Madhya Pradesh High Court
Dheeraj vs State Of M.P. on 14 March, 2018
1 CrA 264/2005 &
CrA 297/2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB: Hon'ble Shri Justice G. S. Ahluwalia
CRA 264/2005
Raghuveer
Vs.
State of MP
And
CRA 297/2006
Dheeraj
Vs.
State of MP
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Shri B.S.Gaur, counsel for appellant Raghuveer in CRA
264/2005 Smt.Kushum Sharma, counsel for appellant
Dheeraj in CRA 297/2006.
Shri Devendra Chaubey, Public Prosecutor for the State in both
Criminal Appeals.
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JUDGMENT
(Delivered on 14/03 /2018) This Judgment shall also dispose of Criminal Appeal No. 297/2006 filed by appellant- Dheeraj.
(2) Criminal Appeal No.264/2006 has been filed against the judgment and sentence dated 05/04/2005 passed by First Additional Sessions Judge, Shivpuri in Special Sessions Trial No.52/2004 by which appellant- Raghuveer has been convicted under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act and sentenced to undergo the rigorous imprisonment of five years and fine of Rs.2,000/- with default stipulation.
(3) It appears that appellant Dheeraj who has filed Criminal Appeal No.297/2006, had absconded during the pendency of Trial and was arrested at a later stage and accordingly, he has 2 CrA 264/2005 & CrA 297/2006 been convicted under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act by judgment and sentence dated 15/02/2006 passed by Special Judge (MPDVPK Act), Shivpuri in Special Sessions Trial No.52/2004 and has been sentenced to undergo the rigorous imprisonment of five years and fine of Rs.2,000/- with default imprisonment.
(4) The necessary facts for the disposal of these appeals in short are that in the night of 23/08/2004, the complainant Suyalal was sleeping along with his wife Mathura Bai, in his house. At about 10:00- 11:00 pm, they heard some noise of their oxes and, therefore, his wife Mathura Bai lit an oil lamp (Diya) and came outside the house after opening the door. At that time, two persons by pushing her, entered inside the house and assaulted complainant Suyalal by means of a Khardua and forcibly took away the silver bangles of Mathura Bai. The appellant Dheeraj was identified by the complainant Suyalal and Mathura Bai on the spot, whereas they could not identify the other accused. The miscreants after leaving the house, locked the door from outside. In the morning, the son of the complainant came to the house and opened the door and informed the villagers and accordingly, a FIR was lodged in the Police Station Dehat, Shivpuri, on the basis of which the police registered the offence in Crime No.190/2004 under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act. The injured persons were sent for medical examination and on the memorandum of the appellants, silver bangles were seized. The statements of witnesses were recorded. After completing the investigation, the police filed the charge-sheet under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act. (5) The trial Court framed the charges under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act by order dated 11/10/2004.
(6) The appellants abjured their guilt and pleaded not guilty.
3 CrA 264/2005 & CrA 297/2006 (7) The prosecution, in order to prove its case, examined Suyalal (PW1), Mathura Bai (PW2), Sidharth (PW3), Lakhan Singh (PW4), Dr. Ratnesh Jain (PW5), Bhagwant Singh (PW6), Naval Singh (PW7), Shivnarayan Singh Sengar (PW8) and Sajid Vidyarthi (PW9). The appellants examined Shrichand (DW1) in their defence.
(8) It appears that during the pendency of trial, the appellant Dheeraj absconded and, therefore, his case was separated and the trial Court by judgment dated 05/04/2005, convicted the appellant Raghuveer for offence under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act. It appears that appellant Dheeraj was subsequently arrested on 25/05/2005 and the trial Court by judgment dated 15/02/2006 convicted the appellant Dheeraj for offence under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act. Both the appellants have been sentenced to undergo the rigorous imprisonment of five years and fine of Rs.2,000/- with default imprisonment.
(9) Challenging the judgment of conviction and sentence passed by the trial Court, it is submitted by the counsel for the appellants that the prosecution has failed to establish beyond reasonable doubt that the silver bangles were seized from the possession of the appellants and they were duly identified by Mathura Bai (PW2). It is further submitted that it is an admitted fact the enmity was going on between the complainant and the accused/appellant Dheeraj and since the complainant Suyalal had grabbed the land of his brother and the appellant Dheeraj, who is brother-in-law of his brother, had intervened in the matter and had compelled the complainant to leave the additional land grabbed by him, as a result of which the appellants have been falsely implicated. It is further submitted that the prosecution has failed to establish that the appellant Raghuveer was duly identified by 4 CrA 264/2005 & CrA 297/2006 the complainant Suyalal and the injured Mathura Bai because the police for the reason best known to it, did not conduct the Test Identification Parade of the appellant Raghuveer although his name was not disclosed by the complainant and the injured Mathura Bai. It is further submitted that dock identification of the accused is a weak type of evidence and, therefore, until and unless it is corroborated by other evidence, the same may not be sufficient to hold the appellants guilty.
(10) Per contra, it is submitted by the counsel for the State that the prosecution has established beyond reasonable doubt that the appellants had assaulted the complainant Suyalal and Mathura Bai and they had taken away the silver bangles of Mathura Bai which were seized from the possession of the appellants and were duly identified by the witnesses. Under these circumstances, the guilt of the appellants has been established beyond reasonable doubt.
(11) Heard the counsel for the parties. (12) Dr. Ratnesh Jain (PW5) had found the following injuries on the body of injured Mathura Bai:-
(i) Complain of pain in the abdomen and x-ray was advised.
(ii) Abrasion on right elbow ½ x ½ cm.
Both the injuries were caused by hard and blunt object and MLC report is Ex.P3.
Dr. Ratnesh Jain (PW5) had found the following injuries on the body of Suyalal:-
(i) Contusion 3 cm x 2 cm over left side of scalp.
(ii) Contusion 3 cm x 2 cm over right shoulder.
(iii) Complain of pain on left shoulder.
(iv) Abrasion ½ cm x ½ cm on left leg.
All the injuries were caused by hard and blunt object. The injuries were simple in nature and the MLC report of 5 CrA 264/2005 & CrA 297/2006 Suyalal is Ex.P4.
(13) Suyalal (PW1) has stated that on the date of incident, he was sleeping along with his wife Mathura Bai (PW2) in his house. At about 12:00 in the night, both the appellants were entered inside the house and assaulted them and took away the silver bangles of his wife Mathura Bai. The bangles were of ½ kg and were of Rs.4,000/-. Thereafter, the appellants locked the complainant from outside the house. The appellant Dheeraj is the relative of his elder brother, therefore, he is known to the complainant. At about 05:00-05:30 in the morning, his son Sidharth came to his house and opened the door. The entire incident was narrated by this witness to his son. Thereafter, the FIR was lodged in Police Station Dehat, Shivpuri which is Ex.P1 and this witness was sent for medical examination. After the bangles were seized, this witness was called where he along with his wife Mathura Bai had identified the bangles and the identification memo is Ex.P2. In cross- examination, this witness has specifically stated that both the persons had not covered their faces, however, he fairly conceded that after arrest of the appellants, the police had called him in the Police Station and the bangles were shown to him in the police station and his signatures were obtained by the SHO. He further admitted that no Test Identification Parade of any accused was done by the police. He further admitted that neither in the FIR Ex.P1 nor in his case diary statement Ex.D1 he had disclosed the specific features of the bangles. This witness was also suggested about his dispute with his brother and it was further suggested that the appellant Dheeraj had intervened in the matter and as the appellant - Dheeraj insisted that the complainant should leave the additional land which he had grabbed and on that issue, there was some scuffle between the parties. The suggestions were denied. He further denied the suggestion that he had 6 CrA 264/2005 & CrA 297/2006 sustained the injuries because of fall on the ground. (14) Mathura Bai (PW2) has also narrated the same incident. She further stated that after they were beaten by the accused persons, she and her husband Suyalal (PW1) fell unconscious and they regained consciousness in the morning. Blood was oozing out from the head of her husband. She further admitted that after arrest of the appellants, the second accused (Raghuveer) was shown by the police in the police station. It was further admitted in her cross-examination that the bangles were shown by the police in the police station and her thumb impressions were also obtained by the police. It was further admitted by this witness that only two bangles were shown to her by the police and they were not mixed with other bangles. She further admitted that the appellant Dheeraj is the relative of her brother-in-law. She further admitted that partition has already taken place between Suyalal and his brother. She denied the suggestion that they had grabbed land of her brother-in-law. She further denied that the appellant Dheeraj had come to intervene in the matter and further denied that appellant Dheeraj had compelled Suyalal (PW1) to leave the additional land. (15) Sidharth (PW.3) is the son of Suyalal (PW1) and Mathura Bai (PW2). He has stated that when he came in the morning he found that the door was locked from outside. He opened the door and found that his parents were lying in an injured condition. He was informed by his father about the incident. Thereafter, the FIR was lodged by his father. (16) Lakhan Singh (PW4) is the witness of seizure of silver bangle from the possession of the appellant Dheeraj, whereas Naval Singh (PW7) is the witness of seizure of silver bangle from the possession of the appellant Raghuveer. (17) Bhagwant Singh (PW6) has stated that the counter of FIR was sent to the concerning Magistrate. The copy of the 7 CrA 264/2005 & CrA 297/2006 counter of FIR is Ex.P5 and photo copy is Ex.P5-C. The dispatch register dated 24/08/2004 is ExP6 and the entry in the Dak Book for sending the copy of counter of FIR to the concerning Magistrate is Ex.P7.
(18) Shivnarayan Singh Sengar (PW8) has stated that on 24/08/2004, at about 15:40 the complainant Suyalal (PW1) along with his wife Mathura Bai (PW2) and his son had lodged the FIR which is Ex.P1. The statements of the witnesses were recorded. On 28/08/2004, the appellant Dheeraj was arrested and a silver bangle was seized along with Khadrua. Memorandum of the appellant Dheeraj is Ex.P12 and seizure memo is Ex.13. Similarly, the appellant Raghuveer was arrested on 02/9/2004 vide arrest memo Ex.P10. The memorandum of the appellant Raghuveer is Ex.P8 and the seizure of a silver bangle and Khadrua was effected by seizure memo Ex.P9. On 24/08/2004 itself, spot map Ex.P14 was prepared. In cross-examination, this witness has admitted that the name of the appellant Raghuveer was not disclosed by the witnesses in the FIR as well as in their case diary statements and under such circumstances, it was necessary to hold the Test Identification Parade of the appellant Raghuveer but that was not done. In further explanation, this witness has stated that as the name of appellant Raghuveer was told by other witnesses, therefore, the Test Identification Parade was not done.
(19) Sajid Vidyarthi (PW9) is the Councilor of Municipal Council, Shivpuri, who has stated that he had conducted the Test Identification of two silver bangles and both the witnesses Suyalal and his wife Mathura Bai had identified their bangles and identification memo is Ex.P2. In cross- examination, this witness has admitted that the identification memo was prepared by the police and all the entries were made by the police. He had signed the memo in the Police 8 CrA 264/2005 & CrA 297/2006 Station Dehat. When he reached the police station, the complainant Suyalal and Mathura Bai were already sitting in the police station and only two silver bangles were kept. (20) If the evidence of Suyalal (PW1) and Mathura Bai (PW2) is considered, then it is clear that the appellant Dheeraj is the close relative of the brother of Suyalal. A specific suggestion was given to both these witnesses, that a dispute on the question of encroachment over the land was going on between the brothers. A specific suggestion was given that Suyalal had grabbed the land of his brother. A specific suggestion was given that the appellant Dheeraj had come to intervene in the matter. Dheeraj had forced Suyalal to leave the additional land which he had grabbed. Thus, it is clear that Suyalal (PW1) and Mathura Bai (PW2) had a motive to falsely implicate the appellant Dheeraj.It is well- established principle of law that motive is a double- edged weapon and if it provides a cause for committing an offence, then at the same time, it provides a motive to falsely implicate a person. Therefore, under these circumstances, it would be essential to scrutinize the evidence of Suyalal (PW1) and Mathura Bai (PW2) minutely. Mathura Bai (PW2) has stated that after they were assaulted, she and her husband Suyalal (PW1) fell unconscious and they regained consciousness in the morning. Suyalal (PW1) and Mathura Bai (PW2) have stated that they had sustained injuries because of assault given by the appellants. Dr. Ratnesh Jain (PW5) has proved the injuries on the bodies of Suyalal (PW1) and Mathura Bai (PW2),however, only abrasions were found on the bodies of the injured persons. No internal injury was found. Even X-ray report has not been produced which clearly indicates that no fracture was suffered by Suyalal (PW1) and Mathura Bai (PW2). Even Suyalal (PW1) and Mathura Bai (PW2) had not stated that they had sustained any fracture. Mathura Bai (PW2) had 9 CrA 264/2005 & CrA 297/2006 sustained an abrasion on right elbow and had complained of pain in her abdomen. It is a matter of common knowledge that due to an abrasion on the right elbow nobody would fall unconscious and would remain unconscious for the remaining whole night. Similarly, Suyalal had sustained three abrasions; one was on his scalp, one was on his right shoulder and one was on his left leg. Mathura Bai (PW2) had stated that their clothes were stained with blood but the bloodstained clothes were not seized by the police. Mathura Bai (PW2) has stated that her husband Suyalal (PW1) had also fallen unconscious, whereas Suyalal (PW1) does not say so. If the witnesses were locked from outside, then they could have raised alarm inviting attention of the neighbourers but nothing of that sort was done. In order to avoid the situation, it was stated by the witnesses that this incident had taken place in a room situated in the field. When the witnesses had sustained bleeding injuries then the blood should have fallen on the ground also, however, the police has not seized the bloodstained earth. Thus, it is clear that if a person is lying unconscious, then either the cot on which the person was lying, or the ground should have contained the bloodstains. Nothing of that sort was found. Furthermore, according to the prosecution case, the appellant Raghuveer was unknown to the witnesses. Under these circumstances, in view of the admission made by Shivnarayan Singh Sengar (PW8) himself, holding of Test Identification Parade for identifying the appellant Raghuveer was must, but that was not done. So far as the explanation given by Shivnarayan Singh Sengar (PW8) that since Raghuveer was named by other witnesses, therefore, he did not consider it proper to hold Test Identification of Raghuveer is concerned, the same is false for the simple reason that according to the prosecution case, the incident had taken place in a house which is situated at an isolated place and 10 CrA 264/2005 & CrA 297/2006 there is no other witness except Suyalal (PW1) and Mathura Bai (PW2). Thus, holding of Test Identification Parade of the appellant Raghuveer even according to Shivnarayan Singh Sengar (PW8) was essential. So far as the recovery of silver bangle from the possession of the appellant Dheeraj is concerned, the same has not been proved by the prosecution beyond reasonable doubt.
(21) Lakhan Singh (PW4) and Naval Singh (PW7) have stated about the recovery of silver bangles. Mere recovery of silver bangles from the possession of the appellants Raghuveer and Dheeraj would not be sufficient until and unless the prosecution succeeds in establishing that the bangles seized from the possession of the appellants are that of the complainant party.
(22) Suyalal (PW1) and Mathura Bai (PW2) have specifically stated that the police had shown the bangles to them. In this context, the evidence of Sajid Vidyarthi (PW9) assumes importance and is a reflection on the working of the police authorities. Sajid Vidyarthi (PW-9) has specifically stated that he had conducted the Test Identification of silver bangles and the identification memo is Ex.P2. However, in cross- examination, this witness has fairly conceded that the identification memo was prepared by the police and other entries were made by the police and he had accordingly signed the memo. He has further stated that when he reached the police station, he found that Suyalal (PW1) and Mathura Bai (PW2) were already sitting in the police station and two silver bangles were identified by them. Thus, it is clear that an entry in the identification memo ExP3 to the effect that other bangles of silver nature is mixed, is false and in view of the admission of Sajid Vidyarthi (PW-9) in his cross-examination that all the entries were made by the police, clearly establishes that the police had, in fact, created the evidence 11 CrA 264/2005 & CrA 297/2006 in connivance with the complainant party. Sajid Vidyarthi (PW9) has also admitted in his cross-examination that the SHO had obtained his signatures. Sajid Vidyarthi (PW9) has not stated that he had obtained the signatures of the witnesses on the identification memo. On the contrary, he has stated that everything was done by the police including preparation of identification memo. If the evidence of Suyalal (PW1) and Mathura Bai (PW2) is read conjointly, then it is clear that the identification memo was prepared by the police and the signatures of the witnesses were obtained by the police and thereafter, the police has obtained the signatures of Sajid Vidyarthi (PW9) on the identification memo. Thus, it is clear that the police in connivance with the complainant party had, in fact, created a false case against the appellants. Under these circumstances, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the appellants had assaulted Suyalal (PW1) and Mathura Bai (PW2) and had taken away the silver bangles of Mathura Bai. The prosecution has also failed to establish that the silver bangles seized from the possession of the appellants Dheeraj and Raghuveer were that of Mathura Bai. Accordingly, it is held that that the prosecution has miserably failed to establish the appellants guilty for offence under Section 394/34 of IPC r/w Section 11/13 of MPDVPK Act and accordingly, the appellants are acquitted of all the charges. (23) Consequently, the judgment of conviction and sentence dated 05/04/2005 passed by First Additional Sessions Judge, Shivpuri in Special Sessions Trial No.52/2004 convicting the appellant Raghuveer and the judgment of conviction and sentence dated 15/02/2006 passed by Special Judge (MPDVPK Act), Shivpuri passed in Special Sessions Trial No.52/2004 convicting the appellant Dheeraj are set aside. (24) The appellants are on bail. Their bail bonds and surety 12 CrA 264/2005 & CrA 297/2006 bonds are discharged.
(25) As this Court has already come to the conclusion that silver bangles, were seized from the possession of appellants Raghuveer and Dheeraj each. The silver bangles were handed over to the complainant Suyalal (PW1) in interim custody by the trial Court by order dated 03/02/2004 with a condition that till final disposal of the case, the complainant shall neither alter the nature of silver bangles nor sell the same. Since this Court has already come to the conclusion that the silver bangles seized from the possession of the appellants Dheeraj and Raghuveer were not that of Mathura Bai (PW2) and since the same have been taken in custody by complainant Suyalal (PW2), under these circumstances, it is directed that Suyalal (PW1) shall immediately deposit the silver bangles in the trial Court within a period of one month from today and thereafter, the trial Court shall hand over the same to the appellants Dheeraj and Raghuveer. In case, the complainant Suyalal (PW1) fails to deposit the silver bangles before the trial Court within the stipulated period, then the trial Court shall be obliged to proceed in accordance with law for recovery of silver bangles from the complainant Suyalal (PW1).
(26) Both the appeals succeed and are hereby allowed.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2018.03.14 18:38:40 +05'30'