Madhya Pradesh High Court
Akil vs The State Of Madhya Pradesh on 27 September, 2019
1
HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Single Bench: Hon'ble Ms. Justice Vandana Kasrekar
Cr.A. No.4101/2018
Aejaaz S/o Shahzaad
vs.
State of M.P.
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Ms. Archana Kher with Shri Sachin Parmar, learned
counsel for the appellant.
Shri Lokesh Mehta, learned Government Advocate for the
respondent/State.
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Cr.A. No.5262/2018
Akeel S/o Arif and another
vs.
State of M.P.
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Shri Surendra Tuteja, learned counsel for the appellant
No.1.
Ms. Archana Kher with Shri Sachin Parmar, learned
counsel for the appellant No.2.
Shri Lokesh Mehta, learned Government Advocate for the
respondent/State.
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JUDGMENT
(Delivered on 27/09/2019) The appellants have filed these appeals challenging the judgment dated 01/05/2018 delivered by IV ASJ, Dewas in S.T. No.191/2017 whereby convicted the appellants under Section 392 of IPC sentencing them to undergo 6-6 years RI with fine of Rs.2,000/-, Rs.2,000/- with default stipulations.
2. According to the prosecution case, complainant 2 Omprakash has lodged a report alleging that on 17/10/2017 he had purchased some goods from Jawahar Chowk and at about 7 O'clock on the way one person stopped and took the lift. In the meanwhile, the second person also came there and they took the knife and covered mouth of the complainant and both of them had snatched the wallet of the complainant which contains Rs.10,000/-, Aadhar card, PAN card and driving license. On the basis of the report, the police registered crime No.302/2017 for the offence under Section 392 of the IPC. After investigation, the charge-sheet was filed before the Court. Prosecution has examined as many as 9 witnesses and the appellants were charged, tried and convicted as stated in para 1 above.
3. Learned counsel for the appellants submit that the learned Court below has failed to appreciate the facts and circumstance of the case and has thus, erroneously convicted the appellants. It is argued that the learned trial Court ought to have taken into account the grave discrepancies, contradictions and omissions in the statements of the witnesses and ought to have concluded that the guilt of the appellants was not established beyond reasonable doubt. It is stated that a test identification parade was conducted during investigation, in which the complainant could not identify the appellants on 01/11/2017, which is took place after 14 days of the incident. It is urged that prosecution has failed to prove that the arrest and seizure were reported to the concerned Magistrate within 24 hours. It is prayed that in the interest of justice the judgment and sentence passed by the learned Court below may be set- aside by acquitting the appellants and by allowing the appeals.
34. Learned Public Prosecutor has submitted that after due appreciation of the evidence on record, learned Court below has found the appellants guilty for the offence and no illegality has shown against the appellants. In such circumstances, he prayed for dismissal of the appeal.
5. I have heard learned counsel for both the parties and perused the record and also the statements of witnesses recorded by the trial Court during trial.
6. Section 392 of IPC reads as under :-
"392. Punishment for robbery -- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
7. For the sake of convenience and to clear each and every aspect of the case, three basic and material ingredients are very important which goes to the root of the case and to make this Court easier to come to a definite conclusion in the present case; firstly, regarding Test Identification Parade, secondly; the seized currency note in the alleged offence and thirdly and lastly; regarding recovered purse from the possession of the appellants.
8. (1) The learned trial Court in its judgment in para 17 it is very clearly held that while conducting the Test Identification Parade, no Police Officer was present during that period and the complainant has identified one of the accused person and could not identify the other two accused persons. In his statement also the complainant has very categorically stated 4 that he has identified one person only but unable to identify the other accused persons. In this premises Hon'ble Apex Court in case of Kanan and others vs. State of Kerala (1979) 3 SCC 319 has held that with due respect, we feel that the High Court erred in law in taking this view. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his powers of observation. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to an unknown person whom the witness may have seen only once. It no T.I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In another judgment Hon'ble Apex Court in Dana Yadav Alias Dahu and others vs. State of Bihar (2002) 7 SCC 295 it has been observed that evidence of identification of accused before court should not, ordinarily, form the basis of conviction unless corroborated by previous identification in TI parade or any other evidence, though there are exceptions to this rule. It is further observed that identification before court should not normally be relied upon, if the name of accused is neither mentioned in FIR or before Police.
9. (2) Now, so far as the second issue is concerned, the currency notes recovered from the appellants, no specification has been given by the complainant either in the FIR or before the Court that the recovered currency notes are the same currency notes, which were seized from the appellants during investigation. High Court of Karnataka in the matter of 5 Chandrappa Hanumantappa Kolar and ors. vs. The State of Karnataka has observed that the police also want to connect the accused persons on the basis of recovery of some cash amount, as rightly argued by the learned counsel, an amount of Rs.4,84,000/- alleged to have been snatched by the dacoits at the time of committing dacoity, in the absence of any materials in the first information report or in the evidence of the prosecution witnesses by giving descriptions of the currency note numbers, it cannot be said that the recovered currency notes are the same currency notes which were the subject matter of dacoity.
10. (3) The third and last issue regarding the purse seized from the appellants by the police during the period of investigation. While deposing the statement before the Court, the complainant some time said that the colour of purse is Black while some time he stated that colour of purse is Grey. Thus, no definite opinion has been given by the complainant regarding identification of the purse. It is also to be seen that if the goods looted were not produced before the Court, no offence of dacoity is made out. In the case of Basantilal vs. State of M.P. 1990 (I) MPWN 222 this Court held that case of the prosecution is non-production of the property and their identification as looted property. The goods were produced in Court during investigation and released on Superdginama. The goods were thus being capable of being produced tin Court. It is, however, strange that during trial the goods allegedly kept by Basantilal at Sanjay's place were neither produced nor identified by any witness as property in respect of which robbery was committed. The appellants could not be connected 6 with the goods on the strength of identification outside the Court by witnesses. The substantive evidence as to identity of the goods to connect the appellants with crime was their identification in Court and not explanation as to why this was not done when the goods were capable of being produced in Court, on the statements of witnesses, the appellants connections with the crime, cannot be said to be satisfactorily established.
11. Thus, after going the entire evidence recorded by the trial Court and judgments discussed above, it is crystal clear that there is no direct evidence against the appellants and circumstantial evidence is not conclusive. Both identification of persons and identification of articles do not give a definite result that none else but the appellants have committed the alleged robbery. Circumstances put forth by the prosecution to prove guilt of the accused, could not be established by the evidence produced by the prosecution and also chain of the circumstances could not be completed. The evidence adduced by the prosecution falls short of reliability and is unsafe to base conviction. Learned trial Court has not appreciated the evidence in the right perspective and has wrongly relied on such evidence. The prosecution case is completely doubtful. The trial Court has committed error in not extending benefit of doubt to the appellants. Therefore, the judgment passed by the learned trial Court is not sustainable in the eyes of law. Consequently, the appeals filed by the appellants succeeds and are hereby allowed. Impugned judgment dated dated 01/05/2018 delivered by IV ASJ, Dewas in S.T. No.191/2017 whereby convicted the appellants under Section 392 of IPC sentencing them to undergo 6-6 years RI with fine of Rs.2,000/-, Rs.2,000/- with default stipulations is hereby set-
7aside. The appellants are acquitted from the charge under Sections 392 of the IPC. Their bail bond stands discharged. They be set at liberty forthwith, if not required in any other case. Fine amount, if deposited, be returned to them.
12. Order of the trial Court regarding property is hereby confirmed.
C.C. as per rules.
(Ms. Vandana Kasrekar) Judge Aiyer* Digitally signed by Jagdishan Aiyer Date: 2019.09.30 11:03:20 +05'30'