Madhya Pradesh High Court
Kerma And Anr. vs State Of Madhya Pradesh on 11 February, 2004
Equivalent citations: 2004(2)MPHT256
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. The appellants by this appeal have challenged the judgment of conviction and order of sentence dated 22-11-2000 passed by Additional Sessions Judge, Karera in Sessions Trial No. 290/99 convicting them under Section 395 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentencing them to suffer R.I. seven years and fine Rs. 2000/-, in default further six months R.I. each.
2. No exhaustive statements of facts are necessary for the disposal of this appeal. Suffice it to say that on 22-3-99 one Bus No. MP 08/9099 which was being driven by driver Gajendra Singh, was coming towards Gwalior. In the Bus Samarpal Singh (P.W. 2) was the conductor, when this bus reached near Nariya at that juncture some miscreants who were hidden in the bushes came out and encircled the bus. These miscreants looted the passengers. In the meantime Dharmendra Yadav (P.W. 7) along with his friend Rajendra Gurjar was coming in a jeep, he was having cash Rs. 50,000/- (Rupees fifty thousand). These miscreants stopped the jeep and Dharmendra Yadav was also looted. Thereafter one Tractor No. MP 08/A-8749 which was being driven by Raghavendra Singh (P.W. 4) came at the spot. In this Tractor complainant Raja Bhaiya, Jayendra Singh, Gopal Singh and Komal Singh were sitting. Complainant Raja Bhaiya (P.W. 5) was having his licensee 12 bore gun. These miscreants also stopped the tractor and two miscreants snatched the gun of complainant Raja Bhaiya. All the miscreants were of dark complexion and one of them was wearing the robe which is being worn by military persons.
3. Complainant Raja Bhaiya alongwith Gajendra Singh, Samarpal Singh and one Sushil Chandra lodged a report at Police Chowki, Amolpatha which comes under the jurisdiction of Police Station, Amola. The report is Ex. P-4. On lodging the report, criminal law was set in motion. The Investigating Officer at the instance of complainant Raja Bhaiya arrived at the spot, prepared the spot map, seized the licence of the gun of Raja Bhaiya. The accused persons were arrested on 21-6-99 and the gun was recovered on 7-7-99 vide Ex. P-19 from the Pator of appellant Nanuram. Similarly one brown pant was seized from accused Kerma vide Ex. P-13 and one shirt was recovered from accused Gulab Singh vide recovery memo (Ex. P-15-A), trouser and shirt were recovered on 7-7-99.
4. The Investigating Officer after completion of the investigation, filed a charge-sheet before the Competent Court who on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.
5. The learned Trial Judge after going through the charge-sheet framed the charges under Section 395, IPC against all the accused persons. Needless to emphasis all the accused persons abjured their guilt. The defence of the accused persons is of maladroit implication.
6. In order to prove the charges the prosecution examined as many as eleven witnesses and placed Exs. P-1 to P-21 the documents on record.
7. The learned Trial Judge after scrutinising the evidence came to hold that except appellants, the prosecution failed to prove its case against other four co-accused persons namely Rammu alias Ramniwas, Chhagan, Jotiya and Sur Singh and eventually they have been acquitted. As the offence under Section 395, IPC against the present appellants was found to be proved as such they were convicted under Section 395, IPC and have been sentenced to suffer the sentences mentioned hereinabove. Hence this appeal.
8. In this appeal Shri R.K. Sharma and Shri Anoop Nigam, learned Counsel for the appellants have argued that the present appellants were unknown to the accused persons and therefore it was incumbent upon the prosecution to have arranged the test identification parade, having failed to do so no offence under Section 395, IPC is made out. According to them if the entire case of the prosecution is taken to be true the case would not fall beyond Section 412, IPC and therefore it has been contended by them that as appellants Kerma and Gulab had suffered a jail sentence of four and half years and Nanu had suffered near about four years, this would be proper punishment for them.
9. Combatting the aforesaid submissions of the learned Counsel for the appellants it has been contended by Smt. Kusum Sharma, learned Counsel appearing for the State that the Trial Court dealt each and every aspect of the matter and after X-raying the evidence came to hold that appellants did commit the offence for which they were charged and they have been rightly convicted and appeal be dismissed.
10. After having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be allowed in part.
11. On going through the evidence of the prosecution witnesses it is gathered that the appellants were not known earlier to them and if that be the position, according to me it was incumbent upon the prosecution to have arranged the test identification parade as this has not been done, the conviction of the appellants can not be sustained under Section 395, IPC. To bolster the submission, Shri R.K. Sharma and Shri Anoop Nigam, learned Counsel for the appellants has placed reliance on the decision of the Apex Court in the case of State (Delhi Admn.) v. V.C. Shukla and Anr., AIR 1980 SC 1382, wherein it has been held by Their Lordships that identification of a person by witnesses for the first time in Court without being tested prior test identification parade is valueness. If the ratio decidendi of the case V.C. Shukla (supra), is tested on the anvil of the present factual scenario it would reveal that here also prosecution failed to arrange any test identification parade though the appellants as well as other co-accused persons were unknown to the prosecution witness. Thus, according to me, the ratio decidendi and the facts of the case of V.C. Shukla, squarely covers the fate of this case.
12. One important fact which can not be marginalised and blinked away is that as many as seven accused persons were tried, the allegation against all of them is similar in nature and that being the position, if other four accused persons on the basis of same evidence have been acquitted, according to me, the same treatment should have been provided to present appellants. In this context it will be profitable to rely the decision of the Apex Court in the case of Ram Lakhan v. State of U.P., AIR 1983 SC 352. However, on the basis of evidence came on record it can not be said that appellants are innocent and no offence is proved against them.
13. There is recovery of a trouser from accused Kerma, the recovery memo is Ex. P-13 and a shirt has been recovered from accused Gulab, the recovery memo of which is Ex. P-15-A. Similarly the licensee gun of complainant Raja Bhaiya has been recovered vide Ex. P-19 from appellant Nanuram. I have considered the recovery memo and the evidence of the witnesses coupled with the evidence of the I.O. and I found the recovery to be a legal and valid. Thus, it is proved that from these appellants above said articles were recovered and according to me they have committed an offence punishable under Section 412, IPC. It shall be condign to rely the decision of the Apex Court in this context in the case of Man Singh and Anr. v. State of M.P., 1993 Cr.LJ 3669, wherein Their Lordships had laid down the law that merely because stolen article were recovered from the accused they can not be held to be dacoits by invoking the presumption unless there is a recent possession. In the case of Man Singh (supra), the recovery was made after the lapse of near about three or four months. In the present case also incident took place on 22-3-1999, the accused persons were arrested on 21-6-99 and the recovery of gun was made on 7-7-99 similarly the trouser and the shirt was also recovered on 7-7-99 and therefore the decision of Man Singh (supra) is fully applicable in the present factual scenario. In the case of Man Singh (supra), Their Lordships held the offence to be proved under Section 412, IPC and accordingly I also hold that the present appellants have committed the said offence.
14. It has been contended by Shri Anoop Nigam, learned Counsel for the appellants Kerma and Gulab that they had suffered jail sentence of four and half years and they are still in jail. It has been contended by Shri R.K. Sharma, learned Counsel for the appellant Nanuram that he had suffered near about four years. This position has not been disputed by the learned Counsel appearing for the State. In this view of the matter, looking to the peculiar facts and circumstances of the case, in my opinion this would be the sufficient punishment for the offence under Section 412, IPC.
15. In the result, the appeals succeeds in part and they are allowed. The conviction of the appellants is altered to Section 412, IPC and they are enlarged for the period they had already undergone. Appellants Kerma and Gulab are in jail, they be set at liberty forth. Nanuram was allowed on bail, his bail bonds arc discharged.