Madhya Pradesh High Court
Pushpendra Singh @ Kunwar Singh vs State Of M.P on 29 November, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 Cr.A. No. 611/2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 29th NOVEMBER 2024
Cr.A. No. 611 of 2012
PUSHPENDRA SINGH
VS.
STATE OF M.P.
Appearance :
Shri R.K. Sharma Senior Advocate with Shri V.K. Agrawal, Counsel for
Appellant
Shri N.K. Gupta, Public Prosecutor for respondent/State
ORDER
This Criminal Appeal, under Section 374(2) of Cr.P.C., has been filed against the Judgment and Sentence dated 1-8-2012 passed by Special Judge (MPDVPK Act), Bhind in Sessions Trial No. 93/2007 (Dacoity) by which the appellant has been convicted under Section 392 of IPC read with Section 11/13 of MPDVPK Act, and has been sentenced to undergo Rigorous Imprisonment of 4 years and a fine of Rs. 1000/- with default imprisonment of 15 days.
2. The facts necessary for disposal of this appeal in short are that on 26-6-2007 at about 7:45 P.M., complainant Diwan Singh was going on his Motor Cycle bearing No. MP 07 MB 9953 with parts of Generator. He was overtaken by three boys who were on different Motorcycle. Two boys got down from their Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 2 Cr.A. No. 611/2012 Motorcycle, whereas one boy moved ahead with his Motorcycle. Two boys who had deboarded the motor cycle, caught hold the handle of the Motorcycle of complainant and took out one country made pistol. The complainant fell down. Those two boys took away his motor cycle No. MP 07 MB 9953, the parts of generator and his nokia mobile phone. On the complaint made by complainant, police registered FIR against two unknown persons in Crime No. 62/2007 for offence under Section 392 of IPC and under Section 11/13 of MPDVPK Act.
3. During investigation, police arrested three persons including appellant. Confessional statement of appellant under Section 27 of Evidence Act was recorded. Motorcycle No. MP 97 MB 9953 was seized from the possession of appellant. Police after completing investigation, filed the charge sheet.
4. The Trial Court by order dated 17-10-2007, framed charges under Section 392 of IPC read with Section 11/13 of MPDVPK Act.
5. The appellant and other two accused persons abjured their guilt and pleaded not guilty.
6. The prosecution examined Kamlesh (P.W.1), Buddhe (P.W.2), Jagdish Kushwaha (P.W.3), Ramesh Singh Bhadouria (P.W.4), Asharam (P.W.5), Sobaran (P.W.6), K.S. Sikarwar (P.W.7), and Diwan Singh (P.W.8).
7. The Appellant and co-accused did not examine any witness in their defence.
8. The Trial Court by Judgment and Sentence dated 1-8-2012, acquitted co- accused Rama Shanker and Pushpraj whereas convicted the appellant for offence under Section 392 of IPC read with Section 11/13 of MPDVPK Act and sentenced him to undergo the above mentioned jail sentence.
9. Challenging the Judgment and Sentence passed by Trial Court, it is submitted by Counsel for appellant that all the important witnesses, including the independent witnesses of seizure have turned hostile. Even the complainant Diwan Singh (P.W.8) has turned hostile on the question of identity. No Test Identification Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 3 Cr.A. No. 611/2012 Parade was conducted by police. Even if the evidence of Ramesh Singh Bhadouria (P.W.4) who had conducted the investigation and had seized the motor cycle from the possession of appellant is relied upon, still the appellant would be at the best guilty for offence under Section 411 of IPC. It is further submitted that the investigating officer did not narrate that part of confessional statement of appellant which led to seizure of motor cycle, therefore, even the seizure of motor cycle could not be proved by the prosecution. To buttress his contentions, Counsel for appellant relied upon judgment passed by Division Bench of this Court in the case of Niran Vs. State of M.P. reported in 1988 JLJ 505.
10. Per contra, the Counsel for State has supported the findings recorded by the Trial Court.
11. Heard the learned Counsel for the Parties.
12. Kamlesh (P.W.1), Buddhe (P.W.2), Jagdish Kushwaha (P.W.3), Asharam (P.W.5), Sobaran (P.W.6), have turned hostile. Although the complainant Diwan Singh (P.W.8) has supported the prosecution case with regard to commission of offence but turned hostile on the question of identity. Thus, there is no evidence of committing robbery by the Appellant.
13. Now the next question for consideration is that whether evidence of Ramesh Singh Bhadouria (P.W.4) who is the investigating officer is reliable or not and whether the appellant has been rightly held guilty for offence under Section 392 of IPC read with Section 11/13 of MPDVPK Act or not?
14. Ramesh Singh Bhadouria (P.W.4) is a police officer. His evidence cannot be disbelieved merely on the ground that he is a police officer or investigating officer.
15. The Supreme Court in the case of State, Govt. of NCT of Delhi v. Sunil, reported in (2001) 1 SCC 652 has held as under :
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 4 Cr.A. No. 611/201220. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-
examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 5 Cr.A. No. 611/201216. The Supreme Court in the case of Praveen Kumar Vs. State of Karnataka reported in (2003) 12 SCC 199 has held as under :
21. Section 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses.
Normally, in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus, it is only a rule of prudence which makes the court to seek corroboration from an independent source, in such cases while assessing the evidence of the police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration.
17. The Supreme Court in the case of Yakub Abdul Razak Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has held as under :
1737. Shri Mukul Rohatgi, learned Senior Counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined i.e. Suresh Satam (PW 37). His evidence cannot be relied upon for the reason that he was the brother of a Police Constable and thus, cannot be termed as an independent witness. Factually, it is true that the panch witness Suresh Satam (PW 37) himself has admitted that his brother was an employee of the Police Department of Maharashtra. Further, merely having such a relationship does not make him disqualified to be a panch witness, nor his evidence required to be ignored. In Kalpnath Rai, this Court has held that the evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact situation, a duty is cast on the court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined. (See also Paras Ram v. State of Haryana, Pradeep Narayan Madgaonkar v. State of Maharashtra, Sama Alana Abdulla v. State of Gujarat, Anil v. State of Maharashtra, Tahir v. State (Delhi), and Balbir Singh v. State.) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 6 Cr.A. No. 611/2012
18. Thus, it is clear that evidence of Ramesh Singh Bhadouria (P.W.4) cannot be discarded merely on the ground that he is a police personal.
19. Now the only question for consideration is that whether he has proved the confessional statement of the appellant in accordance with law?
20. Before considering the aforesaid aspect, this Court would like to consider the law governing the field that in what manner the confessional statement of an accused and seizure of incriminating article is to be proved.
21. The Supreme Court in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, reported in (2024) 8 SCC 149 has held as under :
60. We would now discuss about the requirement under law so as to prove a disclosure statement recorded under Section 27 of the Evidence Act, 1872 (hereinafter being referred to as "the Evidence Act") and the discoveries made in furtherance thereof.
61. The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in State of U.P. v. Deoman Upadhyaya.
62. Thus, when the investigating officer steps into the witness box for proving such disclosure statement, he would be required to narrate what the accused stated to him. The investigating officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating fact(s).
63. As per Section 60 of the Evidence Act, oral evidence in all cases must be direct. The section leaves no ambiguity and mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section. In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same.
64. The manner of proving the disclosure statement under Section 27 of the Evidence Act has been the subject-matter of consideration by this Court in various judgments, some of which are being referred to below.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 7 Cr.A. No. 611/2012
65. In Mohd. Abdul Hafeez v. State of A.P., it was held by this Court as follows : (SCC p. 146, para 5) "5. ... If evidence otherwise confessional in character is admissible under Section 27 of the Evidence Act, it is obligatory upon the investigating officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person."
66. Further, in Subramanya v. State of Karnataka, it was held as under :
(SCC pp. 299-300, paras 76 to 78) "76. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
'27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'
77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
78. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 8 Cr.A. No. 611/2012 that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." (emphasis supplied)
67. Similar view was taken by this Court in Ramanand v. State of U.P., wherein this Court held that mere exhibiting of memorandum prepared by the investigating officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the investigating officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement.
22. If the evidence of Ramesh Singh Bhadouria (P.W.4) is considered then it is clear that he had merely stated that he had recorded the confessional statement of appellant which is Ex. P.7. However, he did not narrate the statement which led to seizure of motor cycle. Thus, it is held that the evidence of Ramesh Singh Bhadouria (P.W.4) cannot be relied upon.
23. As already pointed out that all the witnesses of commission of robbery as well as seizure of motor cycle have already turned hostile. Even the complainant has turned hostile on the question of identity. Since, the prosecution has failed to prove the seizure of Motor Cycle No. MP-07-MB-9953 from the appellant Pushpendra, therefore, it is held that conviction of appellant for offence under Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM 9 Cr.A. No. 611/2012 Section 392 of IPC read with Section 11/13 of MPDVPK Act cannot be upheld. Accordingly, his conviction Section 392 of IPC read with Section 11/13 of MPDVPK Act is hereby set aside. He is acquitted of all the charges.
24. Ex Consequenti, the Judgment and Sentence dated 1-8-2012 passed by Special Judge (MPDVPK Act), Bhind in Sessions Trial No. 93/2007 (Dacoity) is hereby set aside.
25. The appellant is on bail. His bail bonds are hereby discharged. He is no more required in the present case.
26. Appeal succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/3/2024 9:20:02 AM