Madhya Pradesh High Court
Murarilal & Ors. vs The State Of M.P. on 27 October, 2016
Author: N.K. Gupta
Bench: N.K. Gupta, G.S. Ahluwalia
1 Criminal Appeal No.604/2002
Murarilal and others Vs. State of M.P.
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.604 of 2002
Murarilal and others
-Vs-
State of Madhya Pradesh
For the appellants : Shri RKS Kushwah,
Advocate.
For respondent/State : Shri J.M. Sahni, Panel
Lawyer
JUDGMENT
(27/10/2016) Per N.K. Gupta, J.
The appellants have preferred the present appeal being aggrieved with the judgment dated 29.10.2002 passed by the Special Judge under Madhya Pradesh Dakaiti Vyapaharan Prabhavit Kshetra Adhiniyam, Bhind (M.P.) in Special Case No.29/2000 whereby each of the 2 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. appellants has been convicted and sentenced as under:
Section Code/Act Sentence In default of
payment of
finie
395 IPC Seven Years' RI with a Two months'
fine of Rs.500/- each additional
sentence
397 IPC Seven Years' RI with a Two months'
fine of Rs.500/- each additional
sentence
364-A IPC Imprisonment for life Six months'
(Rigorous) with a fine of additional
Rs.2,000/- sentence
302 IPC Imprisonment for life Six months'
(Rigorous) with a fine of additional
Rs.2,000/- sentence
11, 13 MPDVPK No separate sentence -
has been passed.
(2) Prosecution's case, in short, is that on 03.02.2000, the complainant Bramhanand (PW-4) along with his son-in-law Swadesh Kumar Joshi (PW-5) and deceased Balkishan @ Laddu left the village Janora for village Paryaya to hold a meeting relating to the marriage of the niece of the complainant Bramhanand. On the way, accused Munnalal hailed them. When they reached near accused Munnalal then appellants and Munnalal put guns on their heads and thereafter nooses were put on their necks. Then, the accused persons including appellants robbed a sum of Rs.240/-, 60/- and 20,200/- from the pockets of Swadesh Kumar Joshi, Bramhanand and the deceased Balkishan @ Laddu respectively. One watch was also taken from Bramhanand. Thereafter, the appellants and Munnalal took them to a lonely place in the Beehad. They were confined 3 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. in that area up to 09.02.2000. On 09.02.2000, when accused Murarilal, Suratram and Ramjilal etc went to the spot, Munnalal handed over the deceased Balkishan to them. Munnalal and accused Murarilal, Suratram and Ramjilal beat the deceased Balkishan with lathis [sticks] and consequently Balkishan died. His dead body was hidden in a cave in the Beehad. Thereafter, Bramhanand and Swadesh Kumar Joshi were confined by the appellants in the Beehad upto 17.02.2000 and on 17.02.2000 at about 08:00 pm they were released. They tried to look for the dead body of the deceased Balkishan. Again on 18.02.2000, they tried to search out the dead body of the deceased Balkishan and they found it in Beehad. Thereafter, when they were going to Police Station Ater, on Raipura trisection, they met with S.S. Parmar (PW-15), the former Station House Officer of the Police Station Ater and a Dehati Nalisi Ex.P-5 was recorded. Station House officer -S.S. Parmar (PW-15) prepared the panchayatnama lash of the deceased Balkishan @ Laddu and dead body was sent for post mortem.
(3) During this time, Ramkumar (PW-7), brother of the complainant Bramhanand, lodged a missing persons report Ex.P-13 for Bramhanand, Swadesh Kumar Joshi and deceased Balkishan @ Laddu. However that report was lodged at Police Station Phooph and the police officers of Police Station Phooph did not take any action on that report. When the complainant Brahmanand and witness Swadesh Kumar Joshi informed the police that they were abducted by the appellants and that they were beaten in the period between 03.02.2000 to 09.02.2000, therefore, Bramhanand and Swadesh Kumar Joshi were sent for their 4 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. medico-legal examination. Dr. H. D. Gupta (PW-2) examined them and gave MLC reports Ex.P-2 and P-3 respectively. Three simple injuries were found to the complainant Bramhanand whereas two simple injuries were found to the witness Swadesh Kumar Joshi which were two to seven days old. Dr. Rakesh Saxena (PW-10) performed the post mortem on the body of the deceased Balkishan @ Laddu and gave his report Ex.P-16. He found as many as seven contusions at various places of the body i.e. on the back, left shoulder, left side of the head, left thigh and chest. On the chest, three contusions were found under which left 07th and 08th ribs were found broken and left lung was torn and blood clots were present in pleura. The deceased died due to the aforesaid injuries and these injuries were sufficient to cause death in the natural course of life. Thereafter, the investigating officer arrested the appellants. A gun was recovered from accused Munnalal which was sent for its examination to Arms Mohorrir. Prosecution sanction was also obtained. Test Identification Parade was arranged against the appellants Subhash and Ramautar. The complainant Bramhanand and witness Swadesh Kumar Joshi identified them before the Naib Tahsildar, M.L. Gupta (PW-13) and a memo Ex.P9 was prepared. After due investigation, the chargesheet was filed before the Special Judge under Madhya Pradesh Dakaiti Vyapaharan Prabhavit Kshetra Adhiniyam (for brevity "the Special Act").
(4) The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter due to prior enmity. It was stated that the accused Munnalal had enmity with the complainant Bramhanand and therefore he 5 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. was falsely implicated in the matter, however, no defence evidence was adduced.
(5) Accused Murarilal, Suratram and Ramjilal, sons of Balister Sharma did not appear before the trial court and they were declared absconding. Then, the learned trial court after considering the prosecution evidence, convicted and sentenced the appellants as mentioned above.
(6) Accused Munnalal was also convicted of the aforesaid offences and it appears that no appeal has been preferred on his behalf.
(7) Appellant No.1 Murarilal expired during the pendency of the appeal and his name was deleted from cause-title of memo of appeal because the appeal stood abated against him.
(8) We have heard the learned counsel for the parties at length.
(9) The contention of the learned counsel for the appellants is that the appellants were implicated in the crime due to political enmity and enmity of the complainant Bramhanand with accused Munnalal. The story as told by the complainant and witnesses appears to be unnatural. Ocular evidence is heavily contradicted with the medical evidence and looking to the medical evidence such ocular evidence should be discarded. The learned counsel for the appellants has placed his reliance upon the judgment passed by the Apex Court in the case of "State of Madhya Pradesh Vs. Shiv Kumar and others"[(2006) 1 SCC (Cri) 99] to show the effect of contradiction of ocular evidence with medical evidence and also the appreciation of evidence. It is also submitted that 6 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. the alleged Dehati Nalisi Ex.P-5 was lodged with unnatural delay and therefore a strong suspicion was created on the entire story of the prosecution. Reliance has been placed upon the judgment passed by the Apex Court in the case of "Peddireddy Subbareddy and others Vs. State of Andra Pradesh"[AIR 1991 SC 1356]. The learned counsel for the appellants also placed reliance upon the judgment passed by the Apex Court in the case of "Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others"[(2001) 6 SCC 145] to show that the interested witnesses should be disbelieved where the defence is highly probable and if prosecution evidence is not clear, cogent or trustworthy then it should be discarded.
(10) In the light of the aforesaid judgments passed by the Apex Court, if the case of the appellants is considered then it would be clear from the prosecution evidence that there is a lot of contradiction between the medical evidence and the ocular evidence. Also various allegations as made by the Bramhanand (PW-4) and another eyewitness Swadesh Kumar Joshi (PW-5) appear to be unnatural and imaginary. To avoid repetition, it would be appropriate to consider the crime committed by the appellants under Section 302 and 364A of IPC simultaneously. Bramhanand (PW-4) and Swadesh Kumar Joshi (PW-5) have stated that when they were going to village Paryaya to see a boy for engagement of niece of the complainant Bramhanand, they were abducted by the appellants and one Munnalal. Thereafter, they were kept in the Beehad upto 09.02.2000 and on 09.02.2000, the absconded accused Murarilal etc. came to the Beehad where accused Munnalal handed over the 7 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. deceased Balkishan @ Laddu to them. They immediately assaulted the deceased Balkishan @ Laddu with lathis (sticks) causing his death and his dead body was hidden in a cave. Thereafter, the appellant kept the complainant and witness Swadesh Kumar Joshi at another place in the Beehad up to 17.02.2000 and thereafter they were released. They tried to look for the dead body of the deceased Balkishan @ Laddu and on 18.02.2000 they could trace it and thereafter they went to the Police Station Ater, however, in the midway Station House Officer of Police Station Ater Shri S.S. Parmar (PW-15) met them and thereafter a Dehati Nalisi, Ex.P-5) was lodged. In the description as given by complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5), an inherent defect in the prosecution story is as to why complainant Bramhanand, witness Swadesh Kumar Joshi and deceased Balkishan @ Laddu were abducted. If these persons were abducted on 03.02.2000 then no demand of ransom was made by the appellants to anyone in the period between 03.02.2000 to 09.02.2000. Also according to complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5), they were kept by the appellants even after the death of the deceased Balkishan @ Laddu for approximatey eight days and in those days no ransom was demanded by the appellants from anyone. It is strange that if the appellants were not interested in demand of the ransom then it was unnatural that they abducted these three persons viz. complainant Bramhanand (PW-4), witness Swadesh Kumar Joshi (PW-5) and deceased Balkishan @ Laddu without any reason. If it is presumed that the appellants had abducted them to kill the deceased 8 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Balkishan @ Laddu then a message could be sent to the absconding accused Murarilal, Suratram and Ramjilal, sons of Balister Sharma, on 04.02.2000 itself to come and take the deceased Balkishan @ Laddu with them. (11) Complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) have claimed that they were beaten by the appellants within the period of 03.02.2000 and 09.02.2000 but they did not mention that they were beaten after 09.02.2000. It is pertinent to note that the story of that assault done upon complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) was not mentioned in Dehati Nalisi Ex.P-5. Dr. H.D. Gupta (PW-2) examined the complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) and gave MLC reports Ex.P-2 and P-3 respectively. He found three simple injuries sustained by victim Bramhanand which could be 4 to 7 days' old whereas he found two simple injuries to the victim Swadesh Kumar Joshi which could be 2 to 4 days'old. If complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) were beaten prior to 09.02.2000 then their medical examination was done after 10 to 12 days from the incident of alleged assault and therefore injuries found to complainant Bramhanand (PW-
4) and victim Swadesh Kumar Joshi (PW-5) were not connected to the alleged incident of assault and hence there is no corroboration of the statements of complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) by medical evidence. Further, when they were continuously beaten for 3-4 days then it is surprising that only 2-3 injuries were found to them. It is not the claim of the complainant Bramhanand and victim Swadesh Kumar 9 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Joshi that injuries caused to them were healed prior to lodging of FIR.
(12) Secondly, according to complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5), they were released by the appellants in the evening of 17.02.2000 and they tried to search for the dead body of deceased Balkishan @ Laddu. They searched it for a longer period and on 18.02.2000 they could trace it and thereafter they lodged Dehati Nalisi Ex.P-5. When the deceased Balkishan @ Laddu was killed before complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) and his dead body was shifted to a cave and these witnesses were taken by the appellants to another place then the natural conduct of the complainant Bramhanand would have been that he would have visited the police station of appropriate jurisdiction to lodge the FIR first and thereafter he would have requested the police to trace the dead body of the deceased. It was not expected from complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) and other villagers to whom they had contacted to trace the dead body of deceased Balkishan @ Laddu in the Beehad which was spread across many square kilometers. Hence, the story that they traced the dead-body of the deceased Balkishan @ Laddu themselves appears to be unnatural and doubtful. The possibility cannot be ruled out that when the dead body of the deceased was noticed and complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) were informed then they cooked up a story of abduction and claimed that they were the eyewitnesses otherwise their story would be totally unnatural and there 10 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. was no reason to show as to why complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) were abducted.
(13) Also the place of incident was within the jurisdiction of police station Surpura but the complainant Bramhanand and witness Swadesh Kumar (PW-5) did not go to the police station Surpura. As per the police regulations, every police station is required to keep a Rojnamcha and an FIR register which should be filled from time to time by mentioning its time and crime number be registered in chronological order. When a report is to be lodged ante- dated or ante-time then it is for the police officer to register a Dehati Nalisi to show that it was registered within time and thereafter it was sent to the concerned police station. Dr. Rakesh Saxena (PW-10) performed the post mortem on the body of the deceased Balkishan @ Laddu on 19.02.2000 then possibility cannot be ruled out that neither the body of the deceased was recovered on 18.02.2000 in early hours nor such Dehati Nalisi Ex.P-5 was registered on 18.02.2000 in early hours. In the circumstances, Dehati Nalisi, Ex.P-5, appears to be a document prepared ante-time and ante-dated. If it is presumed that it was registered on 18.02.2000 at a particular time then still that FIR was lodged with delay and explanation of delay given by the complainant Bramhanand is not acceptable. If he was released on 17.02.2000 then it was for him to immediately visit his brother Ramkumar who was a respectable politician and to get the help of the police whereas the complainant Bramhanand claimed that he along with his companions tried to search for the dead body of the deceased 11 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Balkishan @ Laddu in a huge area of Beehad and he remained successful in tracing out the dead body of the deceased on 18.02.2000. The explanation given by Bramhanand is unnatural and it cannot be presumed that he could have searched the dead body of Balkishan @ Laddu without help of the police. Hence, it is established that the alleged Dehati Nalisi Ex.P-5 was not only ante- time and ante-dated but also lodged with delay and no proper explanation of that delay has been given by the complainant Bramhanand. Hence, in the light of the judgment rendered by the Apex Court in the case of Peddireddy Subbareddy (supra), the prosecution's story comes under the clouds of doubt and the testimony of complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) is also considered doubtful. (14) As discussed above, there was no reason proved by the prosecution as to why the complainant Bramhanand (PW-4) and witness Swadesh Kumar Joshi (PW-5) would have been abducted. Also according to Bramhanand and Swadesh Kumar Joshi they were going along with deceased Balkishan @ Laddu to settle the proposal of marriage at village Paryaya. If they have started from the residence of complainant Bramhanand then there should be a cogent evidence that they had assembled at the house of Bramhanand and thereafter left the village Janora to Paryaya. However, in the cross-examination, neither complainant Bramhanand nor witness Swadesh Kumar Joshi could confirm the person of whose son they wanted to see for the settlement of marriage with the niece of the complainant Bramhanand. When it was not stated whom they wanted to see for settlement of marriage then it was 12 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. not possible for the complainant Bramhanand and witness Swadesh Kumar Joshi along with deceased Balkishan @ Laddu to leave village Janora simultaneously for a particular purpose and therefore, their visit in which they have claimed that they were abducted was imaginary. By omission of such a fact, the prosecution story also appears to be doubtful.
(15) If it is presumed that Bramhanand and Swadesh Kumar Joshi etc had left for village Paryaya to see a boy for settlement of marriage then such a fact should have been in the knowledge of the family of Bramhanand but Ramkumar (PW-7), being brother of complainant Bramhanand, lodged a missing persons report Ex.P-13 on 10.02.2000 at police station phooph that Bramhanand, Swadesh Kumar Joshi etc went missing when they were on the way from village Janora to village Surajpura. The fact of the missing persons report Ex.P-13 was mentioned by Ramkumar after his contact with the family members of complainant Bramhanand, hence, Bramhanand had left for village Surajpura then why was he told a falsehood that Bramhanand left for village Paryaya. If on the way of Surajpura from Janora, there was no Beehad then there was no possibility of the admission as complainant Bramhanand, Swadesh Kumar Joshi etc have stated that they were going to village Paryaya and in the way they were hailed by accused Munnalal and the appellants and thereafter when they reached near them, they were abducted at gunpoint. Contrary to that version, Ramkumar had mentioned in the missing report, Ex.P-13 that Bramhanand etc had left the village Janora by a motorcycle. If the complainant Bramhanand and his 13 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. companions were on a motorcycle then after their abduction what happened to that motorcycle. There is no reason as to why motorcycle was not recovered by the police from a particular place, from where the complainant Bramhanand etc. were abducted. A material contradiction is visible in between the description of abduction as given by Bramhanand and Swadesh Kumar Joshi and the missing persons report lodged by Ramkumar (PW-7) which also creates a doubt on the story of abduction. (16) Witness Ramkumar (PW-7) has accepted in the cross- examination that he had fought an election for Sarpanch of Gram Panchayat at village Janora and his opponent was Suratram. When Ramkumar won the election, Suratram took revenge on his nephew Balkishan @ Laddu. No clear date was given by the witness Ramkumar as to when the result of election was declared. When he was busy with the election and the complainant Bramhanand etc. had left the village Janora for village Paryaya then at that time there was no grievance caused to the absconding accused persons to kill the deceased Balkishan @ Laddu and therefore, there was no possibility of abduction of Bramhanand etc on 03.02.2000. Similarly, Ramkumar (PW-
7) has accepted that Balkishan had shifted to the city Bhind. It is also stated by witness Swadesh Kumar Joshi that Balkishan @ Laddu was residing at Bhind and therefore it was for the complainant Bramhanand to establish as to when the deceased Balkishan came to his house from Bhind. On the other hand, the investigating officer, Parmal Singh Tomar (PW-12) has accepted in para 5 that in his enquiry he found that Balkishan @ Laddu was residing along with his family in a rented house at Ater 14 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Road, Bhind (M.P.) and he examined one Bhikarilal, a relative of Balkishan @ Laddu who informed that on 06.02.2000 he enquired about the deceased Balkishan @ Laddu at his house then his grand-daughter told the witness Bhikarlal that Bramhanand had visited Bhind and deceased Balkishan @ Laddu had gone along with Bramhanand to the local market. Since statement of Bhikarilal did not match with the prosecution story, he was not examined. But, the fact was accepted by investigation officer Shri Parmal Singh Tomar (PW-12) which indicates that deceased Balkishan @ Laddu did not visit Janora to accompany Bramhanand but Bramhand had visited the house of deceased Balkishan at Bhind on 06.02.2000 and therefore, it was informed that Bramhanand took the deceased Balkishan @ Laddu to the market on 06.02.2000. (17) According to Bramhanand in Dehati Nalisi Ex.P-5, he was abducted on 03.02.2000 whereas according to the missing persons report Ex.P-13 Ramkumar (PW-7) had reported that the complainant Bramhanand was missing since 04.02.2000 and further according to the investigating officer Parmal Singh Tomar (PW-12), Bramhanand was present at Bhind in the house of deceased Balkishan @ Laddu on 06.02.2000. Therefore, the story of Bramhanand and Swadesh Kumar Joshi that they were abducted on 03.02.2000 goes away. It appears that a story was cooked up.
(18) According to Bramhanand and Swadesh Kumar Joshi, on 09.02.2000, the absconded accused appeared at the scene of crime and the accused Munnalal handed over the deceased Balkishan @ Laddu to the absconded accused Murarilal etc who assaulted the deceased Balkishan @ 15 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Laddu with lathis (sticks) and killed him. Hence, according to the eyewitnesses Bramhanand and Swadesh Kumar Joshi, the deceased Balkishan @ Laddu was killed on 09.02.2000 whereas Dr. Rakesh Saxena (PW-10) had performed the post mortem on the body of the deceased Balkishan @ Laddu on 19.02.2000 i.e. ten days after his death. Dr. Rakesh Saxena (PW-10) was cross-examined to set the time period of death of the deceased. Though the deceased died during the winter season but it was the end of winter season and after considering the fact of cold climate etc, Dr. Rakesh Saxena (PW-10) had opined that the death of the deceased was caused 4-5 days prior to the date of post-mortem. Hence, on the basis of medical evidence, the evidence of Bramhanand and Swadesh Kumar Joshi cannot be accepted that the deceased Balkishan @ Laddu was killed on 09.02.2000. It appears that the deceased was killed approximately on 14 or 15.02.2000. Hence, in the light of the judgment rendered by the Apex Court in the case of Shiv Kumar (supra), the testimony of the witnesses Bramhanand and Swadesh Kumar Joshi cannot be accepted.
(19) If aforesaid discussion of facts and evidence is considered simultaneously then it would be clear that it was not established by the prosecution that the complainant Bramhanand or his companions were abducted on 03.02.2000. It was not established that the deceased Balkishan @ Laddu had come to the house of Bramhanand on 03.02.2000 and accompanied him. On the contrary, Bramhanand and the deceased Balkishan @ Laddu were seen at Bhind on 06.02.2000. The deceased Balkishan @ Laddu did not die on 09.02.2000 and he had 16 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. actually died much later than that date. Hence, the conclusion would be that neither the complainant Bramhanand nor witness Swadesh Kumar Joshi was abducted nor did they see the incident of murder done by the various persons. It appears that on receiving the intimation that the dead body of deceased Balkishan @ Laddu was found at a particular place, Bramhanand would have cooked up the story and lodged a Dehati Nalisi Ex.P-5 to the then SHO S.S. Parmar (PW-15) otherwise there must be some acceptable reason for abduction of Bramhanand and Swadesh Kumar Joshi. At least some ransom must have been demanded in consequence of the aforesaid abduction. Hence, it is not proved beyond doubt that the appellants abducted Bramhanand, Swadesh Kumar Joshi or the deceased Balkishan @ Laddu for ransom. The trial court has committed an error in convicting the appellants for the offence under Section 364-A of IPC. (20) If these witnesses are deleted from the list of witnesses then no ocular evidence remains against the appellants. No weapon has been recovered from any of the appellants. No other circumstance could be established by the prosecution against various appellants. It is not proved that the appellants were seen with the deceased Balkishan @ Laddu soon before his murder. If for the sake of argument, it is accepted that Bramhanand and Swadesh Kumar Joshi were the actual eyewitnesses then still according to them the accused Munnalal handed over the deceased Balkishan @ Laddu to the absconding accused persons Murarilal etc who had killed the deceased Balkishan @ Laddu by beating him with lathis. Since it was a circumstantial evidence that the absconding accused 17 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. persons contacted Munnalal and he handed over the deceased Balkishan @ Laddu to them then there was no role of the present appellants in the crime of murder of the deceased Balkishan @ Laddu. There is no allegation that any of them assaulted the deceased Balkishan @ Laddu along with accused Munnalal and absconding accused persons. Hence, the appellants could not have been convicted of offence under Section 302 of IPC either directly or with the help of Section 34 or 149 of IPC and when complainant Bramhanand and witness Swadesh Kumar Joshi were not the eyewitnesses the offence of Section 302 of IPC done by the culprits but it was not established that the appellants had committed the aforesaid offence. The trial court has committed an error in convicting the appellants for offence punishable under Section 302 of IPC.
(21) It is pertinent to note that there was no named FIR against appellants No.2 and 3 Subhash and Ramautar and those were claimed to be indentified by Bramhanand and Swadesh Kumar Joshi. An identification memo Ex.P-9 was prepared by Naib Tahsildar Shri M.L. Gupta (PW-13), however, it is apparent that such identification was done after four weeks of the arrest of the appellants No.2 and 3. Appellants No.2 and 3 were arrested on 25.05.2000 whereas test identification parade was arranged on 22.06.2000 and therefore there was every possibility before the complainant Bramhanand and Swadesh Kumar Joshi to view the appellants No.2 and 3 when they were produced before the concerned Magisterial or Trial Court. It is pertinent to note that complainant Bramhanand was so interested in the case that he engaged one advocate 18 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. Shri Rajeev Sharma from his side and therefore the delay in making the identification loses the evidentiary value of identification document. Hence, if the said document is discarded then there is no evidence against appellants No.2 and 3 that they had participated in the crime of murder or abduction.
(22) As discussed above, if no abduction of the complainant Bramhanand took place then certainly there was no possibility that the complainant Bramhanand or Swadesh Kumar Joshi etc were looted by the appellants. Bramhanand and Swadesh Kumar Joshi made an allegation of robbery done by the appellants but it is surprising that a sum of Rs.40 or 60 was found with Bramhanand and Swadesh Kumar Joshi whereas they were going to settle a marriage of niece of complainant Bramhanand and on the other hand it is surprising that the deceased Balkishan @ Laddu had a significant amount of Rs.20,200/- in his pocket when he had no direct relation with the girl whose engagement was to be done. When it is not proved that the complainant Bramhanand etc were abducted the story of robbery cannot be believed. Hence, the allegation of committing dacoity by five persons including the appellants and Munnalal cannot be accepted. The trial court has committed an error in convicting the appellants of offence under Section 395 read with Section 397 of IPC. It is also pertinent to note that when the appellants cannot be convicted of offence under Section 395 of IPC or 364-A of IPC then they cannot be convicted of the offence under the provisions of the Special Act.
(23) On the basis of the aforesaid discussion, it is clear that appellants cannot be convicted of any of the offences 19 Criminal Appeal No.604/2002 Murarilal and others Vs. State of M.P. punishable under Sections 395 read with Section 397, 302, 364-A of IPC or under Section 11/13 of the Special Act or any inferior offence of such nature whereas none of the appellants was charged of offence of the Arms Act. Such charge was framed against the accused Munnalal only. Hence, appeal filed by the appellants appears to be acceptable and consequently it is hereby accepted. The conviction and sentence recorded by the trial court against the appellants of offence under Sections 395 read with Section 397, 364-A, 302 of IPC and under Section 11/13 of the Special Act are hereby set aside. The appellants are acquitted from the aforesaid charges by giving them benefit of doubt.
(24) The appellant No.4 is in jail and therefore the office is directed to arrange for issuance of release warrant in favour of the appellant No.4 without any delay so that he may be released immediately. The appellant No.3 Ramavtar was in jail due to another case, hence jail authority be informed that he is not required in the present matter. The appellant No.2 Subhash was on bail, his presence is no more required, it is directed that his bail bonds shall stand discharged.
(25) A copy of this judgment be sent to the court below along with its record for information and compliance.
(N.K. Gupta) (G.S. Ahluwalia)
Judge Judge
27/10/2016 27/10/2016
pd