Sanju And Anr. vs The State Of Madhya Pradesh on 27 July, 2018

[Cites 7, Cited by 2]

Madhya Pradesh High Court

Sanju And Anr. vs The State Of Madhya Pradesh on 27 July, 2018

1. Challenge in this appeal filed by the appellants under Section 374 of the Code of Criminal Procedure is to the judgment dated 28.6.2010 passed by the Additional Sessions Judge, Sonkatch, District-Dewas in S.T. No.59/2010, whereby each of the appellant has been convicted for offence punishable under Section 394 of the I.P.C. and sentenced to undergo 10 years R.I. with fine of Rs.10,000/- and not on depositing the fine amount each of the appellants is directed to suffer additional one year R.I.

2. Undisputedly both the appellants were arrested by Police during investigation.

3. Prosecution case in brief is that, on 29.3.2009 at about 10.45 p.m. when complainant Yashwant Namdev (P.W.2) and his son Abhay (P.W.3) were going towards Dewas from Sonkatch by a Hero Honda Deluxe motorcycle bearing registration No. M.P. 09- M.C.5543 driven by complainant,then in the way ahead of village- Arniya two persons met them, each was having a wooden stick in his hand and both the miscreants intercepted the motorcycle driven by complainant Yashwant Namdev and on his stopping of motorcycle, both the miscreants started beating of complainant Yashwant and his son by stick, due to which they received injuries and the miscreants told them that after delivering them the motorcycle, they should go towards Sonkatch. When complainant Yashwant and his son Abhay started proceeding towards Sonkatch on their feet then both the miscreants fled away from the spot with the motorcycle. Thereafter complainant Yashwant and his son Abhay telephonically intimated their relatives and after reaching to the Police Station complainant Yashwant (P.W. 2) lodged FIR at Police-Station Bhourasa at 23.45 hours against two unknown accused persons. The FIR was registered by the Head Constable Hukum Singh (P.W.5).

4. After registration of the crime, complainant Yashwant (P.W.2) and his son Abhay (P.W.3) were sent for their medical examination from the Police Station to District Hospital, Dewas, where Dr.H.S.Rana (P.W. 4) on 30.3.2009 medically examined complainant Yashwant and his son Abhay and recorded their MLC Ex.P/5 and Ex. P/6 respectively. A.S.I., Shankarrao (P.W.6) on 30.3.2009 under investigation prepared spot map (Ex. P/7) at the instance of the complainant.

5. Station House Officer Police Station Bhourasa J.K. Sharma (P.W.7) during the investigation on 19.11.2009 arrested the present appellants Sanju and Lakhan vide arrest memos Ex.P/9 and P/8 respectively. Thereafter on the next day i.e. 20.11.2009 at 9=20 hours on disclosure statement of present appellant No.1 Sanju, J.K. Sharma in presence of panch witnesses recorded his memorandum (Ex.P/1) under Section 27 of the Evidence Act and thereafter on the same day at 9=30 hours on disclosure statement of the present appellant No.2 Lakhan separately recorded memorandum (Ex.P/2) under Section 27 of the Evidence Act and on same day at 12=40 hours from the house of the appellant Sanju situated at village-Bhalaikhurd at the instance of Sanju from the corner of his house seized a Hero Honda Deluxe motorcycle bearing registration number plate M.P. 09-M.C.5543 and prepared seizure memo (Ex.P/3). After completing formalities of the investigation, charge sheet was filed in the court of A.C.J.M. Sonkatch, who committed the arisen criminal case to the Court of Sessions Judge, Dewas, who transferred the relating Sessions trial to the above mentioned trial Court.

6. Each appellant abjured the above mentioned charge. Before the trial Court, seven prosecution witnesses were examined. It was the defence of the present appellants before the trial Court that they have been falsely implicated. No defence witness was examined for them. The trial Court vide impugned judgment placing reliance on the evidence of prosecution witnesses convicted and sentenced each appellant as aforesaid. Hence, this appeal.

7. Learned Senior counsel Shri C.L. Yadav on behalf of the appellants has vehemently argued that the appellants were not named in the FIR and during the investigation, no test identification parade was conducted by the prosecution in relation to their identification by complainant Yashwant (P.W.2) and his son Abhay (P.W.3) and the allegedly seized motorcycle was not produced and identified before the trial Court during recording of the evidence before it. It is also argued that the trial Court erred in placing reliance of sole testimony of Investigation Officer J.K. Sharma (P.W.7) regarding seizure of motorcycle on disclosure statement of appellant No.1 Sanju, whereas the produced prosecution witness Kalu (P.W.1) of relating memorandum and seizure memo, turned hostile and not supported the prosecution case and the other common panch witness Laljiram, of relating memorandum and seizure memo was not examined before the trial Court.

8. Learned Senior counsel for the appellants placing reliance on the case of Sukhvinder Singh and others vs. State of Punjab : reported in (1994) 5 SCC 152 has contended that, according to the prosecution case, on 20.11.2009 at 9.20 a.m. memorandum of appellant No.1 Sanju was prepared and on the same day at 9.30 p.m., another memorandum (Ex.P/2) was prepared on alleged disclosure statement of appellant No.2 Lakhan and as the same fact was allegedly disclosed by each appellant separately, the fact that only disclosure statements made first in point of time alone was admissible in evidence. Therefore, the subsequent disclosure of the same fact by appellant No.2 Lakhan was totally irrelevant and inadmissible in evidence and appellant No.1 Sanju's disclosure statement implicating himself and appellant No.2 Lakhan in the crime was not admissible in evidence in light of the above mentioned citation, therefore, alternatively, it is argued that the conviction as recorded by the trial Court of appellant No.2 Lakhan is totally unsustainable.

9. Per contra, learned Public Prosecutor Shri Aditya Garg contended that victim complainant Yashwant and his son Abhay were resident of Indore city situated far away from the place of occurrence and they deposed in their evidence that both the miscreants have covered their faces by cloth at the time of the incident, therefore, there was no necessity of test identification parade during the investigation by the victims and in light of so many referred citations, the trial Court rightly placing reliance on the evidence of Investigating Officer found proved the seizure of relating motorcycle bearing the same registration number mentioned in the FIR on disclosure statements of appellants, which connect the appellants with the crime, as no explanation was offered by any appellant in his examination under Section 313 of the Cr.P.C. conducted by the trial Court regarding possession of Sanju over motorcycle or about knowledge of robbed motorcycle by the appellants. Therefore, it has been contended that the conviction of both the appellants is based on proper and legal - appreciation of evidence and the dismissal of the criminal appeal is prayed.

10. According to the prosecution's case, complainant Yashwant (P.W.2) and his son Abhay (P.W.3) are the only eye-witnesses to the incident. Both these witnesses deposed that on 29.3.2009 in the night at about 10.45 hours when they were going towards Dewas from Sonkatch by motorcycle driven by complainant Yeshwant Namdev, in the way ahead of village- Arniya two persons, each was having wooden stick in their hand, stopped their motorcycle and thereafter they gave beating to them and asked them to hand over the motorcycle to them and for proceeding towards Dewas on foot. Complainant Yashwant Namdev deposed that the Hero Honda Deluxe motorcycle bearing registration No.M.P. 09 M.C.5543 was of the ownership of Pankaj Chaturvedi of same company, where he was serving. Both the above mentioned father and son deposed that when they started walking towards Sonkatch on their feet, the miscreants fled away from the spot after taking their motorcycle. Complainant Yashwant deposed that after the incident, by his mobile phone he intimated the police at 100 number and his younger brother residing at Sonkatch, as they were not acquainted with the place of the incident and within a few period his brother came on the spot, with whom they reached to police station Bhourasa, where complainant Yashwant Namdev (P.W.2) lodged FIR (Ex.P/4), which is also proved by scriber Head Constable Hukum Singh Solanki (P.W.5). Hukum Singh Solanki (P.W.5) deposed that after recording of the FIR, he sent complainant Yashwant (P.W.2) and his son Abhay (P.W.3) for medical examination to District Hospital,Dewas by applications Ex.P/5 and Ex.P/6 respectively.

11. It is clear from the evidence of Dr. H.S. Rana and his M.L.C. (Ex.P/4) that on 30.3.2009 at District Hospital, Dewas on medical examination of complainant Yashwant Namdev, he found in total two external injuries on the person of complainant appearing to be caused by hard and blunt object and of simple nature, who were appearing to be caused within six hours from his examination. It is also clear from the evidence of Dr. H.S. Rana (P.W.4) and his M.L.C. (Ex. P/6) that on the same day on medical examination of Abhay (P.W.3) he found in total three simple injuries on left side of chest, left arm and left forearm of simple nature, appearing to be caused by hard and bunt object within six hours from his examination. Therefore, it is clear that the medical evidence available on record also corroborates the evidence given by complainant Yashwant Namdev (P.W.2) and his son Abhay (P.W.3) that at the time of incident prior to robbery of motorcycle driven by the complainant by the two unknown miscreants, voluntarily injuries were caused to both of them.

12. Much emphasis has been given by the learned Senior counsel for the appellants on the fact deposed in para 5 of the cross-examination of complainant Yashwant Namdev (P.W.2) that he is not sure that the present accused wearing yellow shirt was throwing stones at the time of the incident or not? And he was not sure that the another accused present in the Court at the time of recording of his evidence caused injuries to him.

13. Similarly, much emphasis has been given by the learned Senior counsel for appellants on the evidence given by complainant Yashwant Namdev (P.W.2) and his son Abhay (P.W.3) that he could not disclose the height and appearance of the miscreants, who committed the incident, but it is clear from the total perusal of the evidence of complainant Yashwant Namdev (P.W. 2) and his son Abhay (P.W.3) that each of them deposed in first sentence of their deposition that he did not know the present accused persons in the court, at the time of recording of their evidence. It is clear from their deposition that the complainant Yashwant Namdev (P.W. 2) and his son Abhay (P.W.3) were the resident of Indore city, whereas the appellants are the resident of village- Bhalai Khurd situated in the area of police station Bhourasa of District-Dewas. The incident occurred in the night at about 10.45 p.m. and in the FIR also, the identification marks (huliya) of miscreants were not disclosed by the complainant. Therefore, in view of the total facts and circumstances of the case, the un-certainity regarding identification of both the appellants at the time of recording of evidence of the complainant Yashwant Namdev (P.W.2) and his son Abhay (P.W.3) before the Court appears to be totally insignificant.

14. It is true that the incident occurred on 29.3.2009, whereas both the appellants were arrested on 19.11.2009 i.e. about more than seven months after the incident. Regarding disclosure statement of each appellant, evidence of Investigating Officer J.K. Sharma (P.W.7) and panch witness Kalu (P.W.1) is available on record, and it appears from the record of the trial Court that, on 22.4.2010, when Kalu (P.W.1) was examined before trial Court, on the same day present witness Laljiram was given up by the A.G.P., without examining him, which indicates that Laljiram was also hostile witness like Kalu (P.W.1), otherwise he would have been definitely examined by prosecution. It is true that common panch witness Kalu (P.W.1) to both the memorandums (Ex.P/1 & P/2) and seizure memo (Ex.P/3). Kalu (P.W.1) deposed that no proceedings were conducted in his presence by the police, though he admitted his signature on both of the aforesaid mentioned memorandums Ex.P/1, Ex.P/2 and seizure memo (Ex.P/3). Kalu was declared hostile by the prosecution and questions of nature of the cross-examination were asked to him by the Additional Public Prosecutor, but nothing favourable to the prosecution could be extracted. It would be significant to mention here that both the panch witnesses Kalu @ Kaluram and Laljiram were resident of town Bhourasa, whereas complainant Yashwant Namdev (P.W.2) and his son Abhay (P.W.3) are the resident of Indore. Turning of some prosecution witnesses hostile in trial of criminal cases is not an abnormal phenomena and even in some case, injured prosecution witness and victims of the crime turned hostile and the actual reasons of their turning hostile could not be extracted in their evidence even after declaring them hostile in their cross-examination is conducted by the prosecutor.

15. Investigating Officer J.K. Sharma (P.W.7) testified that on 19.11.2009 he arrested appellants Lakhan and Sanju in presences of the two panch witnesses vide arrest memos Ex. P/8 and P/9 respectively and on the same day in presence of the same panch witnesses, he interrogated firstly appellant No.1 Sanju, who disclosed the fact that a Hero Honda CD Deluxe motorcycle is kept by him after concealing it in his house and he would disclose it and thereafter, in presence of the same panch witnesses the present appellant Lakhan disclosed the fact that the relating motorcycle has been given by him to Sanju Gurjar. Investigating Officer also deposed that in accordance with disclosure statement of appellant No.1 Sanju, in presence of the same panch witnesses, he seized a Hero Honda CD Deluxe motorcycle bearing registration No. M.P. 09-M.C.5543 from the house of appellant No.1 Sanju. According to the seizure memo, the appellants were arrested on 19.11.2009, whereas their memorandums were prepared on 20.11.2009.

16. The contention of learned counsel of appellants that the statement of Investigating Officer should not be relied in view of the fact that independent witness has turned hostile,could not be accepted, as legal position has been clarified by Apex Court in the case of P.P. Fathima vs. State of Kerala reported in {2004 SCC (Cri.) 1} in para No.7 of its judgment in following words:-

"7. The learned counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less- acceptable, if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made."

17. Nothing is suggested to the above mentioned Investigating Officer in his cross-examination by the defence counsel regarding his enmity with the present appellants and a big and heavy article like a motorcycle bearing the same registration number, which was robbed about seven months ago from the recovery, is not such a thing, which could be planted by the Investigating Officer or could be produced from his pocket. Therefore, it is clear that though examined panch witness Kalu (P.W.1) has not supported the prosecution's case and evidence of the Investigating Officer regarding recovery of robbed motorcycle on appellants' disclosure, but the evidence of above mentioned Investigating Officer regarding seizure of the robbed motorcycle on the basis of disclosure statement firstly given by the appellant No.1 Sanju appears to be totally trustworthy and reliable. I am of the considered view that the trial Court did not erred in placing reliance on this piece of circumstantial evidence.

18. It is true that there is some time gap between the incident and recovery, but is clear that the victims, who were resident of Indore city, whereas the incident occurred under the area of police station Bhourasa, District-Dewas. Under the provision of Section 114 of the Indian Evidence Act presumption should be drawn that the robbed motorcycle, which was found in the possession of accused, is robbed by him. It was the duty of the appellant No.1 Sanju to provide explanation regarding his possession of the robbed motorcycle, but it is clear from the perusal of his examination conducted by the trial Court under Section 313 of the Cr.P.C. that he has not offered any explanation regarding possession of the robbed motorcycle kept at his house situated at village- Bhalai Khurd. The only defence raised by the appellants that they have been falsely implicated and in absence of any explanation from appellant No.1 Sanju regarding his possession over robbed motorcycle, the inevitable inference drawn by the trial Court could not be termed as erroneous.

19. Much emphasis has been given by the learned Senior counsel for the appellants on the fact that the relating motorcycle was not produced or identified by any prosecution witness at the time of recording of evidence before the trial Court, but it is clear from the record of the trial Court and relating facts have been clearly mentioned by the trial Court in para 20 of its impugned judgment that vide an order dated 26.3.2010 the interim custody of the seized motorcycle was granted to the applicant Pankaj Chaturvedi by the competent Court on his application filed under Sections 457 of the Cr.P.C. as in light of the produced documents by Pankaj Chaturvedi, he was the registered owner of the relating motorcycle and as any appellant did not make any claim over the seized motorcycle and the registration number of the robbed motorcycle and its chassis number and engine number clearly mentioned in the FIR matched with the relating numbers indicated in the seizure memo (Ex.P/3).

20. In above mentioned peculiar facts and circumstances of the case, it could not be inferred that the absence of identification of the motorcycle before the trial Court by any witness at the time of recording of the evidence has made prosecution case doubtful.

21. It is held in the case of Sukhvinder Singh and others (supra) that under Section 27 of the Evidence Act, rediscovery of a fact already disclosed and capable of discovery is not contemplated and where similar disclosure statement made by more than one accused leading to one and the same discovery, then disclosure statement made first in time alone would be admissible in evidence. In para No.16 of the judgment of above mentioned case, it has been observed in following words:-

"16. Therefore, once the fact has been discovered, Section 27 of the Evidence Act cannot again be made use of to 'rediscocver' the disclosed fact. It would be a total misuse - even abuse - of the provisions of the Section 27 of the Evidence Act."

22. Therefore, in light of the above mentioned citation of the Apex Court, it is clear that the learned trial Court erred in convicting and sentencing the appellant No.2 Lakhan for the charged offence. Therefore, this appeal appears to be partly acceptable in reference to conviction of appellant No.2 Lakhan s/o Narayan Singh, whereas the conviction and sentence recorded by the trial Court against the appellant No.1 Sanju appears to be totally based on proper and legal analysis and appreciation of evidence available on record.

23. Consequently, this appeal on behalf of appellant No.1 Sanju s/o Antar Singh is dismissed and appellant Sanju's conviction and sentence as recorded by the trial Court for charged offence punishable under Section 394 of the Cr.P.C. is affirmed. But, this appeal on behalf of appellant No.2 Lakhan s/o Narayan Singh is allowed and the conviction and sentence of appellant No.2 Lakhan as recorded by the trial Court are set aside and he is acquitted from the charged offence punishable under Section 394 of the I.P.C.

24. It appears from the orders passed by this Court on 25.2.2011 and 9.5.2016, that the appellant No.1 Sanju was released on bail during the pendency of this appeal after suspending his jail sentence. Therefore, appellant No.1 Sanju is directed to surrender before the trial Court without any delay so that he may send to the jail for execution of his remaining sentence. It appears from the orders passed by this Court on 25.2.2011 and 4.7.2012 that the appellant No.2 Lakhan's jail sentence was also suspended by this Court during the pendency of this appeal, but during the pendency of this appeal, due to his non-appearance on 4.7.2012 appellant No.2 Lakhan was sent back to jail for serving out remaining part of his jail sentence. It also appears from the order sheet 4.7.2012 that appellant No.2 Lakhan is serving jail sentence of any another criminal case or he is detained in relation to any other crime. Therefore, through the concerned Jail Superintendent, appellant No.2 Lakhan be intimated with the result of this appeal and appellant No.2 Lakhan be immediately released relating to this criminal appeal, if not required in any other case. The impugned judgment passed by the trial Court regarding seized motorcycle is affirmed.

25. A copy of this judgment with record be sent to the concerned trial Court for compliance and information.

(Ashok Kumar Joshi) Judge moni Digitally signed by Moni Raju Date: 2018.07.30 11:04:59 +05'30'

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