Madhya Pradesh High Court
Ashok Kumar & Anr. vs The State Of M.P on 17 October, 2012
Author: N.K. Gupta
Bench: N.K. Gupta
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Criminal Appeal No.389 of 1997
Criminal Appeal No.566 of 1997
IN THE HIGH COURT OF MADHYA PRADESH,
JABALPUR
SINGLE BENCH
HON'BLE SHRI JUSTICE N.K. GUPTA, J.
Criminal Appeal No.389/1997
Ashok Kumar and another
Vs.
State of Madhya Pradesh
Criminal Appeal No.566/1997
Pyarelal
Vs.
State of Madhya Pradesh
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Shri A. Usmani counsel for the appellants Ashok Kumar and
Birendra alias Pappu.
Smt. Durgesh Gupta, counsel for the appellant Pyarelal.
Shri G. S. Thakur, Panel Lawyer for the respondent-State.
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JUDGMENT
(Delivered on the 17th day of October, 2012) Since both the appeals arises out of the judgment dated 31.1.1997 passed in Sessions Trial No.269/1988 therefore, both the appeals are hereby disposed off by a common judgment.
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Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997
2. The appellants have preferred these appeals against the judgment dated 31.1.1997 passed by the learned IInd Additional Sessions Judge, Katni in ST No.269/1988 whereby the appellants were convicted for offences punishable under Section 395 of I.P.C and sentenced for 7 years rigorous imprisonment with fine of Rs.500/- and in default of payment of fine six months rigorous imprisonment was also directed.
3. The prosecution's case, in short, is that in the intervening night of 21st - 22nd October, 1996 the complainant Laxman Prasad was sleeping in the courtyard of his house situated at Village Rohaniya (Police Station Vijayraghavgarh, District Jabalpur). At about 11.00 p.m in the night some culprits jumped inside the courtyard from the roof of the house. They had fire arms, sticks etc. and thereafter, they started assaulting the various persons and demanded for the money. They tried to assault the victim Laxman Prasad but he ran away from the spot. Similarly so many male persons left the spot due to fear of the culprits and the culprits opened the boxes by breaking the locks and robbed silver and golden ornaments. They snatched golden nose rings and other ornaments from the housewives. After getting the information some Police Officers went to the spot and Dehati Nalishi Ex.P/12 was recorded with the help of the complainant Laxman Prasad. Injured persons were sent to the hospital for 3 Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997 their medico legal examination and treatment. Phokali (PW12) was injured in the incident. After some time the appellants were arrested and they were interrogated by the Police. The appellants gave the information about various ornaments. They had confessed before the Police about the robbery and told that all the silver ornaments were dissolved and they got silver pieces from the concerned persons. Some silver pieces and fire arms along with the cartridges were seized from all of the appellants. From the appellant Pyarelal one golden addi (locket with a chain) was also recovered. An identification parade was arranged against the appellants and they were duly identified by the victims Rama Shankar (PW10), Ramwati Bai, Kalabai (PW4) and Phokali (PW12). Identification proceeding was also arranged for identification of the golden addi and a memo Ex.P/3 was prepared. After due investigation a charge sheet was filed before the ACJM Katni who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the IInd Additional Sessions Judge, Katni.
4. The appellants abjured their guilt. They did not take any specific plea in defence but they have stated that they have been falsely implicated in the matter. After their arrest so many cases were lodged by the Police against them. No defence evidence was adduced.
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Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997
5. After considering the prosecution's evidence the learned Additional Sessions Judge acquitted the appellants from the charge of offence punishable under Section 397 of I.P.C but, convicted them for offence punishable under section 395 of I.P.C and sentenced as mentioned above.
6. I have heard the learned counsel for the parties.
7. The learned counsel for the appellants have submitted that the appellants were falsely implicated in the matter. Since they were arrested in other cases so many cases were lodged against them. No identifiable robbed property was seized from any of the appellants. The golden addi alleged to be seized from the appellant Pyarelal was not identified by the owner/victim. Test identification parade was arranged by the Police itself. The Tahsildar Gothiya was not examined in the case and therefore, test identification parade could not be proved. There is no evidence by which the appellants could be convicted for any offence and therefore, it is prayed that the appellants may be acquitted.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeals filed by the appellants can be accepted ?
9. It is apparent that from the Dehati Nalishi Ex.P/12 no named FIR was lodged against the appellants. Sahodra Bai (PW5) and Kala Bai (PW4) have stated that they could 5 Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997 identify the appellant Pyarelal at the time of incident but they did not give such statement to the Police. Neither name of the appellant Pyarelal was mentioned in the FIR or told by these witnesses in the case diary statement and therefore, the statements of Kalabai and Sahodra Bai as given before the trial Court are nothing but an after thought and therefore, it cannot be said that the appellant Pyarelal was identified at the time of crime. On the contrary if he was known to the witnesses then a named FIR was to be lodged against him. The entire case depends upon the circumstantial evidence.
10. Only two circumstances are alleged to be established by the prosecution. Firstly, that the robbed properties were seized from the appellants and secondly the appellants were duly identified by the various victims in the test identification parade. So far as the seizure memo under Section 27 of the Evidence Act is concerned, the SHO Shri G.K. Tiwari (PW15) has tried to prove them. However, the independent witnesses to such memos and seizures turned hostile. Sonelal (PW6) and Shivdayay (PW13) have turned hostile. Discussions relating to seizure and memo under Section 27 of the evidence Act is not material in the present case. According to the investigation officer, seizure of fire arms and pieces of silver was done from the various appellants. By seizure of the fire arms it cannot be said that those were the same fire arms which were used in the crime. 6
Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997 Similarly any silver ornament which is dissolved and converted into a piece of silver, then by seizure of a piece of silver it cannot be said that it was from the same ornament which was robbed by the appellants. Only the importance was of seizure of addi which was seized from the appellant Pyarelal. According to the fIR that addi was robbed from Kala Bai (PW4). An identification memo Ex.P/3 was recorded for identification of that addi. In that memo it is mentioned that addi was identified before Surendra Singh by Kala Bai (PW4) whereas Surendra Singh (PW9) as well as Kala Bai (PW4) did not support the identification proceedings Ex.P/3. Kala Bai (PW4) in para 5 of her evidence has stated that no identification of that golden ornament addi took place before her. She was declared hostile for that point but, she did not confirm the identification and therefore, by failure of identification proceedings Ex.P/3 it cannot be said that any identifiable property was seized from the appellants or any robbed property was found with the appellants.
11. So far as the test identification parade is concerned it was arranged by Shri Gothiya, Tahsildar but, Shri Gothiya was not examined. Badri Prasad (PW1) and Surendra Singh (PW9) were examined as witnesses to the identification parade but, they could not confirm that parade was in a proper manner. Surendra Singh has stated in an omnibus manner about the parade but, Badri Prasad Sarpanch has 7 Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997 accepted that the persons who, were lined up in the parade were not having similar faces and different clothing.
12. The victim Rama Shankar has stated that at the time of identification the accused persons were handcuffed and he identified them before the Police authorities. Phokali (PW12) has stated that he identified those persons who were identified by the family members of Ram Kripal. Similarly Kala Bai could not say specifically about the identification of the appellants. By evidence adduced by the various witnesses it is apparent that the identification parade was not arranged in the jail. The appellants were shown to the various witnesses when they were in the custody and therefore, it was not difficult for them to identify the appellants in the test identification parade. The appellants were of age group of 32-34 and 23-25 years but according to the memo Ex.P/1 it appears that some persons aged 58 years were also added in the line whereas some persons of tender age of 18 years were also mixed in the identification parade and therefore, it was not difficult for the victims to trace the appellants in such identification parade. Also it is clear from the evidence that Tahsildar Gothiya was not examined and virtually the identification parade was arranged by the police itself and therefore, it is not a legal identification parade in the eye of law therefore, identification parade done against the appellants has no meaning. If some persons are arrested 8 Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997 and shown to the victims then it was easy for them to identify them either in the identification parade or in the Court.
13. Under such circumstances, where there is no named FIR lodged against the appellants, they were not known to the victims prior to the incident, no robbed property was found to be seized from the appellants, no legal identification parade was arranged and therefore, it cannot be said that the appellants were identified by the victims. Under such circumstances, there is no evidence to say that the appellants were the persons who committed the dacoity in the house of the victims. The learned Additional Sessions Judge has erred in convicting the appellants for offence punishable under section 395 of I.P.C. They could not be convicted for either offence punishable under Section 395 of I.P.C or any inferior offence of the same nature for example Section 394 or 392 of I.P.C. Hence the appeals filed by the appellants are acceptable and consequently both the appeals are accepted. The conviction as well as the sentence directed against the appellants for offence punishable under Section 395 of I.P.C is set aside. They are acquitted from all the charges appended against them. They would be entitled to get the fine amount back if they have deposited the same before the trial Court.
14. The appellants are on bail. Their presence is no more required and therefore, it is directed that their bail bonds shall stand discharged.
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Criminal Appeal No.389 of 1997 Criminal Appeal No.566 of 1997
15. Copy of the judgment be sent to the trial Court along with its record for information and compliance.
(N.K.GUPTA) JUDGE 17/10/2012 bina