Madhya Pradesh High Court
State Of M.P. vs Ramvaran & Ors. on 16 November, 2016
Author: N.K. Gupta
Bench: N.K. Gupta, G.S. Ahluwalia
1 Criminal Appeal No.613/2003
State of Madhya Pradesh Vs. Ramvaran & others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT :
HON'BLE SHRI JUSTICE N.K. GUPTA
&
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
CRIMINAL APPEAL NO.613 of 2003
State of Madhya Pradesh
-Vs-
Ramvaran & Others
For the appellant/State : Shri J.M. Sahni, Panel
Lawyer.
For respondents : Shri Arvind Dwivedi,
Advocate.
JUDGMENT
(16/11/2016) Per N.K. Gupta, J.
The State has preferred the present appeal against the judgment dated 28.02.2003 passed by the II Additional Sessions Judge, Dabra, District Gwalior (M.P.) in Sessions Trial No. 352/2001 whereby all of the respondents have been acquitted from the charge of Sections 147, 395 read with Section 397, 307 or 307 read with Section 149, 225 read with Section 149, 332 read with Section 149 [five counts] and Section 333 read with Section149 of IPC. (2) Prosecution's case, in short, is that on 23.03.2001 2 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others various accused of Gadariya Dacoit Band were taken to Dabra Court from Central Jail, Gwalior (M.P.) so that they could attend the trial before the Additional Sessions Judge, Dabra. Nawab Sharma (PW-29), Head Constable Ishwari Prasad (PW-14), constable Indrajeet, constable Babulal, constable Balkishan (PW-15), Chokhelal (PW-16) etc took them from Central Jail Gwalior. Four police officials had one rifle each with 50 rounds given to each of them. Three handcuffs, three chains and keys were also provided to them. In the morning, the dacoit band was taken to Dabra. At about 04:30 pm, a roadways bus of Jhansi depot was available and therefore that band was taken into that bus. 20-30 passengers were also taken from Dabra. Bus was being driven by driver Rafeeq Ahmed and Mijajilal (PW-22) was the conductor in that bus. Near Jaurasi valley, two persons went to the gate of the bus and requested the conductor Mijajilal (PW-22) that they had to get down, hence, driver reduced the speed of the bus. Suddenly, 10 to 12 persons rose from their seats and flown red chilly powder in the eyes of police officials and thereafter five accused of the Dacoit band started assaulting police officials and tried to snatch their guns. Police officials directed the driver Rafeeq Ahmed not to stop the vehicle but someone fired with a gun and therefore near Addupura bus stand driver Rafeeq Ahmed jumped from the bus. Conductor Mijajilal (PW-22) was not opening the doors of the bus and therefore one accused gave him kick and thereafter all the five persons of dacoit band were rescued. All four guns and cartridges fixed in their magazines, 45 cartridges from constable Babulal, three handcuffs and three chains were robbed. Various police officials were 3 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others beaten who sustained fatal, grave and simple injuries. Driver Rafeeq Ahmed sustained all injuries of pellets on his face. FIR was lodged. Various persons were arrested. 5-6 accused who were the members of the dacoit band could not be arrested. During investigation, identification of the respondents was done and memos Ex.P-2, P-29 and P-40 were prepared. After due investigation, the charge-sheet was filed before the JMFC Dabra who in turn committed the case to the Sessions Court and ultimately it was received for trial by II Additional Sessions Judge, Dabra, District Gwalior (M.P.).
(3) The respondents abjured their guilt. They did not take any specific plea and hence no defence evidence was adduced.
(4) The trial court after considering the evidence adduced by the prosecution acquitted all the respondents from the aforesaid charges.
(5) In the present case, it is proved beyond doubt that various police officials have sustained grave, fatal and simple injuries and such injuries were caused to them where they were performing their public duty, hence, culprits have committed the offence under Section 307, 332 (five counts) and 333 of IPC. The culprits rescued five accused persons from custody and therefore, offence under Section 225 of IPC was also committed by the culprits. The culprits were more than five in number, therefore, offence under Section 147 was also committed by culprits of mob. Similarly, rifles, handcuffs etc were robbed from the police officials and robbery was done by more than five persons and hence they committed the offence under Section 395 read with Section 397, however, 4 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others it was for the trial court to consider as to whether the respondents were culprits or not.
(6) Various independent eyewitnesses as well as police officials were examined by the trial court to prove the identification of respondents to establish that they were the culprits. Naib Tahsildar C.L. Bauddha (PW-2) arranged for test identification parade of four accused persons Kedar, Harvilas, Rajendra and Pappu @ Lakshman and memo Ex.P-2 was prepared, however, in identification parade, no witness could identify respondent Rajendra and Pappu @ Lakshman. Naib Tahsildar Aditya Sharma (PW-
23) arranged a test identification parade and a memo Ex.P- 29 was prepared. Witnesses Nawab Prasad (PW-28), Ishwariprasad (PW-14), Balkishan (PW-15), Chokhelal (PW-
16) identified Ramvaran and Ramkishan had participated in that identification. Witness Nawab Prasad (PW-29) and Chokhelal (PW-16)could identify respondent Jaswant and Ishwariprasad and Balkishan could identify respondent Gopal. Naib Tahsildar P.K. Garg (PW-25) arranged identification of accused Jaswant, Mendu and Lal Singh and a memo Ex.P-40 was prepared. Ranjeet Singh (PW-3) could not identify anyone whereas Babu Singh (PW-13) and Balkishan (PW-15) could identify only Lal Singh. They wrongly identified to other persons instead of respondents Mendu and Jaswant.
(7) If identification memos are considered for their evidentiary value then it would be apparent that Ramvaran and Ramkishan were arrested on 28.02.2001 and 29.03.2001 but their test identification parade was arranged on 27.04.2001 i.e. approximately 4-8 weeks after their arrest. Similarly, Kedar and Harvilas were arrested 5 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others on 21.06.2001 and 26.07.2001 and TIP was arranged on 26.07.2001. Similarly, Lal Singh was arrested on 24.08.2001 and TIP was arranged on 21.11.2001. The investigating officer S.S. Bhadoriya (PW-8) was referred with various remand applications and he had accepted that the respondents were not produced before the magisterial court under cover and therefore there was possibility that most of the witnesses who were the police officials and they would have seen the respondents when they were arrested and therefore the delayed identification loses its evidentiary value. The incident was seen by the police officials and the independent witnesses. Mijajilal (PW-22) was the conductor in the bus who faced the kick of a culprit while he was not opening the door of the bus. But he could not identify any of the respondents. There were so many witnesses in the case, however, various respondents were shown to the witnesses Ishwariprasad (PW-14), Nawab Prasad (PW-28), Balkishan (PW-15), Chokhelal (PW-
16) whereas a few respondents were shown to Mijajilal (PW-22) and Ranjeet Singh. If there were so many eyewitnesses then identification parade should have been arranged by their maximum number of witnesses at a time. It is nowhere clear that while recording TIP memo Ex.P-40, witnesses Ishwariprasad (PW-14), Nawab Prasad (PW-28), Chokhelal (PW-16) or Mijajilal (PW-22) were not called whereas Ranjeet Singh (PW-3) who participated in the TIP Ex.P-2 and Ex.P-40 could not identify any of the respondents as culprits. Three Naib Tahsildar, namely, Shri Aditya Sharma (PW-23), Shri P.K. Garg (PW-25) and Shri C.L. Bauddha (PW-2) have accepted that they did not select the persons who were mixed with the respondents for 6 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others identification. According to them, TIP document was already prepared. Names of the persons who mixed with accused were already mentioned in that memo. It is not observed by these three Naib Tahsildar that whether age and appearance of various persons who were mixed with the respondents were similar. Also the trial court has observed that some of the respondents had specific marks like wart or old scar of injury then if the eyewitnesses had seen such culprits they would have immediately mentioned that such respondent was identified due to that specific mark on his face. But in TIP memos Ex.P-2, P-29 and P-40 no reason for identification was mentioned by any of the witnesses.
(8) On the basis of the aforesaid discussion, it would be apparent that the police officials identified some of the respondents but possibility cannot be ruled out that they would have seen them after their arrest whereas independent witnesses could not identify any of the respondents. TIPs were arranged by three different Naib Tahsildar but they were arranged in a prototype manner. Possibility cannot be ruled out that some of the respondents were identified by fluke. If the police officers had seen the entire incident then how it was possible that they could not identify respondents, namely, Rajendra, Pappu @ Lakshman or Mendu. Some of the police officials could identify Jaswant and identification of Jaswant was arranged twice. In TIP Ex.P-2 only Kedar could be identified by three persons and Chokhelal identified Harvilas whereas Ranjeet Singh (PW-3) could not identify any of them. Hence, it would be apparent that the police officials identified the respondents by fluke or because 7 Criminal Appeal No.613/2003 State of Madhya Pradesh Vs. Ramvaran & others they had already seen the respondents when they were arrested. The trial court has rightly discarded the TIP memos Ex.P-2, P-29 and P-40. The trial court has mentioned the various judgments of Hon'ble the Apex Court in relating to the TIP and therefore, it is not required to repeat them here. When the doubt is created and all the TIPs have lost their evidentiary value then there was nothing on record before the trial court so that the respondents would have been convicted for the aforesaid crimes.
(9) On the basis of the aforesaid discussion, there is no substance in the appeal filed by the State and therefore consequently it is hereby dismissed.
(10) Almost respondents are on bail. Their presence is no more required and therefore it is directed that their bail bonds shall stand discharged. Presence of any of the respondents is not required and therefore no warrant be issued against respondents No.1 or 13.
(11) A copy of the order be sent to the court below along with its record for information.
(N.K. Gupta) (G.S. Ahluwalia)
Judge Judge
16/11/2016 16/11/2016
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