Madhya Pradesh High Court
Hanslal & Anr. vs State Of M.P. on 24 August, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2024:MPHC-JBP:42456
1 CRA-2891-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 24th OF AUGUST, 2024
CRIMINAL APPEAL No. 2891 of 1998
HANSLAL & ANR. AND OTHERS
Versus
STATE OF M.P.
Appearance:
Shri G.S. Baghel and Shri N.S. Baghel - Advocates for appellants.
Ms. Priyanka Mishra - Government Advocate for respondent/State.
Reserved on : 08.08.2024
Pronounced on : 24.08.2024
JUDGMENT
In this criminal appeal, the appellants (hereinafter referred to as 'accused') have challenged the judgment passed on 17.10.1998 by I Additional Sessions Judge, Sidhi in ST No.5/1988, whereby accused persons were convicted of the offence under Section 412 IPC and were sentenced to 7 years rigorous imprisonment and fine amount of Rs.300/- failing which they would undergo RI for one year.
2. Brief facts relevant for the decision of this case are that in the midnight of 05-06 August, 1987, the victim Kailash was sleeping in his house when seven persons arrived there; one of them was carrying torch and knife; they all questioned the victim Kailash about illegal manufacturing of liquor; Kailash expressed his ignorance but he was overpowered by those persons; they tied the hands of victim Kailash and his sons Baliram, Fattelal Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 2 CRA-2891-1998 from behind. All the three were locked inside the room and jewellery, cash and watch etc were looted. These persons were between the age of 25-30 years, wearing shirt and pants, and speaking the local language. They all left the house after confining the inmates in the house and giving life threats in case any of the inmates screamed. Victim Kailash was able to see the faces of dacoits. The FIR about the crime was registered and the matter was investigated.
3. Baliram and Kailash were physically attacked in the incident and for the injuries sustained by them, they both were medically examined; upon the confidential information received from informant, Hanslal and his wife were nabbed and cash amount as well as jewellery was recovered from their possession and they both were arrested; a TIP was conducted in which the accused Hanslal was correctly identified. The jewellery was also placed before the witnesses for identification. After completion of investigation, charge-sheet was filed against Hanslal and Phoolkumari while rest of the dacoits were shown to be absconding. During the course of trial 3 absconding persons namely Sukhdev, Shivprasad and Rampratap appeared before the trial Court. After holding the trial, the impugned judgment was passed where under Sukhdev, Shivprasad and Rampratap were acquitted of all the charges while accused Hanslal was acquitted of the charge under Section 395 r/w 397 IPC.
4. The grounds raised in this criminal appeal are that the Court below could not find any evidence against the accused person regarding commission of dacoity, and despite this observation, it held them guilty of Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 3 CRA-2891-1998 offence under Section 412 of IPC which is not sustainable. The seizure of looted jewellery was also not proved. There was considerable delay in the identification of these jewellery items. The TIP of accused Hanslal was also shadowed with doubt. It was ignored by the Court below that the jewellery items which were seized in the case belonged to accused Phoolkumari. It is therefore prayed that the appeal should be allowed and not only the accused person should be acquitted, but the jewellery items seized from them should also be returned to them.
5 . Learned counsel for the State has opposed the present appeal by claiming that no interference is warranted.
6. Both the parties have been heard and the record has been perused.
7. Accused Hanslal along with other persons, namely Sukhdev alias Neta, Shiv Prasad alias Ramprasad and Rampratap alias Mahusudhwa, faced trial for the charges of Section 395 (read with Section 397) IPC but they all were acquitted of this charge. Accused Hanslal was instead convicted of the offence of Section 412 IPC. Accused Phoolkumari was tried for the charge of Section 412 IPC and convicted for the same. Admittedly, Phoolkumari is the wife of Hanslal and, according to prosecution, they both were found in possession of crime property that was looted during the commission of offence of dacoity.
8. The prosecution has put the case that on the intervening night of 5 th and 6th August, 1987 seven persons committed dacoity in the house of complainant Kailash and took away many jewelry items and also cash amount of Rs.3,000/-; to prove the commission of this offence, the Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 4 CRA-2891-1998 prosecution relied upon the testimony of complainant Kailash (P.W.1), his wife Dularia (P.W.2), his daughter-in-law Kehturia (P.W.3) and his son Baliram (P.W.4); from their unchallenged testimony it is established that the offence of dacoity was committed on the given night and jewelry items as well as cash amount were looted by the dacoits.
9. Accused Hanslal was charge-sheeted in the case for being the member of that group of dacoits and, during the investigation of crime, he was correctly identified in a test identification parade as one of the dacoits who committed the crime. On appreciation of evidence, the trial court came to the conclusion that prosecution could not establish this fact and disbelieving the test identification parade it acquitted the accused of the charge of Section 395 read with Section 397 IPC.
10. The trial court although did not accept the prosecution case in regard to the involvement of accused Hanslal in the offence of dacoity but it gave a finding that both the accused persons were found in possession of items looted during dacoity knowingly or at least believing that the property was the subject matter of a dacoity. Here it is very pertinent to mention that the accused persons claimed that the property seized from them was of their ownership, but it cannot be ignored here that no evidence was led before the trial court to prove this case of ownership set out by the accused persons. They also failed to file any document in this court to show that the property in question was of their ownership. Thus, their claim about the ownership of seized property cannot be decided in the absence of any piece of evidence in this regard, but still this court is supposed to examine whether the property Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 5 CRA-2891-1998 recovered from the accused persons was the subject matter of dacoity and appreciation of this fact becomes more so important for the simple reason that other pieces of evidence produced by the prosecution before the trial court were disbelieved by that court.
11. The seizure of jewelry items and cash amount was made by Thana Prabhari S. K. Shukla of Police Station Waidhan on the basis of a confidential intimation. This seizure was effected on 10.10.1987 at 9:30 p.m. near old vegetable market at Shakti Nagar. The seizure memos are Exs.P-6 and P-7 and the arrest memo of accused persons is Ex.P-8. For giving support to his testimony, prosecution has examined the two seizure witnesses and they are - Ramkaran (P.W.5) and Shobhan Puri (P.W.7). Shobhan Puri was declared hostile by the prosecution. Further, testimony of both these witnesses reveals that they signed these two documents of seizure i.e. Exs.P- 6 and P-7 in the police station and not near the old vegetable market at Shakti Nagar. Thus, the prosecution case gets no support from these two seizure witnesses as they have claimed that both the seizure documents were signed by them in the police station and not at the place where the seizure was supposedly made.
12. The seizure memos, Exs.P-6 and P-7 suggest that at the time of preparing them, there was an impression these articles were the subject matter of dacoity as Exs.P-6 and P-7 have details of the provision of Section 41(1-d) Cr.P.C. as well as of Section 395/397 IPC. It is very strange that without having any prior intimation about the commission of the offence of dacoity, he was writing such details in the seizure memo. Further, he has Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 6 CRA-2891-1998 failed to disclose in his testimony how he connected the seized items with Crime No.63/87 registered in another police station i.e. Jiyawan, district Sidhi. The correspondence made between the two police stations was never brought to light to show that Police Station, Waidhan, was informed prior to or after the seizure about the registration of Crime No.63/1987 about the commission of crime of dacoity.
1 3 . Not only the seizure of items is doubtful in the case but the identification proceeding held before the Naib Tahsildar is also clouded with doubts. Naib Tahsildar who held this proceeding was never examined by the prosecution. Ex.P-5 is the identification proceeding of items seized during the investigation. It is mentioned therein that total ten items were put for test identification with each such item four additional properties were mixed of identical nature. According to this document, all the five witnesses correctly identified the properties but statements of P.W.1 to P.W.4 who were involved in this identification proceeding are not consistent on this point.
14. Dularia Bai (P.W.2) claims that at the time of identification of articles no other items except those which belonged to the complainant party were available. Thus, putting similar additional items at the time of identification is seriously doubtful in the light of testimony of this witness. Other three witnesses namely Kailash (P.W.1), Kehturia (P.W.3) and Baliram (P.W.4) could state that only one or two more items were available there at the time of identification besides their own items.
15. In view of the statements of these prosecution witnesses, the proceeding of identification of articles comes under suspicion and to dispel Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 7 CRA-2891-1998 this, the officer responsible for this test identification proceeding was supposed to be examined, but prosecution failed here too.
16. Considering the facts discussed above, this Court comes to the conclusion that not only the seizure proceeding of jewellery items, but also the test identification proceeding of these articles is under serious doubt in this case and the prosecution has failed not only in dispelling this doubt but has also failed in producing the available evidence. It has already been discussed that the learned trial Court did not believe the prosecution story on the fact that accused Hanslal was involved in the crime of dacoity, therefore, whatever connecting evidence available against these two accused persons was the seizure of looted items and their identification, but on both these counts the prosecution has failed miserably.
17. On the basis of foregoing discussion, this criminal appeal is allowed and the conviction as well as sentence of accused persons for the offence of Section 412 of IPC is hereby set aside.
18. Both the accused persons are on bail. Their bail bonds stand discharged. The fine amount, if any deposited by them be refunded to them.
19. Let a copy of this judgment alongwith record be sent to the trial Court for information and necessary compliance.
(ANURADHA SHUKLA) JUDGE rv Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:42456 8 CRA-2891-1998 Signature Not Verified Signed by: REENA HIMANSHU SHARMA Signing time: 8/28/2024 6:22:39 PM