Madhya Pradesh High Court
Bahadur @ Pandey Kol vs The State Of Madhya Pradesh on 30 July, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.2161 OF 2011
Bahadur @ Pandey Kol.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.2382 OF 2011
Shripal Yadav.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.2564 OF 2011
Rajman @ Gappi & another.
Vs.
State of Madhya Pradesh.
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Shri Arubendra Singh, Advocate for the appellants in
Cr.A.No.2161/2011 and Cr.A.No.2382/2011.
Shri Raj Kamal Chaturvedi, Advocate for the appellants in
Cr.A.No.2564/2011.
Shri G.S.Thakur, Panel Lawyer for the respondent/ State.
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JUDGMENT
(Delivered on the 30th day of July, 2012) This judgment passed by me shall govern the disposal of above mentioned criminal appeals, since these appeals arise out of common impugned judgment. 2 Cr.A.No.2161/11, 2382/11 & 2565/11
2. THESE criminal appeals are preferred by the appellants being aggrieved by the judgment dated 9/9/2011 passed by the 5th Additional Sessions Judge and Special Judge under Madhya Pradesh Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 (for brevity "Special Adhiniyam") Satna in Special Case No.53/2009, whereby the appellants were convicted and sentenced as under:
Conviction U/S Sentence Fine In default
(Rupees)
395 IPC 7 years RI 500/- SI for 1 month
each
397 IPC 7 years RI 500/- SI for 1 month
each
395 IPC r/w 7 years RI 500/- SI for 1 month
Sections 11/13 of each
MP Dakaity Aur
Vyapaharan
Prabhavit Kshetra
Adhiniyam, 1981
All the sentences were directed to run concurrently.
3. Prosecution case, in short, is that on 28.4.2007 Abhilash Singh resident of Village Tagi, Police Station Majhgawan was coming back by a tractor driven by Rajlalan Singh towards Majhgawan. In the trolley attached with the tractor 8-10 girls and women were also travelling. At about 4:00 PM in the evening, when tractor reached near the kusedi nala, two assailants detained the tractor with the help of guns and they started snatching the money, ornaments etc. from the various girls and women. One of the assailants had assaulted the driver Rajlalan by a leather belt for 3-4 times and two assailants were standing 50 mtrs. 3 Cr.A.No.2161/11, 2382/11 & 2565/11 away from the spot. After the incident, Abhilash Singh had lodged an FIR at 7:30 PM in the evening which was written as Dehati Nalishi at Village Patna. A case was registered. Thereafter the appellants were arrested and some firearms were seized from them. Some cash amount was also seized from some of the appellants. After due investigation, a charge sheet was filed before the JMFC Satna, but vide order dated 11.3.2008 passed by the CJM, Satna, the case was transferred to the Special Court under the Special Adhiniyam.
4. The appellants-accused abjured their guilt. They did not take any specific plea, but they have stated that they were falsely implicated in the matter.
5. The learned Special Judge, Satna after considering the prosecution evidence convicted and sentenced the appellants as mentioned above.
6. Heard the learned counsel for the parties.
7. Learned counsel for the appellants have submitted that there was no test identification parade against the appellants, whereas no named FIR was lodged by the complainant. Some cash amount is seized from three appellants which was not identifiable at all. Under such circumstances, there is no iota of evidence to show that the appellants were the dacoits. It is also submitted that in the FIR, it was mentioned that two persons snatched the ornaments and cash, whereas two persons were standing 4 Cr.A.No.2161/11, 2382/11 & 2565/11 near the tractor, but ultimately five persons were implicated in the alleged crime without any basis. Therefore, no offence of dacoity is made out. There was no specific charge for the offence under Section 25(1-B)(a) of the Arms Act, and therefore the appellants could not be convicted for any offence, though some arms are shown to be seized from them. In the alternate, it is prayed that the appellants remained in the custody for a longer period, hence their sentence may be reduced to the period which they have already undergone in the custody. For reduction of the sentence, reliance is placed upon the judgment passed by the Single Bench of this Court in the case of "Onkarsingh Vs. State of MP", [2008(2) MPLJ (Cri) 326].
8. On the other hand, learned counsel for the State has submitted that the trial Court has rightly convicted and sentenced the appellant, and therefore no interference is warranted from the side of this Court.
9. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered that whether the appellants cannot be convicted for any offence? And whether the sentence can be reduced?
10. It is apparent from the record that there was no named FIR against the present appellants. No test identification parade was arranged by the police with the 5 Cr.A.No.2161/11, 2382/11 & 2565/11 the help of any reputed citizen or Executive Magistrate. The identification done by the various witnesses before the Court is available, but it is strange that the witnesses could see only four persons, out of them two had snatched their money and ornaments, whereas other two were standing 50 mtrs. away. Under such circumstances, persons who were standing away could not be identified in such a manner. Similarly, if only four persons were involved in the alleged crime, then how the witnesses identified the fifth one in the Court. It is the settled view of the Hon'ble Apex Court that dock identification is no identification in the eye of law, if the accused persons were not identified in test identification parade. Under such circumstances, looking to the aforesaid infirmity, dock identification cannot be relied on.
11. Second factual position against the appellants was that the police seized a sum of Rs.300/- from the appellant Bahadur @ Pandey by Ex.P-7, sum of Rs.100/- from the appellant Rajman @ Gappi by Ex.P-6 and sum of Rs.450/- from the appellant Budhraj @ Budhsingh by Ex.P-8. It is also stated that their memos under Section 27 of the Evidence Act were recorded before the seizure. Such memos were exhibited as Ex.P-3 to P-5. The memos were written in more than 10-20 lines, but under the provisions of Section 27 of the Evidence Act, only one line was admissible that "I kept a sum of rupees at a particular 6 Cr.A.No.2161/11, 2382/11 & 2565/11 place, which can be seized", and remaining portion of the memo is not admissible under Section 24 of the Evidence Act. Under such circumstances, it cannot be said that the appellants were the culprits, who accepted their guilt before the police. It is possible that the appellants were the real culprits in the case, but it was to be established by the police. Therefore, it is proved by the memos under Section 27 of the Evidence Act against the appellants Bahadur @ Pandey, Rajman @ Gappi and Budhraj @ Budhsingh that they kept some money and it was seized.
12. If some property is stolen or robbed, then after its seizure, its identification is necessary. It was stated by so many witnesses, for example Ganga Bai (PW-3) that silver payal, silver lockets and silver bangles were robbed from so many women in the tractor-trolley, but it is surprising that the police could seize only cash amount from the three appellants. No ornament was seized from any of the appellants. No any robbed property was seized from remaining two appellants. Under such circumstances, there is nothing with the police to connect the appellants Shripal Yadav and Chhavilal with the present offence. The currency notes are not identifiable unless their serial numbers were given in the FIR, and therefore by seizure of such a small amount from the three appellants, makes no adverse effect to those appellants. Such cash amount could be of their 7 Cr.A.No.2161/11, 2382/11 & 2565/11 own. Under such circumstances, no evidence is created against the appellants due to the seizure of that cash.
13. On the basis of aforesaid discussion, it would be apparent that the prosecution failed to prove that the appellants were the persons who committed the robbery. Secondly, since in the FIR it was specifically mentioned that only four persons were involved in the robbery, and therefore it is not a case of dacoity, and therefore the appellants could not be convicted for the offence punishable under Section 395 of IPC. Similarly, there is no named FIR against the appellants. No test identification parade was arranged by the police against the appellants, dock identification is no identification in the eye of law and no robbed property has been seized from the appellants, and therefore the appellants could not be convicted for the offence punishable under Section 394 of IPC or any lesser offence of similar nature. Under such circumstances, they cannot be convicted for the offence punishable under Section 397 of IPC.
14. So far as the crime under Sections 11/13 of the Special Adhiniyam is concerned, Section 13 provides for minimum sentence, whereas Section 11 provides a punishment for specified offences generally against a dacoit. But since no offence of dacoity was made out in the case and it is nowhere established that any of the appellants was a dacoit, Section 11 of the Special 8 Cr.A.No.2161/11, 2382/11 & 2565/11 Adhiniyam is not attracted. The appellants cannot be convicted for their offence having some firearms with them under Sections 11/13 of the Special Adhiniyam. Moreover, it is mentioned that some firearms were also seized from Rajman @ Gappi, Bahadur @ Pandey and Budhraj @ Budhsingh, but no firearm was seized from other two appellants. No prosecution sanction under Section 30 of the Arms Act was obtained by the prosecution to prosecute the appellants for the offence punishable under Section 25(1-B)
(a) of the Arms Act. The learned Special Judge has not framed any charge for the offence punishable under Section 25 of the Arms Act. Under such circumstances, seizure of the arm is not required to be discussed much in the case.
15. However, if seizure of the arm is considered, then it would be apparent that both the witnesses namely Ramashankar (PW-7) and Anil Singh (PW-10) were turned hostile. So far as the testimony of the Investigation Officer R.P. Mishra (PW-9) is concerned, his overt-act in investigating is visible that though there was an allegation of robbery done by four persons, he implicated five persons to make it a case of dacoity. Therefore, the sole testimony of the Investigation Officer cannot be relied upon. Hence, it is not proved beyond reasonable doubt that any firearm or ammunition was seized from the appellants Rajman @ Gappi, Bahadur @ Pandey and Budhraj @ Budhsingh, and 9 Cr.A.No.2161/11, 2382/11 & 2565/11 therefore they cannot be convicted for the offence punishable under Section 25(1-B)(a) of the Arms Act.
16. On the basis of aforesaid discussion, it is apparent that the prosecution has totally failed to connect the appellants for the offence of dacoity or robbery, therefore they cannot be convicted for the offence punishable under Section 395, 397 or any inferior offence of the same nature. Similarly, they cannot be convicted for the offence punishable under Sections 11/13 of the Special Adhiniyam. Under such circumstances, the conviction directed by the trial Court is of no basis, and therefore it cannot be sustained. Since conviction is not maintainable, therefore there is no need to discuss about the sentence.
17. In the result, all the three appeals filed by the appellants are allowed. The conviction as well as the sentence directed by the trial Court for commission of offence punishable under Sections 395, 397 of IPC and Sections 11/13 of the Madhya Pradesh Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 is hereby set aside. The appellants are acquitted from all the charges. The appellants would be entitled to get the fine amount back, if they have deposited the same before the trial Court.
18. At present the appellants are in custody, therefore office is directed to issue a release warrant of the appellants forthwith.
10 Cr.A.No.2161/11, 2382/11 & 2565/11
19. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 30/07/2012 Ansari.