Madhya Pradesh High Court
Allu vs The State Of Madhya Pradesh Thr on 14 December, 2017
1 Criminal Appeal No.819/2016
[Allu Vs. State of M.P.]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.819/2016
.........Appellant: Allu
Versus
.........Respondent : State of M.P.
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Shri Raghuveer Singh with Shri Rajeev Jain, Advocates for
appellant.
Shri G.S. Chauhan, Public Prosecutor for respondent/State.
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Date of hearing : 14/12/2017
Date of Judgment : 14/12/2017
Whether approved for reporting :
JUDGMENT
(14/12/2017) Per Justice G.S. Ahluwalia, This appeal under Section 374 of Cr.P.C has been filed by appellant-Allu against the judgment dated 28/9/2015 passed by First ASJ, Ashoknagar in Sessions Trial No.100/2010 by which the appellant has been convicted under Section 399 of IPC and has been sentenced to undergo RI for five years and fine of Rs.5000/-, under Section 400 of IPC and has been sentenced to undergo imprisonment for five years and fine of Rs.5000/- and under section 402 of IPC and has been sentenced to undergo RI for three years and fine of Rs.2000/- with default imprisonment.
2 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] Prosecution story in short is that on 16.2.2004, SHO PS Manthana, Ashoknagar, received an information on 16.2.2004 that appellant along with co-accused persons are making preparation for committing dacoity in a petrol pump situated at Piprai Road. Thereafter, SHO along with police party reached on the spot and went to the place which was informed by the informer and found that the appellant and other accused persons were making preparation for committing dacoity. All the accused persons were surrounded by the police party and co-accused Lakkha and Abid and appellant-Allu were apprehended on the spot whereas, Ranjit and Kallu alias Karia taking advantage of darkness, escaped from the spot. Appellant-Allu and co-accused Lakkha and Abid were brought to the PS along with the seized weapons where, SHO PS Ashoknagar Manthana registered the FIR and Crime No.110 of 2004 for offence under Section 399, 400 and 402 of IPC as well as under section 25 of the Arms Act was registered.
It appears that after completing the investigation, the charge sheet was filed against co-accused Ranjeet, Kallu and Abid. The appellant-Allu was absconding. After recording the evidence of the witnesses, the trial court by judgment dated 25/3/2009 passed in ST No.318/2006 convicted Ranjeet, Kallu and Abid under Sections 399, 400 and 402 of IPC and sentenced them to undergo rigorous imprisonment of five years and fine of Rs.5,000/- for offence under Sections 399 and 400 of IPC and they were sentenced to undergo 3 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] rigorous imprisonment of three years and a fine of Rs.2,000/- for offence under Section 402 of IPC.
Abid was also convicted under Section 25 (1) (1-B) A of the Arms Act and was sentenced to undergo RI for one year and fine of Rs.1000/- with default imprisonment. All the sentences were directed to run concurrently.
The co-accused Ranjeet, Kallu and Abid filed Criminal Appeal Nos.249 and 329 of 2009 challenging the conviction and sentence passed by the court below.
This Court by judgment dated 9/3/2017 passed in Criminal Appeal Nos.249 and 329 of 2009 acquitted the co-accused persons after noticing various infirmities, contradictions, omissions and inconsistencies in the evidence of the prosecution witnesses. It was held by this Court that the omissions in the evidence of the witnesses are not minor in nature and they give a deep dent to the prosecution case.
It appears that after the co-accused persons were convicted by judgment dated 25/3/2009 in ST No.318/2006 the appellant- Allu was arrested and the case was committed to the Sessions Court in the month of August, 2010. The trial court by order dated 7/8/2010 framed the charge under Sections 399, 400 and 402 of IPC.
The appellant abjured his guilt and pleaded not guilty. The prosecution in order to prove its case examined 4 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] Ramkumar (PW-1), Nathusing Chauhan (PW-2), O.P. Arya (PW-
3), Prithvipal Singh (PW-4), Rajendra Kumar Sharma (PW-5), Lalu Singh (PW-6), Ramdas (PW-7) and Daulat Singh Gurjar (PW-8).
The appellant did not examine any witness in his defence. The trial court by judgment 28/9/2015 convicted the appellant for offence under Sections 399, 400 and 402 of IPC and sentenced him to undergo the rigorous imprisonment of five years and a fine of Rs.5,000/- for offence under Sections 399 and 400 of IPC and rigorous imprisonment of three years and a fine of Rs.2,000/- for offence under Section 402 of IPC with default imprisonment.
It is submitted by the counsel for the appellant that in the present case all the independent witnesses have not supported the prosecution case and the entire prosecution case is based on the evidence of the police personnel, which suffers from the same omissions and contradictions on the basis of which this Court has already acquitted the co-accused persons by judgment dated 9/3/2017 passed in Criminal Appeal Nos.249 and 329 of 2009. It is further submitted that in the present case also no documentary evidence like Rojnamchasanha etc. was filed by the prosecution to suggest that the police personnel had received any information with regard to the assembly of the accused persons for making preparation for committing dacoity. No Rojnamchasanha showing departure of the police party from the police station and arrival of 5 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] the police party to police station after arresting the accused persons has been filed. It is further submitted that as this Court has already acquitted the co-accused persons after noticing similar evidence, which has come on record, therefore, the appellant is also entitled for the benefit of acquittal, as the evidence which was recorded subsequent to the conviction of the co-accused persons also suffers from the same infirmities. It is further submitted that when this Court has already come to a conclusion that the prosecution has failed to prove that any accused person had assembled with an intention for making preparation for committing dacoity, then merely because the appellant has been tried separately because he was absconding when the co-accused persons were tried would not dis-entitle him for the same findings of fact. It is further submitted that if after evaluating the case, this Court reached to the conclusion that the conviction of the co-accused persons was not possible, then the benefit of that decision should also be extended to the present appellant, who is similarly situated. To buttress his contention, the counsel for the appellant relied upon the judgment passed by the Supreme Court in the case Md. Sajjad Alias Raju Alias Salim Vs. State of West Bengal reported in (2017) 11 SCC 150.
Per contra, it is submitted by the counsel for the State that the evidence against the appellant was recorded separately, therefore, it cannot be said that the appellant is also entitled for 6 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] the same benefit which the other co-accused persons have been granted. The case of the appellant has to be judged from the evidence which has come on record.
Heard learned counsel for the parties.
In the present case Ramkumar (PW-1) and Lalu Singh (PW-
6) were the independent witnesses, who are alleged to have gone alongwith the police party. They have not supported the prosecution case and they have turned hostile. The case of the prosecution rests on the evidence of the police persons. It is well established principle of law that the evidence of police person cannot be discarded merely because of his official position. However, in absence of corroborating independent evidence the evidence of the police persons, who are otherwise interested in the conviction of the accused persons as they themselves were the complainant, has to be scrutinized minutely. In the present case also the prosecution has not filed any Rojnamchasanha to show the departure or arrival of the police party to the police station. The general case diary which is popularly known as Rojnamchasanha in the Sate of M.P. is maintained as per the provisions of Police Regulation. Although the entries made in the general case diary cannot be given preference over the entries made in the police case diary, which is maintained as per the provisions of Section 172 of Cr.P.C., but where the police persons themselves are the complainant, then their evidence has to be 7 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] scrutinized very minutely.
From the plain reading of the evidence of the witnesses, it is clear that although the witnesses have claimed that the superior police officers were informed about the information given by the informant, but there is nothing on record in writing to show that any such information was given to the superior police officers. Even the Rojnamcha Sanha has not been produced by the witnesses showing departure/arrival of the police party from the spot.
From the evidence of Nathusing Chauhan (PW-2), O.P. Arya (PW-3), Prithvipal Singh (PW-4), Rajendra Kumar Sharma (PW-
5), Ramdas (PW-7) and Daulat Singh Gurjar (PW-8), it is clear that there are major contradictions in the evidence of police persons. If the evidence of police personnel is considered jointly, then, it would be clear that there are major contradictions and inconsistencies in the evidence of police personnel as to when Daulat Singh (PW-8) got information about assembly of the accused persons for the purpose of committing dacoity, whether the entire police force was divided into three parties at the police station or it was divided into three parties after reaching on the spot, whether the police party had left the police station in different vehicles or in one vehicle. Even there are major inconsistencies in the evidence of the police personnel to the effect that as to where the accused persons were sitting. Some witnesses have stated 8 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] that the accused persons were sitting inside the mining pit whereas, some witnesses have stated that they were sitting on the plain surface above the pit. Some witnesses have stated that the accused persons were sitting under a tree and some have stated that the accused persons were sitting behind the bushes. There are also major inconsistencies in the evidence of the police personnel to the effect that what was the reaction of the accused persons after noticing the police party. Some of the witnesses have stated that the accused persons were challenged and were apprehended on the spot whereas, two succeeded in running away whereas, according to some witnesses, all the five accused persons tried to run away and three could be arrested and two succeeded in running away from the spot. Even there is major contradiction in the evidence of the witnesses as to where they had parked their vehicles. There is major contradiction as to how much time the police parties took to reach to the spot from the place where they had parked their vehicles. There is major contradiction whether all the vehicles were parked at the same place or were parked at the different places. The prosecution has also not filed copy of the Rojnamcha Sanha in which departure and arrival activities of the police party are noted down.
It is well established principles of law that where a party is in possession of best evidence and if chooses not to file that evidence, then adverse inference can be drawn. If the 9 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] prosecution have chosen not to file Rojnamcha Sanha to show actual departure and arrival of the police party from the police station and back to the police station, then, this court is left with no option but to draw an adverse inference against the prosecution that there is no such Rojnamcha available in the police station. No document has been placed on record to show that any information was given to the superior police officers by the Daulat Singh (PW-8) about the receipt of the information from the informer regarding gathering of the accused persons for the purpose of committing dacoity.
Considering the facts and circumstances of the case, this court is of the view that the prosecution has miserably failed to prove the prosecution case beyond reasonable doubt to prove that the appellant had assembled alongwith co-accused persons on 16.2.2004 near lime stone mine for making preparation for committing dacoity in petrol pump. Even Ramkumar (PW-1), who is the witness to the arrest memo (Ex.P/3) and seizure memo (Ex.P/4) has not supported the prosecution case and has turned hostile and thus, as the entire prosecution story has been found to be doubtful, therefore, this Court is of the considered opinion that the prosecution has failed to prove that the appellant was arrested on the spot along with a sword.
In the considered opinion of this court, prosecution has failed to explain the major contradictions as pointed out by this 10 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] court. It is well establish principle of law that minor omissions in the evidence of the prosecution witnesses would not amount to contradiction and minor omissions in the evidence of the witnesses cannot be said to be fatal to the prosecution case.
The Supreme Court in the case of Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796 has held as under :
"28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore,minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (see Leela Ram v. State of Haryana (2000) SCC (Cri) 222, Rammi v. State of M.P. (2000) SCC (Cri) 26 and Shyamal Ghosh v. State of W.B. (2012) 7 SCC 646).
The Supreme Court in the case of Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646, has held as under :
11 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] "68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the Explanation to Section 162 CrPC which deals with an omission to state a fact or circumstance in the statement referred to in sub- section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this Explanation reveals that if a significant omission 12 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] is made in a statement of a witness under Section 161 CrPC, the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal 13 Gupta v. State of Maharashtra and Subhash v. 14 State of Haryana .)
71. The basic element which is unambiguously clear from the Explanation to Section 162 CrPC is use of the expression "may". To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra, then the legislature would have used the expression "shall" in place of the word "may". The word "may" introduces an element of discretion which has to be exercised by the court of competent jurisdiction in accordance with law. Furthermore, whether such omission, variation or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affects the case of the prosecution materially".
The Supreme Court in the case of S. Govidaraju v. State of Karnataka, (2013) 15 SCC 315, at page 322 :
"23. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for 13 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt."
The Supreme Court in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, (2010) 13 SCC 657 :
30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan (2008) 17 SCC
587.)
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh (2009) 11 SCC 106.)
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not 14 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P.(200() 11 SCC 334);
33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait (2008) 15 SCC 440);
34. In State of Rajasthan v. Kalki (1981) 2 SCC 752, while dealing with this issue, this Court observed as under: (SCC p. 754, para 8) "8. ... In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See Syed Ibrahim v. State of A.P (2006)10 SCC 601 and Arumugam v. State (2008) 15 SCC 590;
36. In Bihari Nath Goswami v. Shiv Kumar Singh (2004) 9 SCC 186 this Court examined the issue and held: (SCC p. 192, para 9) "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited".
15 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] However, if the omissions, contradictions and inconsistencies as pointed out by this court in the light of the evidence of the prosecution witnesses are considered, then, it would be clear that these omissions are not minor in nature. They give a deep dent to the prosecution case and they are major omissions, contradictions and inconsistencies in the evidence of witnesses who all are police personnel and therefore, the accused persons are entitled to the benefit of said omissions, inconsistencies and contradictions. Further while deciding the appeal of the co-accused persons, when this Court has already come to a conclusion that the prosecution has failed to prove the commission of offence, then it would be very difficult to hold that the appellant had assembled to make preparation for committing dacoity. It is held that the appellant is not found guilty for committing offence under sections 399, 400 and 402 of IPC. Accordingly, he is acquitted of the charges.
Accordingly, judgment and sentence dated 28/9/2015 passed by First ASJ, Ashoknagar in Sessions Trial No.100/2010 is set-aside. The appellant is in jail. He be released forthwith, if not required in any other case.
The appeal filed by the appellant hereby succeeds and is allowed.
(G.S. Ahluwalia) Judge Arun* Digitally signed by ARUN KUMAR MISHRA Date: 2017.12.20 16:59:14 +05'30' 16 Criminal Appeal No.819/2016 [Allu Vs. State of M.P.] Gwalior : 14/12/2017 Shri Raghuveer Singh with Shri Rajeev Jain, Advocates for appellant.
Shri G.S. Chauhan, Public Prosecutor for respondent/State.
Arguments heard.
Judgment is dictated, signed and dated on separate sheets.
(G.S. Ahluwalia) Judge Arun*