Datt, learned Senior Counsel appearing for the appellants submits that the doctor, who conducted the postmortem on the dead body of the deceased having not been examined as witness during the trial, the postmortem report could not be 8 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 read as substantive evidence under Section 294(3) of the Cr.P.C. It is further contended that the conviction of the appellants is based solely on the identification of the accused persons by P.W.-2 Meena. It is stated that the identification was made after a lapse of 7 months, hence her evidence cannot be relied upon for convicting the appellants. It is contended that P.W.-2 Meena in her statement has stated that she saw only four persons but has identified seven persons in the Court. Lastly, it is urged that failure to put specific question with regard to blood group found on seized sticks and bed sheet to the accused under Section 313 of the Cr.P.C. has vitiated the trial. Learned Senior Counsel has placed reliance on 1979 CriLJ 236 Alld. Jagdeo Singh & others Vs. State, 1980 CriLJ 853 Bom. Ganpat Raoji Suryavanshi Vs. State of Maharashtra, 1995 CriLJ 3596 Punjab Pal Singh Vs. The State of Punjab, 1980 JLJ 501 Nahadariya Vs. State of M.P., AIR 1993 SC 931 Tahir Mohammad and others Vs. State of M.P., 2005 CriLJ 908 Umesh Kamat Vs. State of Bihar, (2015) 6 SCC 623 Iqbal and another Vs. State of U.P., AIR 1954 SC 39 Trimbak Vs. State of Madhya Pradesh, 1998(3) Crime 107 (SC) Ravindra @ 9 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 Ravi Bansi Gohar etc. Vs. State of Maharashtra & others, (2008) 16 SCC 328 Asraf Ali Vs. State of Assam and (2014) 10 SCC SCC 270 Sukhjit Singh Vs. State of Punjab in support of his contention.
13. As against this, learned counsel for the State submitted that the trial Court has rightly convicted the accused persons on the basis of evidence of P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva, who apart from being injured have lost their son during the incident. It is submitted that delay in test identification parade is no ground for not relying on the evidence P.W.-2 Meena, who recognized the accused after seeing their picture on the TV and informed the Katni S.P. regarding this. It is submitted that the weapon (sticks) used in the incident and recovered at the instance of accused persons were blood stained and as per Chemical examination report, the blood found on the sticks and the bed sheet was of the same blood group (B).
14. We have heard the learned counsel for the parties at length and meticulously perused the record. 10 Cr.A. No.2453/2005 & Cr.A. No.1426/2011
15. The contention of learned Senior Counsel that the postmortem/injury report cannot be considered as substantive evidence under Section 294(3) Cr.P.C. has been considered and dealt with by the Supreme Court in the case of Shamsher Singh Verma Vs. State of Haryana (2016) 15 SCC 485 and Akhtar and others Vs. State of Uttaranchal (2009) 13 SCC 722.
16. In Samsher Singh (Supra), the Supreme Court has held :-
14. In view of the definition of 'document' in Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness.
The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly on a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the 11 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence.
17. In Akhtar (supra), the Supreme Court has held :-
21. It has been argued that non-
examination of the concerned medical officers is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 of the CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-Section (3) of Section 294 CrPC. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined.
18. Similar is the view held by the Full Bench of 12 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 High court of Allahabad in Saddiq and others Vs. State 1981 Cr.L.J. 379, High Court of Rajasthan in Shabbir Mohammad Vs. State of Rajasthan 1996 CrLJ 2015, High Court of Bombay in Shaikh Farid Hussinsab Vs. State of Maharashtra 1981 Mh.L.J 345 and High Court of Karnataka in Boraiah @ Shekar Vs. State by Ramanagaram Police ILR 2003 KAR 368.
19. The Full Bench of Allahabad High Court in the case of Saddiq (supra) has overruled the view taken by the Division Bench of the same Court in Jagdeo Singh's case (1979 Cr.L.J. 236) and Full Bench of Bombay High Court in the case of Sheikh (supra) has overruled the view taken by the Division Bench in Gopal Rao's case (1980 Cr.L.J.853).
20. In the present case, it is undisputed that the defence admitted and endorsed the genuineness of the postmortem report Ex.P-26-A before the trial Court. Hence, the genunity of the documents stands proved and in our considered opinion, the same shall be treated as valid under Section 294 of the Cr.P.C. and can be read as substantive evidence to prove the correctness of its contents without the concerned 13 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 doctor being examined.
21. As regards the delay in identification of the accused persons, it is evident from the record that the accused persons were arrested on 27.05.2004 and the identification parade was held on 27.05.2004 and 10.06.2004. Hence, there is no lapse in holding the identification parade.
22. In Daya Singh Vs. State of Haryana (2001) 3 SCC 468, the supreme Court in para 13 has held:
"The question, therefore, iswhether the evidence of injured eyewitnesses PW37 and PW38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at 14 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471] as under:
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 two fold. 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."
23. In the present case, the incident took place on 25.10.2003, on Diwali night. As Per P.W.-2 Meena, she had clearly seen the assailants when they entered the house as all the lights were on due to Diwali pooja. According to P.W.-2 Meena, she recognized the accused persons when their photographs were shown on TV on 19.04.2004 in relation to some crimes committed by them in different cities. Information to this effect was immediately given by her to the S.P. Katni, who verified 15 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 the same with Police Station T.P. Nagar, Meerut, U.P. and brought the accused by production warrant on 27.05.2004, where they were identified clearly by P.W.- 2 Meena and P.W.-3 Surendra @ Shyam Sachdeva from amongst the 30 other prisoners. Her statement is corroborated by P.W.-10 Rajesh Kaushik, Naib Tehsildar and P.W.-11 Hem Karan Dhurve, Tehsildar, who have stated that the accused were mixed with 30 other prisoners and despite that P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva have rightly identified by them in sub jail Katni stating that these persons have committed dacoity in their house.
24. In view of the aforesaid facts, the decisions relied upon by the learned Senior Counsel are not applicable to the facts of the present case, as in AIR 1993 SC 931 Tahir Mohammad and others Vs. State of M.P. and 2005 CriLJ 908 Umesh Kamat Vs. State of Bihar, the dacoits had their faces covered to conceal their identity, whereas in (2015) 6 SCC 623 Iqbal and another Vs. State of U.P. and AIR 1954 SC 39 Trimbak Vs. State of Madhya Pradesh, the facts clearly stated that it was pitch dark and the witnesses had only seen the assailants in torch 16 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 light. In 1998(3) Crime 107 (SC) Ravindra @ Ravi Bansi Gohar etc. Vs. State of Maharashtra & others, the photographs of the accused were shown to the witnesses before the test identification parade. Whereas, in the present case, the evidence is cogent and consistent with regard to identification of the appellants and there is no reason to disbelieve the evidence of P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva, when they identified the accused out of 30 prisoners. As the incident took place on Diwali night, when all the lights were kept on, P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva had no difficulty in seeing the faces of the accused. P.W.-2 Meena has clearly stated that four of the accused persons entered the room, whereas others were standing outside and she had clearly seen them as there was enough light. Therefore, the learned trial Court has rightly appreciated this aspect in the judgment.
25. Arguments of learned Senior Counsel that trial was vitiated as no specific question was put to the appellants regarding the fact that blood group 'B' found on the seized lathies matched with blood group found on the clothes and bed sheet of the deceased is 17 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 liable to be rejected, since the prosecution has not sought to prove its claim on the basis of said fact.
26. The power to examine the accused is provided in Section 313 of the Cr.P.C. which reads as follows:
"313 Power to examine the accused : (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court:-
(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b) (2) No oath shall be administered to the accused when he is examined under sub-
section (1), (3) the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) the answers given by the accused may be taken into consideration in such inquiry or trial, 18 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he was committed."
27. A reading of the aforesaid makes it clear that the object of 313 of the Code is that if a point in the evidence is incriminating against the accused and the conviction is intended to be based upon it, the accused should be properly questioned about it and be given an opportunity to explain it. It is also settled principle of law that any circumstances in respect of which an accused was not examined under Section 313 Cr.P.C. cannot be used against him.
28. In the present case, the trial Court has based the conviction relying on the testimony of P.W.-2 Meena and P.W.-3 Surendra @ Shyam Sachdeva, who are the injured eye witnesses and has also identified the accused persons and also on the evidence of P.W.- 10 Rajesh Kaushik, Naib Tehsildar and P.W.-11 Hem Karan Dhurve, Tehsildar, who conducted the identification parade as Ex. P-3 and P-4.
29. A scrutiny of 313 statement of the accused shows that specific questions with regard to 19 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 identification were put to the accused persons from questions No. 2 to 15 and questions No.38, 49, 50 and
51. It is also evident from questions No.45 and 46 of the accused statement that the appellants were asked about the FSL report, which is marked as (Ex.P-42) and the recovery of blood stained lathies from them. By not putting a specific question regarding the matching blood group mentioned in FSL report, no prejudice can be said to have been caused to the appellants as the point about matched blood group i.e., about the contents of FSL report is implicit in this question. The accused were asked about the FSL report and they had full opportunity to say what they wanted to say with regard to its contents. Hence, the judgments relied upon by the learned Senior counsel in this regard are not applicable to the facts of the present case.
30. In Narsingh Vs. State of Haryana (2015) 1 SCC 496 the Supreme Court has held :-
"18. Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, this Court in Santosh Kumar Singh v State through CBI, (2010) 9 SCC 747 (Para 92), has held as under:20 Cr.A. No.2453/2005 & Cr.A. No.1426/2011
"... the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him..."
20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine 21 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused.
22. We may also refer to other set of decisions where in the facts and circumstances of the case, this Court held that no prejudice or miscarriage of justice has been occasioned to the accused. In Santosh Kumar Singh v State thr. CBI (supra), it was held that on the core issues pertaining to the helmet and the ligature marks on the neck which were put to the doctor, the defence counsel had raised comprehensive arguments before the trial court and also before the High Court and the defence was, therefore, alive to the circumstances against the appellant and that no prejudice or miscarriage of justice had been occasioned. In Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the facts and circumstances, it was held that by not putting to the appellant expressly the chemical analyser's report and the evidence of the doctor, no prejudice can be said to have been caused to the appellant and he had full opportunity to say what he wanted to say with regard to the prosecution evidence and that the High Court rightly rejected the contention of the appellant-accused in that regard."
31. In view of the aforesaid analysis, the trial Court on proper appreciation and analysis of the facts and evidence on record has rightly held the appellants guilty of offence under Sections 396 and 460 of the 22 Cr.A. No.2453/2005 & Cr.A. No.1426/2011 I.P.C. we are of the considered opinion that the trial Court has not committed any illegality in recording the finding of conviction. Therefore, we affirm the same and dismiss the appeal accordingly.
32. It is informed that the appellants Megraj @ Majhi @ Machhi, Maroof @ Kala, Parvej @ Supriy @ Khaddi, Peeru @ Vira @ Chita and Sheru @ Supriy are on bail. Their bail bonds shall stand cancelled and they are directed to be taken into custody forthwith to undergo the remaining part of jail sentence. Appellants Shahjad and Gurfan, who are in jail shall remain incarcerated to undergo the remaining part of their jail sentence.
33. A copy of this judgment be also kept in the record of Cr.A. No. 1426/2011.
(R.S.Jha) (Nandita Dubey)
JUDGE JUDGE
31/01//2018 31/01//2018
gn
Digitally signed by GEETHA NAIR
Date: 2018.01.31 14:42:12 +05'30'