Madhya Pradesh High Court
Jalamsingh vs State Of M.P. on 13 March, 2002
Equivalent citations: 2002CRILJ2586, 2002(3)MPHT537
ORDER S.L. Kochar, J.
1. This revision has been filed by the applicant against the judgment and finding dated 19-12-2001 passed by the VII Addl. Sessions Judge, Indore in Cr. A. No. 239/2001 arising out of the judgment and finding dated 17-8-2001 passed by the Judicial Magistrate First Class, Indore in Criminal Case No. 1283/85 affirming the conviction and sentence of three years' R.I. and fine of Rs. 2,000)/- under Section 394, IPC and fine of Rs. 500/- under Section 342, IPC.
2. The prosecution case in short before the Trial Court was that on 2-2-95 at 10.30 PM, Surendra Kumar Pradhan proceeded from Hanuman Kadel Dharmashala, Indore to Kastur Talkies. On the way at a betel shop, two persons were standing from whom, he inquired about the location of Kastur Talkies. They asked him, from where he had come. The present applicant also disclosed his name and about the residence of his sister-in-law at Kishangarh, Ajmer. The applicant Jalamsingh offered him betel. After ten minutes of chewing the betel leave, he felt for going to answer the call of nature. The applicant took him to the house of co-accused Ravindra. After answering the call of nature, he was offered for taking liquor which was refused by him. It is further alleged by the prosecution that the applicant levelled allegation against the complainant that he had come to Indore as a spy and also disclosed himself as man of CID. The co-accused Ravindra assaulted him by fists. He was tortured for a long time by beating as well as burning his skin with hot iron rod. His forty five rupees and a wrist watch were also robbed by them. The accused persons demanded Rs. 2000/- more for releasing him and got written a letter in the name of Shivshankar alias Mahesh Pradhan and Laxminarayan Pradhan who were the companions of the complainant stayed with him in the Dharmashala. Thereafter, both had taken the complainant in an autorikshaw at the Dharmashala where Surendra Pradhan (complainant) disclosed about the incident and the applicant and co-accused Ravindra were caught then and there. They were taken to the Police Station where the First Information Report was lodged, and Crime No. 44/93 for the offences under Sections 341, 323, 324, 342, 394 and 506 read with Section 34 of the Indian Penal Code was registered and both the accused persons were arrested. From the possession of the co-accused Ravindra a wrist watch and forty five rupees were recovered vide memorandum Ex. P-4. The complainant was medically examined. His medical report is Ex. P-8. The doctor found two burn injuries over mandible and left cheek and a contusion.
3. After usual investigation, charge-sheet was filed. The applicant had abjured the guilt. According to the applicant, he was in Flying Squad duty of D.R.P. Lines. He has denied his presence on the spot and submitted that he was on duty with Flying Squad of Forest Department. In his defence, he examined three witnesses namely, Ramgopal, Savita and Ganesh Verma. The learned Trial Court, after examining the prosecution and defence witnesses as well as hearing both the parties, convicted the applicant for the offences under Sections 342, 324 and 394. In appeal, the applicant was acquitted from the charge under Section 324 of the IPC and his conviction was upheld for the offences under Sections 394 and 342 of the Indian Penal Code.
4. Shri Jaisingh, Advocate appearing for the applicant and Shri G. Desai, learned Dy. Advocate General for the non-applicant/State have been heard. According to the learned Counsel for the applicant, why the applicant and co-accused were not arrested immediately on 2-2-95 and that shows that the First Information Report was in anti-date in time. There was no recovery from the possession of the present applicant. It has also been stated that the investigation was tainted and a concocted one. When the accused persons were taken to the Police Station, why they were not immediately arrested. Their arrest has been shown on 3-2-95. The seized articles wrist watch was shown to the witnesses. Therefore, its recovery and identification looses its sanctity. On the other hand, the learned Dy. Advocate General submitted that the Courts below have considered the matter in detail in its proper perspective and a pure question of fact is involved in which, this Court should be slow in disturbing the finding of fact and it is a case where the public servant like Constable-applicant was involved and there is no reason for the complainant/victim to implicate the accused persons falsely.
5. After lodging of the report at the Police Station, the police immediately started investigation and sent the victim for medical examination, and recorded the statements of five witnesses. Thereafter, memorandum of co-accused Ravindra was recorded and spot map was also prepared. All these proceedings must have taken time and after satisfying themselves for making out a case against the applicant, the applicant and the co-accused were arrested. In the present case, the question of identification would not arise because the accused persons were caught and taken to the police and remained in the company of the complainant right from going to their house and reaching at the Police Station. The applicant remained in their company for a long period in continuation. So the question of holding identification parade would not arise. The Courts below have discussed this matter in great detail. The Appellate Court has also considered this matter in para 6 along with the case law cited by the Counsel for the applicant and has rightly held that there was no infirmity in the prosecution case for not arresting the applicant and co-accused in the night of 2-2-95 and there was no need of holding the test identification parade.
6. The Courts below have also rightly rejected the defence of the applicant adduced by him by examination of three witnesses about his plea of alibi. In this regard, the best evidence could be the Duty Register and Duty-Certificate. But the same has not been produced by the applicant or were called from the concerned department. The oral evidence of defence witnesses Ramgopal and Ganesh Verma about the presence of the applicant with the Flying Squad of Forest Department has rightly been disbelieved by both the Courts below. The defence witness Ramgopal has stated that after 1995 he met the applicant Jalamsingh for the first time. This witness was not summoned by the Court. He appeared voluntarily with the accused-applicant.
7. The Supreme Court in Thakur Prasad v. State of M.P. (AIR 1954 SC 30) held that--
"The plea of alibi involves a question of fact and when both the Courts below concurrently found that fact against the accused, the Supreme Court cannot, on an appeal by special leave, go behind that concurrent finding of fact."
In the present matter, the applicant is seeking reappreciation of whole evidence by this Court in revisional jurisdiction, wherein the scope is very limited.
8. The statements of the complainant is duly corroborated by the FIR as well as medical report (Ex. P-8) and his participation is established on the basis of the statements of the complainant and other witnesses. Learned Counsel for the applicant has relied upon a decision reported in AIR 1958 MP 55 (State of Madhya Pradesh v. Babulal Ramratan and Ors.) and pointed out that when the investigation was tainted the whole prosecution case should be discarded. There cannot be denial for this proposition prepounded in this judgment, but on facts both the Courts below have not found any illegality, irregularity or concoction in the investigation. The investigation was also not tainted one. Therefore, the question for disbelieving the prosecution witnesses would not arise. A very crucial point required to be answered by the applicant that as to why the complainant who is a foreigner to him would falsely implicate the applicant a police constable.
9. Learned Counsel for the applicant submitted that a lenient view may be taken in the matter of sentence, but looking to the facts and circumstances of the case and the accused being a police constable, he does not deserve any sympathy.
10. After perusal of the judgments passed by the two Courts below as well as the evidence available on record, this Court is satisfied that the appellant was rightly held guilty for the offences under Sections 342 and 394 of the Indian Penal Code and rightly sentenced thereunder.
11. In view of the foregoing discussion this revision fails and is hereby dismissed. The judgment passed by the Appellate Court is maintained and the conviction and sentence passed under Sections 342 and 394 of the Indian Penal Code are upheld. The applicant is on bail. His bail bonds shall stand cancelled and he is directed to surrender to his bail before the Trial Court for serving out the remaining sentence.