Madhya Pradesh High Court
Parvez @ Nakta vs The State Of Madhya Pradesh on 17 January, 2020
Author: Anand Pathak
Bench: Anand Pathak
1
THE HIGH COURT OF MADHYA PRADESH
SINGLE BENCH
(SHRI JUSTICE ANAND PATHAK)
CRA.No.249/2015
(Sabir @ Bhaiya Trektar Vs. State of M.P.)
CRA.No.292/2015
(Rohit Soni Vs. State of M.P.)
CRA.No.251/2015
(Ameer @ Hamja Vs. State of M.P.)
CRA.No.250/2015
(Parvez @ Nakta Vs. State of M.P.)
Shri S.K.Shrivastava, learned counsel for the appellants (in
CRA.No.250/2015 and CRA.No.251/2015).
Shri D.K.Budholiya, learned counsel for the appellants (in
CRA.No.292/2015 and CRA.No.249/2015)
Shri Sushant Tiwari, learned Public Prosecutor for the
respondent/State.
***********
JUDGMENT
[Delivered on this 17th day of January, 2020] With consent heard finally.
1. The instant criminal appeal under Section 374 of Cr.P.C has 2 been filed by the appellants against the order dated 17.03.2015 passed by Additional Sessions Judge, Sironj to the Court of Additional Sessions Judge, Sironj District Vidisha in S.T.No.331/2013 whereby appellants namely- Sabir @ Bhaiya Trektar, Ameer @ Hamja and Parvez @ Nakta have been convicted for the offence punishable under Section 458 of IPC and sentenced to undergo five years RI with fine of Rs.1,000/- each and under Section 392 of IPC and sentenced to undergo five years RI with fine of Rs.1,000/- each and appellant namely Rohit Soni has been convicted under Section 411 of IPC and sentenced to undergo two years RI with fine of Rs.1,000/- with default stipulations.
2. The brief facts of the case of prosecution are that complainant-Bharosi Kushwaha lodged the FIR stating that at about 1 am at midnight at agriculture field when the dog was barking, at that time three unknown persons came to complainant with covered face and asked the address of a person. When the complainant showed his ignorance and called his wife namely-Rajbai, and brother-in-law then and appellants went away. Next day in the morning when complainant came to know about the fact that articles (silver and gold) of Rs.82000/- are missing, he lodged the complaint.
3. After investigation, charge-sheet was filed. Thereafter, case 3 was received by the Sessions Judge for trial.
4. Appellants abjured their guilt. However, took defence of false implication.
5. Before the trial Court, prosecution examined the nine witnesses namely- Bharosi (PW-1), Smt. Rajbai (PW-2), Krishnagopal Mangal (PW-3), Bundel Singh (PW-4), Sandeep Shrivastava (PW-5), Ashok Yadav (PW-6), Krishnamohan Mangal (PW-7), Girish Tripathi (PW-8), Dinesh Prajapati (PW-9).
6. Evidence was led by the parties and after considering the evidence and submission of the parties, the trial Court found the appellants/accused namely Sabir @ Bhaiya Trektar, Ameer @ Hamja and Parvez @ Nakta guilty for the offence punishable under Sections 458 and 392 of IPC and found the appellant Rohit Soni guilty for the offence punishable under Section 411 of IPC. Therefore, against the judgment of trial Court appellants have filed this present appeal under Section 374 of Cr.P.C.
7. Learned counsel for the appellants submit that appellants have been falsely implicated in the case and trial Court committed grave error in convicting them ignoring the evidenced produced before the trial Court. The appellants in their defence submitted the evidence in relation to the earlier dispute among the parties, but aforesaid aspect has wrongly been declined by the trial Court. 4
8. Learned Pubic Prosecutor for the respondent/State opposed the prayer and prayed for its rejection.
9. Heard learned counsel for the parties and perused the record and documents appended thereto.
10. It is the case where appellants are suffering conviction for the offence punishable under Sections 458 and 392 of IPC (except appellant-Rohit Soni in CRA No.292/2015) and appellant Rohit Soni is suffering conviction for the offence punishable under Section 411 of IPC.
11. At the first instance, it is to be seen that whether the commission of offence under Section 458 of IPC was proved by the prosecution beyond reasonable doubt or not?
12. In the case in hand, FIR (Ex-P-1) in which complainant has narrated the events in following terms :-
"izdj.k lnj dk laf{kIr fooj.k bl izdkj gS fd fnukad 04@07@13 dks Qfj;knh Hkjkslh iq= Jh ?kklhjke dq'kokg mez 50 o"kZ fuoklh xzke fru?kkSM+k gky&d`".k xksiky eaxy dk [ksr cklksnk jksM fljksat us Fkkus ij mifLFkr gksdj fjiksZV ys[k djkbZ fd jkf= esa djhcu 1 cts mlds fuokl cklksnk jksM fljkst d`".k xksiky eaxy ds [ksr ij rhu vKkr cnek'k viuk eq¡g cka/ks vk;s rFkk pPpk ds ckjs esa iwNus yxs esjh iRuh o lkys ds tkXkus o dejs ls ckgj vkus ij cnek'kksa dk dejs esa vanj ?kql tkuk rFkk lksus pk¡nh dh jdes o udnh :i;s mBk ys tkus dh fjiksZV vafdr djkbZ Fkh ftl ij ls vijk/k dzekad 193@13 /kkjk 382 Hkk-n-fo- dk vijk/k iathc) dj foospuk dh xbZ Qfj;knh dh iRuh jktckbZ ds dFku ds vk/kkj ij vijk/k esa /kkjk 392 Hkk-n-fo- c<+kbZ xbZ eky eqyfte dh f'kuk[rh ds nkSjku lansgh vehj mQZ vetk ,oa ijost mQZ udVk ls iwNrkN djus ij mUgksaus vius lkFkh lkfcj mQZ HkS;k VsDVj ds lkFk feydj ?kVuk ?kfVr djuk crk;k rFkk ywVs x;s eaxy lw= fljkast ds jksfgr lksuh dks csp nsuk crk;k vfHk;qDrx.k vehj mQZ vetk] ijost mQZ udVk] lkfcj mQZ HkS;k gsDVj rFkk jksfgr lksuh ls vijk/k lnj dk ejfldk pkWnh dh dj/kksuh] ik;ys crkus ¼daxu½ o eaxy lw= cjken dj vijk/k esa /kkjk 411 vkbZ-ih-lh- c<+kbZ tkdj 5 vfHk;qDr dks fxj¶rkj dj ekuuh; U;k;ky; ds le{k is'k fd;k x;k tks U;kf;d fojks/k esa gS tIr 'kqnk ¼jde½ tsojksa dh f'kuk[rh lk{kh jktckbZ o cqansy flag ls djkbZ xbZ lgh igpkukA foospuk iw.kZ gksus lEiw.kZ foospuk ls vfHk;qDrx.kksa ds fo:) vijk/k /kkjk 392] 411 vkbZ-ih-lh- 25 vk;q/k vf/kfu;e dk fl) ik;k tkus ls vfHk;ksx i= dzekad 194@13 fnukad 13@08@13 rS;kj fd;k x;k tks U;k; gsrq lsok esa is'k gSA
13. In the FIR, complainant was the victim as well as eye-witness and he was the best person to narrate the events. He narrated the story in specific terms wherein he referred the fact that three persons with their covered face approached the complainant. Complainant Bharosi Kushwaha (PW-1) called his wife Rajbai (PW-2) as well as his bother-in-law Gurdev Singh (PW-4) from his house and at the time of incident, appellants walked around the house and went away. In his narration of FIR, he referred the fact twice that three accused persons were covering their face. Apparently no statement under Section 161 of Cr.P.C. is available on record or exhibited to suggest that their police statements were taken. However, Court statement of these witnesses were taken as Bharosi (PW-1), Smt. Rajbai (PW-2), Krishnagopal Mangal (PW-
3), Bundel Singh (PW-4), Sandeep Shrivastava (PW-5), Ashok Yadav (PW-6), Krishnamohan Mangal (PW-7), Girish Tripathi (PW-
8), Dinesh Prajapati (PW-9) respectively.
14. In his examination-in-chief, complainant -Bharosi Kushwaha (PW-1) nowhere referred that accused were covering their faces and 6 tried to improve upon the narration while trying to demonstrate that he saw accused over his field, but in para-3 of his cross- examination, he admitted that he lodged report against unknown persons and in his report, it is mentioned that three boys were covering their faces and also in police report, he referred the fact that all three persons roamed around his house and thereafter, went away. This fact makes the case doubtful because when the complainant himself was eye-witness and witnessed the incident since beginning, then such contradictions and variations assume importance.
15. Another loop in the case is omission of any Test Identification Parade at the instance of Investigating Officer. It was the duty of the Investigating Officer to conduct TIP under Section 9 of Evidence Act. If the TIP would have been held, then the identity of accused persons would had been ascertained then confusion crept into the story of prosecution could have been cleared.
16. In the case of Tahir Mohammad, Kamad Girendra Singh and Anr. Badri Singh and Ors. Vs. State of M.P. (1993) Supp 2 SCC 697, it has been held that once the accused are not identified then the dock identification of the accused cannot be relied upon for the purpose of conviction. Similar in the case of Umesh Kamat Vs. State of Bihar (2005) 9 SCC 200, it has been held that if the 7 identification of persons whose faces are covered, then dock identification alone cannot be relied upon to establish the identity of accused. Similarly, failure of investigating officer to hold TIP without any justification or belated investigation of witnesses in the Court, cannot be relied upon (See State Of Maharashtra Vs. Sukhdev Singh Alias Sukha, AIR 1992 SC 2100).
17. Here in the case, it is not the case of prosecution that complainant and his family knew the accused persons earlier. In para-13 of the statement of PW-1, he admitted the fact that he does not know the accused persons by name and prior to the incident, he had never seen those accused near the garden in which he was residing. He also admitted that he did not see the accused persons taking the jewelry from his house and he also showed his inability about the valuation of jewelry. When the accused were not known to the complainant and when he did not see them entering into the house and taking away the jewelry, then case of the prosecution slips further into the realm of doubt and suspicion. Possibility cannot be ruled out that it is a false case initiated at the instance of owner of the house Krishngopal Mangal (PW-3), because constantly suggestion has been given by the defence in respect of dispute existing between the accused persons and owner of the garden Krishngopal Mangal. Although suggestions were rejected by the 8 prosecution witnesses however, it is possible that to settle the score, case has been registered against accused persons.
18. From the documents and the evidence of prosecution witnesses neither the identity of the accused persons have been established nor their act of committing robbery has been established because from the evidence, it is nowhere established that they entered into the house of the complainant and on the knife point or on threat of instant hurt or by wrongfully restraining, committed theft.
19. Ingredients of robbery has been defined in Section 390 of IPC and said ingredients are apparently missing in the case in hand. Therefore, only on the basis of robbery of jewelry/articles from the possession of appellants, they cannot be fastened with liability of offence under Sections 458 and 392 of IPC because these are the substantive offence, but on the basis of recovery of jewelry/articles they can be held liable under Section 411 of IPC (See- Nagappa Dondiba Kalal Vs. State of Karnataka AIR 1980 SC 1753, Rampal Pithwa Rahidas and Ors. Vs. State of Maharashtra, (1994) Supp (2) SCC 73).
20. It is worth noticing that the fact that complainant could have recognized the accused persons from their voice, their mannerism or their any action because all the accused were covering their faces. If the complainant could have recognized them from their voice or 9 mannerism or body language as the case may be and if this aspect would have been referred in the FIR or in a Court statement then this piece of evidence would have been of some help to the prosecution but in the absence of TIP and in absence of such elaboration of identity of accused, it cannot be inferred conclusively that prosecution proved the case beyond reasonable doubt.
21. In the considered opinion of this Court, trial Court erred in convicting the appellants Sabir @ Bhaiya Trektar, Ameer @ Hamja and Parvez @ Nakta for the offence punishable under Sections 458 and 392 of IPC. They can only be held for the offence under Section 411 of IPC.
22. So far as other accused-Rohit Soni is concerned, in the statement of prosecution witness (PW-1), it has been specifically mentioned in the examination in chief itself that accused-Rohit Soni who was present in the dock, was not present at the time of incident, thereafter, trial court rightly convicted the appellant Rohit Soni only for the offence under Section 411 of IPC. Although at this juncture, when the case of prosecution renders doubtful for the offence under Sections 458 and 392 of IPC, then conviction under Section 411 of IPC also appears to stand on flimsy ground but since the articles/jewelry has been recovered from all accused persons, therefore, accused Sabir @ Bhaiya Trektar, Ameer @ Hamja and 10 Parvez @ Nakta are liable for conviction for lesser offence under Section 411 of IPC. Therefore, they are acquitted from the charge of offence under Sections 458 and 392 of IPC to convict for the offence under Section 411 of IPC on the basis of recovery of article/jewelry.
23. Appellant Rohit Soni also deserves to be convicted for the offence under Section 411 of IPC on the basis of recovery of article/jewelry.
24. Looking to the facts situation of the case as well as the fact that for last more than 6 years appellants are suffering sentence of prosecution and no orders of conviction have been placed before this Court to conclude that they are habitual offender and looking to the provisions contained in Section 411 of IPC wherein either jail sentence or fine or both can be awarded as well as looking to the fact that appellant Ameer @ Hamja already suffered 42 days of jail sentence, Sabir @ Bhaiya Trektar-39 days, Parvez @ Nakta 212 days and Rohit Soni 21 days of jail sentence and, therefore, looking to the over all facts situation, this Court modifies the jail sentence of all the appellants and they are convicted for the offence under Section 411 of IPC and so far as jail sentence is concerned, it would be modified to the extent of already undergone and instead of jail sentence, they have to pay fine of Rs.25,000/- each and they shall 11 have to pay the same individually within three months from the date of passing of this order and in case of any default in payment of fine, they shall have to serve the jail sentence of six months. The said amount shall be paid to the complainant Bheekam Singh (PW-
1) and trial Court shall ensure the said payment to the complainant. The bail bonds and surety shall remain in force till the payment of fine amount and if fine amount is not paid within three months then trial Court shall take steps for causing them to serve jail sentence of six months and if fine is deposited by the accused/appellants then their bail bonds shall stand discharged thereafter.
25. Criminal appeal stands allowed/modified to the extent referred above.
(Anand Pathak) Judge Ashish* ASHISH CHAURASI A 2020.01.1 7 19:12:10 +05'30'