Chattisgarh High Court
Santu And Anr. vs State Of Madhya Pradesh on 17 August, 2001
Equivalent citations: 2001CRILJ4455, 2001(4)MPHT52(CG)
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. The applicants being aggrieved by the judgment dated 10-10-1995 passed in Criminal Appeal No. 65 of 1995 by the learned Additional Sessions Judge, Khairagarh Camp Kawardha confirming the judgment of conviction dated 12-6-1995 passed in Criminal Case No. 420 of 1994 by the Additional Chief Judicial Magistrate, Kawardha convicting the applicants under Section 457, IPC and sentencing them to undergo R.I. for one year and pay fine of Rs. 200/-, in default of payment of fine to undergo S.I. for twenty days and further convicting them under Section 318, IPC and sentencing them to undergo R.I. for six months and pay fine of Rs. 200/-, in default of payment of fine to undergo twenty days simple imprisonment, have filed this revision petition.
2. The prosecution case in brief is that on 10-2-1990 one Ashok Kumar lodged a report at Police Station, Sahaspur Lohara that certain cash and two sarees were stolen from his hotel. On the information the police registered Crime No. 20/90. During the course of investigation a sum of Rs. 37.40 was recovered from accused applicant Chaitu, and, from possession of applicant Santu two cotton sarees, one plastic bag and one rod were recovered. The said sarees were put for identification and according to the prosecution the sarees were rightly identified by the complainant. The prosecution agency recorded the statements of the witnesses and on completion of the investigation submitted the challan. The accused persons were put to trial as they had denied the commission of the offence. The Trial Court convicted the applicants and as the appeal proved infructuous these two persons have come to this Court.
3. Shri Ashish Shrivastava, learned counsel for the applicants, submits that from the statements of P.W. 1 Ashok Kumar the original complainant, it would not appear that he had identified the sarees. He submits that unless the person to whom the articles belong identifies the articles in a duly constituted identification proceedings, the statements of the other witnesses that the complainant did identify the articles would not provide legal evidence or a legal foundation to record a finding against the applicants. He further submits that there are material contradictions in the statements of the witnesses and as the details of the cash amount were not given in the first information report the recovery of the cash money which is otherwise unidentifiable cannot connect the applicant Chaitu with the alleged crime.
4. Opposing the arguments Shri Praful Bharat, learned counsel for the State, submits that from the statements of P.W. 4 Suresh it would clearly appear that the identification proceedings were conducted by him and in his presence the original complainant P.W. 1 Ashok Kumar had identified the articles. He submits that these two applicants were found roaming here and there near the hotel and as the recovery of incriminating articles were made from them the Courts below were justified in convicting the applicants.
5. I have gone through the complete records and have heard the parties at length.
6. P.W. 1 Ashok Kumar in his statements before the Court has simply said that he knew the accused persons. After closing the shop he had put the lock on the doors. The next morning he found that the lock was broken, an amount of Rs. 37.40was stolen and the two sarees were also missing. He further stated that he lodged the report (Ex. P-1) at the police station. I do not know as to why the prosecution did not enquire from this witness or put any questions relating to the identification proceedings. What I have referred to above is the sum total of the statements in the examination in chief. The witness nowhere says that he was called in the identification proceedings or he had identified the said sarees allegedly recovered from the possession of accused Santu.
7. P. W. 2 Ataldas did support the prosecution case by saying that from accused Chaitu 37.40 cash was seized while from accused Santu two sarees and an iron rod were recovered. He was, however, unable to identify the accused persons in the Court. On this aspect he is duly supported by P.W. 3 Ghasiya. P.W. 5 Vinod Tiwari is the person who had taken these two persons into custody and had seized certain articles from them. P.W. 6 Ramdas did not support the prosecution and stated before the Court that he did not know the accused persons. P.W. 7 Anjordas also did not support the prosecution and denied the arrest of the accused persons. P.W. 8 Pooran simply stated that the spot may and the Panchanama were prepared in his presence. P.W. 9 Mohan did not support the prosecution case nor did he state that any Panchanama was prepared in his presence.
8. P.W. 4 Suresh is not a Government Officer but is simply a trader in cloth and grocery. The kotwar had come to him demanding five sarees. He was also called by the police. The two sarees which were available with the police were mixed with the five sarees which were brought by this witness, thereafter according to him, the two sarees were identified by Ashok Kumar. According to this witness the sarees were rightly identified by Ashok Kumar.
9. For recording the conviction the two Courts below have relied upon the statements of P.W. 4 Suresh. I fail to understand that in absence of statements of Ashok Kumar (P.W. 1) that he identified the sarees in a duly constituted identification proceeding, how reliance could be placed upon the statements of a person who was a businessman and grocer and was simply saying that the sarees were identified by the original complainant. Present is not a case where Ashok Kumar was not available or his statements could not be recorded. One could understand the case of the prosecution that as the person who identified the sarees was not traceable or available for giving his statements before the Court, therefore, the statements of the person who conducted the proceedings be accepted. Present is a case where the original complainant did appear in the Court but did not speak even a single word about the identification of the sarees. It is trite law that the person who identifies the person or property has to state before the Court that he did identify the person or property in the identification proceedings. The statements of the person who conducts the identification proceedings, in fact, are corroborative evidence. The basic and primary evidence would be of the person who, in fact, identifies the articles.
10. In absence of any statement by Ashok Kumar that he identified the sarees it would be illegal to hold, placing reliance upon the statements of P.W. 4 Suresh that in the identification proceedings the sarees were rightly identified.
11. So far as recovery of the cash is concerned, the witnesses have said that the said amount was in form of two rupee notes or some coins of one rupee each. Nobody including the original complainant say that these notes or the coins had any special marks or were identified by the complainant. The prosecution though has proved the recovery of certain articles but has failed to prove that the said articles were stolen articles and were recovered from the accused persons, as articles of theft.
12. The two Courts below were unjustified in placing reliance upon the statements of P.W. 4 Suresh to convict the applicants. I am unable to agree with the findings recorded by the two Courts below.
13. For the reasons stated above, the findings recorded by the two Courts below are set aside. The conviction recorded and the sentence awarded to the applicants are set aside. The applicants are acquitted of the charges. They appear to be on bail, their bail bonds are discharged.
14. Criminal Revision allowed.