Madhya Pradesh High Court
Dewa Alias Chanchal Alias Manoj Namdeo vs The State Of Madhya Pradesh on 14 August, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.2465/2007
Deva @ Chanchal @ Manoj Namdeo & another
VERSUS
State of Madhya Pradesh
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Ku. Sarita Koshti, Advocate from legal aid for the appellants.
Shri Ajay Tamrakar, Panel Lawyer for the State/respondent.
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J U D G M E N T
(Delivered on the 14th day of August, 2012) The appellants have preferred this appeal against the judgment dated 3.10.2007 passed by the learned Third Additional Sessions Judge, Bhopal in S.T.No.67/2007, whereby the appellants were convicted for offence punishable under sections 392 read with section 397 of IPC and each sentenced for 7 years' rigorous imprisonment with fine of Rs.3,000/-. In default of payment of fine, each of them has to undergo for 6 months' additional rigorous imprisonment.
2. Prosecution's case, in short, is that, on 7.4.2005, the complainant Shyamlal Rathore (P.W.2) was travelling up to Bhopal in a train Bina-Bhopal Passenger. At about 8.30 p.m. in the night, near the Railway Station Sukhi Sevaniya,
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Criminal Appeal No.2465 of 2007 some culprits robbed the complainant and other passengers like Ashok Patil (P.W.13), Manoj Vishwakarma (P.W.3), Vinod Kumar Rathore (P.W.1), Vinod Sen (P.W.4) and so many other persons after showing them daggars. Culprits were four in number. A purse with Rs.1,700/-, I-card and other documents were taken from the complainant Shyamlal, whereas a sum of Rs.6,000/- and I-card from the victim Ashok, a sum of Rs.3,200/- with I-card and visiting cards from Manoj Vishwakarma and a sum of Rs.2,000/- was robbed from the victim Vinod Sen. After committing the robbery, the culprits got down near the Railway Station Sukhi Sevaniya. The complainant Shyamlal Rathore had lodged an FIR at Police Station GRP, Bhopal on the same very day when train reached to the Bhopal Railway Station. ASI Shri Khandalekar (P.W.8) had recorded the FIR, Ex.P/1 and registered the case. After sometime, the appellants and other persons were arrested by the police. They confessed the crime and robbed property was seized from them. The appellant Deva was identified by Manoj Vishwakarma and Vinod Sen, whereas the appellant Amjad was identified by Vinod Sen. After due investigation, a charge-sheet was filed before JMFC, Bhopal who committed the case to the Sessions Court, Bhopal and ultimately it was transferred to the Third Additional Sessions Judge, Bhopal.
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Criminal Appeal No.2465 of 2007
3. The appellants abjured their guilt. They did not
take any specific plea but, they have stated that they were falsely implicated in the matter. No defence evidence was adduced from the side of the appellants.
4. After considering the prosecution's evidence, the learned Third Additional Sessions Judge, Bhopal has convicted the appellants for the offence punishable under section 392 read with section 397 of IPC and sentenced them as mentioned above.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellants has submitted that the appellants were falsely implicated in the matter.
Accused persons were shown to the various witnesses in the police station before the conduction of the test identification parade and therefore, test identification parade has no evidentiary value. Similarly, some cash was seized from the appellants which was not identifiable. It is alleged that some identifiable documents were seized from the appellants but, those documents were planted with the appellants. There was no possibility that the appellants would have kept those documents with them. There was no reason for keeping those documents. Under such circumstances, a case is cooked against the appellants because they were arrested in another case and therefore, the present case was also loaded
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Criminal Appeal No.2465 of 2007 upon them. In alternate, it is submitted that the appellant Amjad remained in the custody for 6 years and therefore, his sentence may be reduced to the period, which he has already undergone in the custody.
7. On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is required to be done in the findings given by the trial Court.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered that as to whether the appellants cannot be convicted for offence punishable under section 392 read with section 397 of IPC?
If yes, then, whether they can be convicted for any lesser offence? And whether the sentence imposed upon the appellants can be reduced?
9. It is apparent that there was no named FIR against any of the appellants. Robbery was done by unknown persons. In such a case, there should be sufficient circumstantial evidence to connect the appellants with the crime. The appellants could be connected with the crime by two different methods. Firstly, they should have been identified in the test identification parade according to the law and secondly, it should be proved that they had robbed
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Criminal Appeal No.2465 of 2007 the property seized soon after the incident and therefore, a presumption under section 114 of Evidence Act may be drawn. In the present case, the appellant Deva was identified in the test identification parade vide memo, Ex.P/2 and Ex.P/3 i.e. by the victims Manoj Vishwakarma and Vinod Sen, whereas the appellant Amjad was identified by Vinod Sen and a memo Ex.P/3 was prepared. Witness Manoj (P.W.3) has accepted in para 5 of his cross- examination that he saw the culprits in the police station and thereafter, a test identification parade was arranged. Similarly, Vinod Sen (P.W.4) has also accepted in his cross- examination that the culprits were shown to him in the police station. If the appellants were shown to these witnesses at the police station then, it was not difficult for these witnesses to identify the appellants in the test identification parade. The victim Shyamlal Rathore could not identify any of the appellants in the test identification parade vide memo, Ex.P/4. Under such circumstances, test identification parade loses its importance and therefore, by memos Ex.P/2 and Ex.P/3, it cannot be said that the victims Manoj Vishwakarma and Vinod Sen had lawfully identified the actual culprits. Actually they identified the culprits who were shown in the police custody. Under such circumstances, the importance of test identification parade
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Criminal Appeal No.2465 of 2007 goes away and by such test identification, no evidence is created against the appellants.
10. ASI Shri Mogarkar (P.W.10) has stated before the trial Court that on enquiry, the appellant Amjad has stated that he kept a sum of Rs.1,000/- in a box in his house and thereafter, a memo Ex.P/26 under section 27 of Evidence Act was recorded and then, a sum of Rs.1,000/- was recovered as per seizure memo, Ex.P/28. Similarly, he gave a dagger and some documents e.g. a photocopy of PAN card issued by the Income Tax department in the name of Ashok Patil and a monthly ticket of Ashok Patil, which were kept below a stone near the Railway Station Sukhi Sevaniya and a seizure memo Ex.P/13 was prepared. Similarly, a purse with some currency notes, one daggar and 3 visiting cards of Manoj Vishwakarma were seized from the appellant Deva vide seizure memo Ex.P/18. A colour TV was also seized from the appellant Deva by seizure memo Ex.P/21.
11. Witnesses to the seizure memo, Ex.P/28 and Ex.P/ 13 did not support the testimony of Shri Mogarkar. Witnesses Omprakash (P.W.7) and Salim (P.W.11) were examined but, they turned hostile. They did not support the seizure done by ASI Shri Mogarkar. Similarly, the witnesses to the document, Ex.P/18 namely Ram Prasad (P.W.7) and Anwar (P.W.12) have also turned hostile. Under such
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Criminal Appeal No.2465 of 2007 circumstances, it is to be seen that whether the testimony of ASI Shri Mogarkar can be believed?
12. So far as the seizure of cash is concerned, it is not material in the case because after recording a memo under section 27 of Evidence Act, a very little portion of that memo can be admitted in the evidence under section 27 of the Evidence Act and therefore, if it is said by the appellants that they kept any money at any place then, seizure of that money creates no evidence against the appellants because currency cannot be identified unless their serial numbers were given in the FIR. Currency seized from the appellants by the police could be of their own. Amount seized from the appellants was not so huge, so that it can be said that they could not have that much amount of currency with them.
Importance of the seizure is for those articles which could be connected with the robbery. ASI Shri Mogarkar has seized a purse with 3 visiting cards of the victim Manoj Vishwakarma.
13. If the FIR, Ex.P/1 is perused then, it would be apparent that Manoj Vishwakarma did not give the details of such documents which were robbed from him. If identity card of the victim Manoj Vishwakarma was recovered from the appellants then, it could be said to be an evidence against the appellant Deva, whereas a person who keeps
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Criminal Appeal No.2465 of 2007 visiting cards may have the visiting cards in bulk and therefore, 3 visiting cards could be obtained from Manoj Vishwakarma after the arrest of the appellant Deva and shown to be seized from him. Visiting cards were not at all important for the appellant Deva. There was no need to keep those visiting cards intact. Under such circumstances, where the independent witnesses turned hostile, seizure of the visiting cards from the appellant Deva comes in the clouds of doubt. Testimony of Shri Mogarkar cannot be believed to this point that he seized 3 visiting cards of Manoj Vishwakarma from the appellant Deva. If any doubt is created then, benefit of doubt is to be given to the accused and therefore, it is not proved beyond doubt that any identifiable property was seized from the appellant Deva, so that he could be connected with the crime.
14. If the position of document Ex.P/13 is seen then, it would be apparent that the trial Court has marked a document of seizure relating to cash of Rs.1,000/- from the appellant Amjad as Ex.P/10, Ex.P/13 and Ex.P/25. It is highly surprising that one single document was exhibited with three different numbers in the statements of three different witnesses. Similarly, seizure memo for the property seized from the appellant Amjad was exhibited as Ex.P/11 and Ex.P/13, whereas Ex.P/13 was a number given to the
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Criminal Appeal No.2465 of 2007 seizure memo by which a sum of Rs.1,000/- was seized from the appellant Amjad. However, the documents Ex.P/11 and Ex.P/13, which were shown to the witnesses Omprakash and Salim were not at all referred by ASI Shri Mogarkar. If the entire evidence of ASI Shri Mogarkar is perused then, it would be clear that he proved the memo under section 27 of Evidence Act given by the appellant Amjad as Ex.P/32 - Ex.P/6 but, thereafter, it is mentioned that the property seized from the appellant Amjad was recovered by a memo Ex.P/32, whereas no such seizure memo is available, which has the title Ex.P/32. It is possible that the document exhibited as Ex.P/11 or Ex.P/13 was to be shown as Ex.P/32 but, it was not shown in such a manner. It appears that the learned Additional Sessions Judge did not take care about the proper recording of the evidence. It appears that evidence was recorded by the prosecutor himself and the learned Presiding Officer did not take care to see that the appropriate documents should be exhibited as per the statement of ASI Shri Mogarkar.
15. However, if document Ex.P/11/Ex.P/13 is considered as document Ex.P/32, it is mentioned that one copy of PAN card and monthly ticket of Shri Ashok Patil was recovered from the appellant Amjad. That recovery is shown from an open place. It is mentioned that the property was
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Criminal Appeal No.2465 of 2007 found below a stone near Railway station Sukhi Sevaniya. The documents shown to be seized from the appellant Amjad were not at all important for the appellant Amjad and there was no possibility that he could have kept those documents with security. The witness Ashok Patil did not blame that his monthly railway pass was robbed and hence its recovery from the appellant Amjad appears to be fishy. Under such circumstances, the possibility cannot be ruled out that those photocopies were planted and shown to be recovered from the appellant Amjad. Since the witnesses relating to the seizure memos Ex.P/11, Ex.P/13 and Ex.P/32 were turned hostile, the appellants were shown to the witnesses prior to the arrangement of the test identification parade, such possibility cannot be ruled out that since the appellants were arrested and police was interested to load the present case upon the appellants to show its success, such documents were shown to be seized from the appellants. Under such circumstances, the testimony of ASI Shri Mogarkar cannot be believed, it is not proved beyond doubt that any identifiable document was seized from the appellant Amjad.
16. Since the testimony of ASI Shri Mogarkar appears to be disbelievable then, it cannot be said that any identifiable substance was seized from the appellant Amjad
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Criminal Appeal No.2465 of 2007 and therefore, it cannot be said that any robbed property was seized from the appellant Amjad.
17. If any doubt is created then, benefit of doubt is to be given to the accused persons. Looking to the entire evidence of the prosecution, it appears that no identifiable substance could be seized from either of the appellants. Under such circumstances, where test identification parade is not believable and no identifiable substance could be seized from the appellants then, no presumption under section 114 of the Evidence Act can be directed against the appellants. There is no evidence to show that the appellants were the persons who committee the robbery with the various victims in the train.
18. Under such circumstances, prosecution could not prove its case beyond doubt that the appellants were the persons, who committed the robbery in the train with various victims including the complainant Shyamlal. Under such circumstances, the appellants cannot be convicted for the offence punishable under section 392 read with section 397 of IPC or any inferior offence of such nature. The appeal filed by the appellants appears to be acceptable and therefore, it is hereby accepted. Conviction as well as the sentence directed against the appellants for the offence punishable under section 392 read with section 397 of IPC is
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Criminal Appeal No.2465 of 2007 hereby set aside. The appellants are given benefit of doubt and they are acquitted from all the charges appended upon them.
19. Registry is directed to issue a release warrant against the appellant, who is in custody. The appellant who is on bail is no more required to appear before this Court and therefore, it is directed that his bail bonds shall stand discharged.
20. Copy of the judgment be sent to the trial Court with its record for information and compliance (if any).
(N.K.GUPTA) JUDGE 14/8/2012 Pushpendra