Madhya Pradesh High Court
Kamlesh @ Lature Jatav vs State Of M.P on 30 March, 2019
1 CR.A.243/2013, 172/2013 & 137/2013
High Court of Madhya Pradesh
Bench at Gwalior
SINGLE BENCH: Hon.Shri Justice Vivek Agarwal
Criminal Appeal No.243/2013
1. Kamlesh @ Latoore Jatav
S/o Shri Mijju Jatav, Aged
25 years, R/o Adampur, at
present Premnagar, Dabra
District Gwalior.
2. Jitendra Kushwah @ Jeetu
S/o Pratap Singh Kushwah,
Aged 22 years, R/o Shanti
Nagar, Hanuman Danda,
Dabra, District Gwalior.
...Appellants
Versus
State of M.P. through Police
Station Dabra District Gwalior.
....Respondent
Criminal Appeal No.172/2013
Rafik @ Rakiya S/o Shri
Ismaile Khan Jatav, Aged
about 22 years, Occupation -
Labour, R/o Jangipura, P.S.
Dabra District Gwalior.
...Appellant
Versus
State of M.P. through Police
Station Dabra District Gwalior.
....Respondent
&
Criminal Appeal No.137/2013
Anju @ Chand Khan S/o
Baseer Khan, Aged 22 years,
R/o Jangipura, Dabra, District
Gwalior.
...Appellant
2 CR.A.243/2013, 172/2013 & 137/2013
Versus
State of M.P. through Police
Station Dabra District Gwalior.
....Respondent
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Cr.A.No.243/2013 :
Shri V.K.Agrawal, learned counsel for the appellant No.1
from Legal Aid.
Shri Purshhottam Rai, learned counsel for the appellant
No.2.
Shri Vikrant Sharma, learned Public Prosecutor for the
respondent/State.
Cr.A.No.172/2013 :
Shri Rajesh Shukla, learned counsel for the appellant.
Shri Vikrant Sharma, learned Public Prosecutor for the
respondent/State.
Cr.A.No.137/2013 :
Smt.Uma Kushwah, learned counsel for the appellant.
Shri Vikrant Sharma, learned Public Prosecutor for the
respondent/State.
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Whether approved for Reporting :
JUDGMENT
(Delivered on this 30th day of March 2019) Since all the three appeals arise out of one common judgment, therefore, they are being disposed of by this common judgment.
2. These three Criminal Appeals have been filed under Section 374 of the Code of Criminal Procedure originating from the common judgment dt.19.02.2013 passed by the Special Judge, M.P.D.V.P.K.Act, Dabra, District Gwalior, 3 CR.A.243/2013, 172/2013 & 137/2013 whereby in Sessions Case No.13/2012 - State of M.P. Vs. Anju @ Chand Khan and others/appellants have been convicted under the provisions of Section 394 of IPC with seven years' R.I. and fine of Rs.500/- each. They have also been convicted under the provisions of Section 11/13 of M.P.D.V.P.K.Act with seven years' R.I. and fine of Rs.500/- each and both the sentences are to run concurrently. It is also mentioned that in case of default of payment of fine, each of the accused will undergo two months' additional R.I.
3. Learned counsel for the appellants submit that as per the prosecution story, on 15.02.2012 complainant Suresh Kumar Shakya had brought a truck filled with ply from Delhi. He had parked said truck at the gate of his owner and had left helper Deendayal Jatav on the truck and was walking towards his house at about 1.00 a.m. When he reached opposite to house of Happy Sardar, then two persons aged about 20-22 years caught hold of him and asked him to shell out whatever was in his possession. He had given Rs.6800/- and two mobile phones, when according to him, two persons armed with Baka hit him on his head and on his right leg respectively and thereafter the accused ran away towards Deedar Colony. He came back to 4 CR.A.243/2013, 172/2013 & 137/2013 the truck and informed his Seth and Munim about the incident and thereafter had approached the Police Station Dabra where Crime No.117/2012 was registered under the provisions of Section 394 of IPC and Section 11/13 of M.P.D.V.P.K.Act.
4. It is submitted that in the TIP, Jitendra Kushwah @ Jeetu was not identified by the complainant, therefore, as far as Jitendra @ Jeetu is concerned, his conviction merely on the basis of recovery of Baka is not sufficient, inasmuch as as per TIP (Ex.P/3), Jitendra was not identified. For other accused, it is submitted that TIP was conducted on 25.5.2012, whereas date of arrest of Anju @ Chand Khan is 28.2.2012 vide Ex.P/8 and that of Rafik @ Rakeeb is also 28.2.2012 vide Ex.P/9 and that of Kamlesh @ Latoore is also 28.2.2012 vide Ex.P/10. It is submitted that merely on the basis of memorandum (Ex.P/11) recorded by Anju @ Chand Khan and one given by Rafik vide Ex. P/12, all the appellants have been convicted, whereas the fact of the matter is that there was no occasion to convict all the accused persons specially when they were not involved in the commission of crime.
5. It is also submitted that even Jitendra Kushwah was 5 CR.A.243/2013, 172/2013 & 137/2013 arrested on 14.3.2012 and therefore there was no occasion for the prosecution to carry out TIP after two months.
6. Learned counsel for the appellants has taken this court through the evidence of prosecution witnesses and it is submitted that Suresh Kori (P.W.1) has admitted that he had not identified Jitendra Kushwah @ Jeetu before the Tahsildar who had conducted TIP. Thereafter doc identification before the court of Tahsildar looses its significance because once Jitendra has not been identified in TIP, then such identification before the court after lapse of eight months' time from the date of arrest and more than nine months from the date of incident has no meaning. It is also pointed out that in fact TIP itself has no meaning in the eye of law under the facts and circumstances of the case, inasmuch as in para 5 of his cross examination, Suresh Kori (P.W.1) has admitted that on the next day of the incident one of the accused was caught hold of and thereafter P.W.1 was called at the police station. On the basis of arrest of such one person, other boys were arrested and he was called at the police station and was asked as to whether they are the same boys and then he had identified them at the police station.
7. It is submitted that as far as arrest of one of the 6 CR.A.243/2013, 172/2013 & 137/2013 accused on next day of the incident is concerned, there is no such arrest on the record. Secondly, when police had already shown the accused persons at the police station to Suresh Kori (P.W.1), then doc identification looses its significance and therefore all the accused persons need to be acquitted.
8. Learned counsel for the appellant submits that as per x-ray report (Ex.P/16), no bony injury was found on the body of the complainant Suresh Kumar.
9. Learned Public Prosecutor on the other hand submits that there is no need to interfere with the conviction of any of the accused persons despite the fact that FIR was lodged against four unknown persons and there are certain technical slippages in the TIP, which was conducted but vide Ex.P/4 one mobile of G Nine company, as has been mentioned in the FIR, was seized from the possession of Kamlesh. Similarly, another mobile of Samsung make, as has been mentioned in the FIR, has been recovered from Anju @ Chand Khan vide seizure memo Ex.P/5. It is pointed out that there is recovery of sum of Rs.1,000/- from the possession of Rafik vide seizure memo dt.29.2.2012 (Ex.P/6), which was recovered from the room inside the house of the accused Rafik. Similarly, a baka of iron was recovered from 7 CR.A.243/2013, 172/2013 & 137/2013 the house of Jitendra vide Ex.P/7 and therefore on the basis of recovery itself conviction of all the accused can be sustained and there is no need for any indulgence. It is also submitted that as per Ex.P/15, complainant Suresh Kumar had sustained one incised wound measuring 3.5 x 1 cm. x bone deep on forehead right side of skull, another incised wound measuring 1/2 x 1/2 x bone deep on lateral aspect of right ankle and another bruise measuring 2 cm. x 1 cm. on inner side of the lower lip right side. It is submitted that all the injuries were caused by hard and blunt object.
10. It is also submitted that complainant had identified both of his mobile phones and they were marked as Article A/1 and A/2 and there is no dispute about such mobile phones.
11. Learned counsel for the appellants submit that there is contradictions in the prosecution evidence and the witness of seizure namely; Gyan Singh (P.W.3) has turned hostile. He has not supported the recovery of Rs.1000/- from the possession of Rafik. It is also pointed out that all the witnesses of seizure are pocket witnesses of the prosecution. It is further submitted that there is no blood stain on the Baka which was recovered from the possession of Jitendra 8 CR.A.243/2013, 172/2013 & 137/2013 Kushwah and no FSL was conducted on the Baka to report whether it contained any human blood stains or not.
12. It is also submitted that as per the testimony of Banwari (P.W.6), who is Munim at the place of Seth of the complainant, inasmuch as he deposed that Suresh had informed about loot of Rs.8200/-, whereas Suresh has given such figure tobe Rs.6800/- in the FIR. It is also submitted that another witness of seizure, namely; Maniram (P.W.7) has admitted that he has not seen house of RafiK. Police had brought him back from Gali of Rafik and he had not gone inside the house of Rafik. This admission clearly reveals that he is a pocket witness who had signed as per the dictate of police and no recovery has been made from the house of Rafik in front of this witness, inasmuch as, as per the seizure memo (Ex.P/6), recovery of Rs.1000/- in the shape of 10 notes of Rs.100/- each has been made from the inside room of the house of Rafik and this witness has not been supporting the prosecution witness Maniram (P.W.7). It is also submitted that Dr.Harish Arya (P.W.8) submitted that if somebody strikes with sharp object, then injuries, as are mentioned in Ex.P/15, can be sustained by such person.
13. After hearing arguments of the learned counsel for the 9 CR.A.243/2013, 172/2013 & 137/2013 parties and going through the material on record, it is apparent that P.S.Tomar (P.W.9) T.I. has admitted in para 7 that he had arrested Jitendra at Police Station Dabra. It is also true that except for one Baka no recovery has been made from Jitendra. It is also true that Jitendra has not been identified in the TIP by the complainant. It is also true that both the witnesses for seizure, which took place on 22.9.2012 and 14.12.2012 are same. This demonstrates that the same witnesses were treated as pocket witnesses for 14.3.2012 and there is no explanation for absence of any independent witnesses on 14.3.2012 in relation to Jitendra Kushwah. Therefore, this court is of the opinion that as per the material, which has come on record in evidence, since Jitendra Kushwah has not been identified in the TIP and recovery made from Jitendra could not be proved beyond reasonable doubt, in fact, such Baka was never produced before the court so to confront with treating doctor that in fact any injury was caused by Baka, Jitendra Kushwah has been falsely implicated and deserves to be acquitted and is hereby acquitted. Therefore, Criminal Appeal No.243/2013 is partly allowed.
14. It is true that recovery of two mobile phones have 10 CR.A.243/2013, 172/2013 & 137/2013 been made respectively from Anju @ Chand Khan and Kamlesh. They have been identified by the complainant before the court. There is no material on record to dispute such identification. As far as Rafik is concerned, in the FIR or in the case diary statement (Ex.D/1) of Suresh, there is no mention of denomination of the notes which totalled to Rs.6800/- which were snatched by the accused persons. Therefore, merely on the basis of recovery of Rs.1000/- from the possession of Rafik, it can not be said that even Rafik was present at the place of the incident. In fact when two persons were involved in the loot and they had snatched mobiles as well as the currency note from the complainant as has been initially narrated by the prosecution witness Suresh Kori (P.W.1), then there was no occasion for the two other persons to reach there and cause such hurt. As to the recovery from Rafik, since the seizure is doubtful as Maniram (P.W.7) admitted that he was brought back from the Gali of house of Rafik and he had not gone in the house of Rafik and since such seizure at the instance of Rafik from any portion of the house has not been supported by the prosecution witness, can not be relied upon to uphold the conviction of Rafik. In view of such facts, Rafik also needs 11 CR.A.243/2013, 172/2013 & 137/2013 to be acquitted by extending benefit of doubt to him as the prosecution has failed to prove its case beyond reasonable doubt.
15. Further as far as appellants Anju @ Chand Khan and Kamlesh are concerned, recovery of mobile phones have been proved by the prosecution beyond reasonable doubt and they have been duly identified by Suresh Kori (P.W.1). Therefore, conviction of Kamlesh & Anju @ Chand Khan needs to be affirmed and is hereby affirmed.
16. Accordingly, appeals filed by appellants Jitendra Kushwah @ Jeetu and Rafik are allowed and their conviction is set aside. Appellant Jitendra is in jail. He be released forthwith if not required in any other case. Appellant Rafik is on bail. His bonds stand discharged. Appeals filed by appellant Anju @ Chand Khan and Kamlesh are dismissed. Appellant Kamlesh is in jail. Appellant Anju @ Chand Khan is on bail. His bail bonds stand cancelled. He is directed to surrender before the trial court on or before 30/04/2019 to serve remaining sentence.
Record of the case be sent to the trial court.
(Vivek Agarwal) Judge SP SANJEEV KUMAR PHANSE 2019.04.08 17:31:10 +05'30'