Madhya Pradesh High Court
Kalicharan & Anr. vs The State Of M.P. on 8 August, 2017
Bench: R.S. Jha, Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 192/1994
1. Kalicharan son of
Gourishanker Patel, aged
32 years
2. Jamna, son of
Bhagbali Patel, aged 22
years
Both cultivators and
residents of village Kalgaon,
Police Station Raj Nagar,
District-Chhatarpur
Versus
The State of Madhya Pradesh
&
Criminal Appeal No. 1319/2001
State of Madhya Pradesh,
through P.S.- Rajnagar,
Distt. Chhatarpur.
Versus
Rajendra Kumar @ Rajjan
Pal and others
Date of hearing: 27/07/2017
Date of Judgment:8/8/2017
PRESENT :
HON'BLE SHRI JUSTICE R.S. Jha
HON'BLE SMT. JUSTICE Nandita Dubey
2
For the Appellants:
Shri Surendra Singh, Senior Advocate with Shri
Ranjan Banerjee and Shri Shivam Singh,
Advocates in Criminal Appeal No.192/1994.
Shri Ranjan Banerjee, Advocate for the
respondents in Criminal Appeal No. 1319/2001.
For the State:
Shri Vijay Soni, Panel Lawyer in both the appeals.
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JUDGMENT
As per Nandita Dubey, J.:
Both these appeals are proposed to be decided by this common judgment as they arise out of the same impugned judgment passed by the trial Court on 08.02.1994 deciding S.T.No.140/90, 224/90 and ST No.241/90 . In S.T.No.140/1990,out of five persons who faced trial, two of the accused, namely, Kalicharan and Jamna have been convicted for the offence punishable under Section 395 IPC and sentenced to undergo seven years R.I., whereas three of them, namely, accused Rajendra, Anil and Munnilal have been acquitted.
2. Appellants Kalicharan and Jamna have filed Criminal Appeal No.192/1994 assailing their conviction under Section 395 IPC and sentence of seven years' R.I., whereas State of Madhya Pradesh in Criminal Appeal No.1319/2001 has assailed the acquittal of accused Rajendra alias Rajjan, Anil and Munnilal in Sessions Trial No. 140/1990.
33. The prosecution story setting in motion the aforesaid trial, in nut shell, is that on 29.11.1989 at about 8.15 pm, a dacoity was committed in the house of Motilal (PW.1) by about 7 persons, armed with fire arms and lathis . The persons carrying the lathis assaulted the complainant and Ganesh, and took away his licensed gun as well as the gun belonging to his uncle. They fired gun shot and also looted the cash, gold and silver ornaments detailed in the report,and ran away. Description of the dacoits was also given stating that the complainant has clearly seen them in the bright light of the room. Pursuant to first information report that was lodged at 9.30 am on the next day i.e. on 30.11.1989 by Motilal (PW.1), crime no. 63/1989 was registered for the offences under Sections 395,396 and 397 IPC.
4. During the course of investigation of Crime No.63/1989, it was informed to the police that one Durga who rushed out of his house hearing about the dacoity was hit by a shot fired by some unknown person resulting in his death. Dehati Nalish (Ex.P/5) was recorded at 12.05 pm on 30.11.1989 and Marg report (P/28) was prepared , and the body of the deceased was sent for postmortem.
5. Injured Ganesh was also sent for medical examination, spot map (Ex.P/29 and P/30) were prepared . Empty bullet case, broken butt of rifle, and piece of bullet was recovered from the spot.
6. Accused Jamna was arrested on 11.02.1990 and pursuant to his disclosure statement (Ex.P/36), one 4 golden sutiya (Article D), one silver sutiya (Article E) were recovered vide seizure memo (Ex.P/37) from his house.
7. Accused Kalicharan was arrested on 08.03.1990 and pursuant to his disclosure statement (Ex.P/35), one silver kardhani (Article C) and three gold addhi (Article I- 1,I-2,I-3) were recovered from his house vide seizure memo (Ex.P/40).
8. Accused Anil was arrested on 05.06.1990 and apart from a rifle, 3 sets of silver paijana, 1 gold sutia, 2 gold khutia were recovered from him. However, no recovery of ornaments from him was made . Accused Rajjan @ Rajendra was arrested on 13.06.1990 and pursuant to his disclosure statement (Ex.P/43), 1 gold pungaria, 2 gold mohar, 2 pair of silver paijana were recovered. Accused Munnilal was arrested on 20.05.1990, however, no recovery was made from him.
9. Jaynarayan was arrested on 25.07.1990 and vide Ex.P/21, P/22 and P/23 stolen ornaments and 12 bore gun was seized from him. Santosh Kumar was arrested on 21.08.90 and a jeep used in dacoity was seized. Separate sessions trial were held against them.
10. Test identification of recovered items was conducted on 10.05.1990 and 19.07.1990 & 13.09.1990 by B.B.Rajoriya (PW.7) Naib Tahsildar. Motilal (PW.1) and Halkibai (PW.6) identified the ornaments.
11. After completion of the investigation of the case, the charge sheet was filed by the prosecution against the 5 appellants on the basis of which Kalicharan, Rajendra, Anil, Jamna & Munnilal were charged for the offence under Sections 395,396 and 397 of IPC in ST No.140/90, Jainarayan was charged for the offence under Section 395,396,397 of IPC in ST No.224/90, and accused Santosh was charged under Section 396 read with Section 120-B of IPC in ST No.241/90. The accused persons pleaded "not guilty" to the charges framed against them, and claimed a trial. They pleaded false implication because of the previous enmity and rivalry on account of panchayat election. Appellants Kalicharan and Jamna, in their defence, have examined Bhagbali(DW.1) and Smt. Meera (DW.2) to prove that the seized ornaments belonged to them and seizure from their house was done with an intention to falsely implicate them.
12. The prosecution, in order to prove its charges against the accused persons, has examined total 18 witnesses. Motilal (PW.1) the complainant, was examined as eye-witness. Halkibai (PW.6), Ramsingh (PW.9), Guljari (PW.10), Gariabai (PW.11) were examined as witnesses of the incident. Barelal (PW.2) , Bhimma (PW.3), Bhagwandas (PW.8), Shayamlal (PW.12),Umrao (PW.13), Natthu (PW.17) and Chironjilal (PW.18) were examined to prove the seizure memo. Dr. I.D.Chourasia (PW.5) performed autopsy of deceased Durga Patel and injured Ganesh was also examined. Head Constable Premnarain (PW.4),Naib Tahsildar B.D.Rajoria (PW.7),Asstt.Sub-Inspector M.P.Pauranik (PW.14), Town Inspector V.N.Singh (PW.15) and Investigating Officer R.S.Chauhan (PW.16) were also examined.
613. On consideration of the entire evidence, learned Ist Addl. Sessions Judge proceeded to record the order of acquittal of Jainarayan and Santosh in ST No. 224/90 and 241/90 respectively . Rajendra Kumar, Anil Singh and Munnilal were also acquitted in ST No.140/90 as recovery of articles was not proved, whereas, Kalicharan and Jamna were convicted for the offence under Section 395 IPC and sentenced to seven years R.I.each. The charges against the appellants were found proved on the basis of recovery made from their respective houses.
14. The challenge put forth by the appellants to the order recording their conviction in Criminal Appeal No. 192/1994 is on the ground that the Court below has grossly erred in holding that the appellants committed daocity in the house of Motilal and the ornaments seized from the houses of appellants constituted part of looted property. It is further urged that once presence of appellants is ruled out at the place of occurrence, conviction under Section 395 IPC, by invoking the presumption under Section 114 of the Evidence Act, cannot be sustained.
15. As against this, learned counsel for the State in Criminal Appeal No. 1319/2001 filed against the acquittal of Rajendra Kumar, Anil Singh and Munnilal, has submitted that the learned trial Court has erred in disbelieving the testimony of Ramsingh (PW.9) who claimed to have seen the incident.
16. We have given our anxious consideration to the rival arguments advanced by the learned counsel for the 7 parties in the light of oral and documentary evidence on record.
17. On going though the evidence of prosecution witnesses, it is gathered that the appellants hail from the same village and were known to the complainant and other witnesses, and as per FIR (Ex.P/1), Motilal (PW.1) has clearly seen them in the bright light of his room and had given their description. Motilal (PW.1), Ramsingh (PW.9), Guljari (PW.10) and T.I. V.N.Singh (PW.15) have admitted that there are two parties in the village, one of Brajmohan and other of Kalicharan. Motilal belonged to Brijmohan's party and there is previous enmity between the parties. It is also an admitted fact that number of cases are pending between the two groups.
18. Ramsingh (PW.9), brother of deceased Durga, claimed to have seen the incident. He had testified that Kalicharan fired the shot which killed Durga and had informed about the same to Motilal and others. Motilal (PW.1) has testified that he did not see who killed Durga and he spent the whole night at Sahab Singh's (father of Durga) house though in para 3 he has stated that he recognized two of the dacoits Kalicharan and Jamna in the bright light of his room. Similar is the testimony of Halkibai (PW.6). Despite these facts, absence of names of accused in the FIR which was lodged on the next day i.e.on 30.11.1989 at about 9.30 am, and in the inquest report (Ex.P/2), Dehati Nalish (Ex.P/5) which was recorded on 30.11.1989 at about 12.05 pm and witnessed by Jagatraj Patel, Hari Patel, Sahabdin Patel, 8 Ramsingh (PW.9) and Guljari (PW.10) makes it evident that till 12 O'clock of 30.11.1989, Motilal or other witnesses have no clue about the identity of dacoits. If complainant (PW.1),Halkibai (PW.6) and Ramsingh (PW.9) had identified the accused person on 29.11.89, there was no reason for them not to mention the name or presence of appellant no.1 and 2 in the FIR (Ex.P/1) and in the Dehati Nalish (Ex.P/5). Aforesaid fact renders the involvement of appellants in the crime doubtful.
19. Learned counsel for the appellant has questioned the identification of Article C,D,E and I-1, I-2, I-3 on the ground that the witnesses Motilal (PW.1) and Halkibai (PW.6) have not given any particular marks of identification of the looted ornaments, and since these ornaments were of common use in the village and available in every household, too much importance cannot be placed on the identification.
20. In Sita Ram vs. State 1972 MPLJ SN 119, the Court has held that the object of the test identification is to find out whether the testimony of a witness who claims to identify a particular item of property as his own or belonging to a particular person can be safely relied upon ? If the witness is able to give any special identification marks the identification can certainly be considered of great value but where he is unable to point out any particular mark of identification and the article is of the ordinary kind, too much reliance cannot be placed on the identification because the witness may be able to pick out the correct article from amongst other articles by mere chance or because of some hint given 9 by some one.
21. Similarly in Bharat vs. State of M.P. (2003) 3 SCC 106 the Apex Court has observed thus :-
"11.Reverting now to the circumstance of recovery of the aforesaid ornaments from the house of the appellant and the identification of those ornaments, the High Court has committed a serious illegality in relying upon the factum of recovery as a circumstance against the appellant despite coming to the conclusion that the ornaments had not been duly identified. It stands established that the ornaments Toda and Khagwari were not of any peculiar design. Similar Toda and Khagwari were with every family in the village. In the cross-examination of PW 18 in whose presence those ornaments are alleged to have been identified by PW8 and PW 15, it has come that ornaments of that design were available in the market and ladies of the village have them. He is said to have purchased Toda and Khagwari from the market and mixed those with the allegedly recovered ornaments from the house of the appellant. What is of importance is that some portion of the paper had been stuck to the recovered ornaments. That paper was visible at the time of identification.
22. In Babuda vs. State of Rajasthan 1992 Supp (2) SCC 438, it was observed that mere recovery of stolen articles after a long time cannot be a clinching circumstance to hold the accused guilty, when no other clinching evidence, particularly about his presence in the house of the deceased at the time of occurrence was available. On mere suspicion, howsoever strong, conviction cannot be based.
23. In the instant case, in cross examination of V.P.Rajoria (PW.7) in whose presence these ornaments have allegedly been identified by PW.1 and PW.6, it has come that Motilal has not given any identification mark of the stolen ornaments. He is said to have purchased the articles of similar design from the market and mixed these with the recovered articles, and for identification 10 purpose , put red ink marks on the recovered articles. It is evident from his evidence that this ink mark was visible at the time of identification.
24. It has come in the cross-examination of Motilal (PW.1) that stolen property was purchased by his father, and these articles were not worn daily, but only on special occasions, and lastly worn by his family members about two years ago. It was further admitted by him that items like Article C are easily available in the market and ladies of the village have them.
25. Halkibai (PW.6), in her testimony, has also admitted that there is no identification marks on her ornaments. In her cross-examination, she has admitted that her husband had informed her about the looted/stolen ornaments as she did not know about them till 30.11.1989. In para 13, she has further admitted that her husband had told her to identify all the articles in the Court stating that he had already identified them earlier.
26. In the present case, the recovery of the stolen articles were made after a period 3-4 months, and the identification was done after a period of 10 months. In this case a serious dacoity took place and was known to all the people in the village. Under these facts and circumstances, it is highly improbable that the appellants who are resident of same village, knowing that they have been implicated in the case of dacoity would keep the stolen articles at their own houses. Considering the facts and circumstances of the present 11 case, evidence relating to recovery and identification of ornament is not at all worth accepting, especially when their presence on the place of occurrence was ruled out by learned Ist Addl. Sessions Judge. It is clear that there is no other evidence to connect the appellants Kalicharan and Jamna with the crime. The trial Court has committed a serious illegality in relying upon the factum of recovery as a circumstance against the appellant for convicting them under Section 395 IPC, despite ruling out the presence of appellants at the place of occurrence. Once after acquitting the appellants under Section 396 and 397 of IPC, the trial Court could not have convicted them under Section 395 of IPC invoking the provision of Section 114 of the Evidence Act.
27. One important fact which cannot be over looked is that as many as seven accused persons were tried. The allegations against all of them were similar in nature and that being the position, if other five accused persons on the basis of same evidence have been acquitted, then according to us, the similar treatment should have been provided to the present appellants.
28. The admitted facts so far as the three respondents/accused are concerned is that no identification parade was held for accused Munnilal and Rajendra @ Rajjan Pal, whereas the presence of accused Anil at the place of occurrence was denied by Motilal (PW.1), Halkibai (PW.6), Ramsingh (PW.9),Guljari (PW.10) and Gariabai (PW.11). Further, no recovery was made from Munnilal. There is also no evidence as far as 12 the recovery of stolen articles from accused Anil and Rajendra are concerned as the independent witnesses Barelal (PW.2), Bhimma (PW.3), Bhagwandas (PW.8) and Shayamlal (PW.12) in whose presence they were alleged to have made the statement and recovered the articles, did not support the prosecution case. Hence, in view of the evidence on record, there is no substance in the State appeal against acquittal.
29. For the aforesaid reasons, we are of the considered opinion that the impugned judgment of the trial Court whereby the appellants have been convicted for the offence under Section 395 IPC cannot be sustained and deserves to be set aside. Resultantly, the Criminal Appeal No.192/1994 succeeds and is hereby allowed whereas appeal filed by the State (Criminal Appeal No. 1319/2001) is dismissed. The conviction and sentence imposed upon the appellants Kalicharan and Jamna are hereby set aside. They are discharged of their bail bonds and are directed to be set free forthwith.
30. Let a copy of this judgment be also kept in the record of connected Criminal Appeal No. 1319/2011 which has also been disposed of by this common judgment.
(R.S.Jha) (Nandita Dubey)
JUDGE JUDGE
/08/2017 /08/2017
jitin