Madhya Pradesh High Court
Ramveer Lodhi & Ors. vs State Of M.P. on 22 January, 2018
1
Cr.A. No.186/2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : SHEEL NAGU J.)
Cr.A. No. 186/2004
Ramveer & Ors.
Vs.
State of M.P.
______________________________________________
For appellant
None for the appellant.
For Respondent
Shri Vivek Bhargav, Public Prosecutor for the respondent/State.
___________________________________________
JUDGMENT
(25.01.2018)
1. The present appeal preferred u/S. 374 Cr.P.C. assails the judgment dated 16/3/04 passed in S.T. No. 7/2001 whereby the appellants have been convicted as follows:-
Name of Section Imprisonment Fine
appellants
Ramveer, 353 of IPC 1 year R.I. Rs. 500/-
Betal Singh, each with
Pyaarelal default
and Rammu stipulation
Ramveer 224 of IPC 1 year R.I. Rs. 500/-
with default
stipulation
Betal Singh, Section 225 1 year R.I. Rs.500/-each
Pyaarelal of IPC with default
and Rammu stipulation
2
Cr.A. No.186/2004
Ramveer, Section 5 years R.I. Rs.1000/-
Betal Singh, 392/34 of each with
Pyaarelal IPC r/w default
and Rammu Section 13 stipulation
of MPDVPK
Act.
2. Learned counsel for the rival parties are heard.
3. Brief facts giving rise to present case are that on 8/11/01, the complainant Head Constable No. 480 Hukum Singh had gone to village Padampur in search of accused Ramveer Singh, Nawab Singh and Pyaarelal accused in criminal case No. 1775/96 pending before JMFC Gwalior and also in search of warantee accused Harisingh and Amar Singh in criminal case No. 842/91 pending before Additional CJM, Gwalior. One of the warantees Ramveer was found on the way and after being arrested was being taken on a motorcycle to the police station. When at about 6:00 P.M. in the evening when the motorcycle reached near the SLP College Morar behind C.P. Colony, the accused appellant Rammu and Pyaarelal came riding on a Rajdoot motorcycle and restrained the complainant and asked him as to where he was taking Ramveer. They were informed that respondent Ramveer arrested pursuant to the warrant of arrest issued against him is being taken to the police station. On hearing this, the said two appellants/accused started arguing with the complainant, when the third accused/appellant Betal came on his tractor bearing No. MP07 H 7822 and stopped the complainant in his way and made the same quarry as made by other two accused/respondents. On coming to know that the fourth accused Ramveer on being arrested is being taken to the police station in execution of arrest warrant, Betal got down from his tractor wielding wooden stick and assaulted the 3 Cr.A. No.186/2004 complainant. The blow was stopped by the constable Rakesh Mishra. Appellant No.4 Rammu snatched the warrant from the hand of the Head Constable Hukum Singh (complainant) and shouted that when there will be no warrant there can be no arrest. On hearing this commotion, a crowd accumulated comprising of several persons including one Chandu Kushwaha. The accused/appellants Rammu, Pyarelal and Betal forcibly released accused/appellant Ramveer from captivity and took him away and fled on motorcycle leaving behind the tractor of Betal. FIR Ex. P/1 was lodged by the complainant Hukum Singh whereafter the formalities of the investigation was completed and the charge- sheet was filed before the court of competent jurisdiction where the appellants/accused adjured guilt and sought trial.
4. In support the prosecution examined as many as eleven witnesses Hukum Singh (PW-1), Prem Singh (PW-2), Chandra Prakash Singh Kushwaha (PW-3), Shailendra Singh Chauhan (PW-
4), Rakesh Mishra (PW-5), Pooran Singh (PW-6), Shughar Singh (wrongly mentioned PW-6), Shajad Khan (PW-7), Om Prakash Bajpai (PW-8), Shriram Sharma (PW-9), Alok Kumar Singh Kushwaha (PW-10) while appellants in their defence produced DW- 1 Dev Singh and DW-2 Ram Prakash Sharma.
5. The learned trial Judge after marshaling the evidence which came on record from both sides returned the finding of guilt and convicted the appellant for the offence punishable u/Ss. 353, 224, 225, 392/34 of IPC and 13 of MPDVPK Act.
6. A bare perusal of the deposition of Head Constable Hukum Singh (complainant) (PW-1) reflects that he has supported the story of prosecution by reiterating the allegations and the prosecution story which could not be shaken by defence in cross-
4 Cr.A. No.186/2004examination except for revealing minor embellishment and contradiction of insignificant probative value.
7. The testimony of Chandu Kushwah (PW-3) who was said to be present on the spot as per the version of the complainant, reveals that he saw 50-60 people having gathered near SLP College infront of K.D. School, but did not see the appellants Rammu, Betal and Pyaarelal in the crowd. This witness has been declared hostile by the prosecution. In the cross-examination, this Chandu Kushwah (PW-3) has totally denied the version of prosecution and has submitted that Keshav, Ramprakash, Devi Singh and Bharosi were present on the spot. This witness further deposed that he did not see any warrant in possession of the Hukum Singh (complainant) and further denies seeing handcuff in possession of Hukum Singh or constable Rakesh Mishra. This witness also states that when the crowd asked the Head Constable to show the warrant of arrest, then Head Constable could not show any document and the crowd (without naming anyone) took away Ramveer by applying force.
8. Another prosecution witness Rakesh Mishra constable (PW-5) who was projected as an eye-witness supported the story of the prosecution and denied certain contrary suggestions made by defence in the cross-examination.
9. Shughar Singh (PW-6) is an independent eye-witness who reveals that he saw two police constables bringing Ramveer on a motorcycle. PW-6 further states that he saw a crowd gathered near SLP College, Morar. He further reveals that the said crowd stopped Ramveer who told the crowd that police constables have arrested him. This PW-6 further states that when the crowd asked the police personnel the reason for apprehending Ramveer, the 5 Cr.A. No.186/2004 crowd was told to mind their own business. Thereafter, PW-6 states that the crowd made Ramveer get down from the motorcycle whereafter Ramveer was left at the spot and the police personnel went away. At this stage, PW-6 was declared hostile. In the cross-examination, he denied all suggestions made by the prosecution of involvement of the appellant. In further cross- examination conducted by the defence counsel, PW-6 explicitly testifies that he did not see the appellant Rammu, Pyaare and Betal in the crowd. PW-6 also stated that he did not see the appellant Betal or anyone else bring tractor at the spot and further reiterated that the two police personnel left appellant Rammu at the spot and went away. This witness also denied having seen anyone indulging in any altercation with the police personnel. PW- 6 further categorically states in his re-cross-examination that he did not see the appellant Rammu snatching the warrant from the police personnel.
10. Shajad Khan (PW-7) who is the Investigating Officer supported the story of prosecution by stating that he has properly conducted the investigation and has denied all suggestions made by the defence of the prosecution story being false.
11. Om Prakash Bajapi (PW-8 ) Execution Writer in the court of IIIrd Civil Judge Class-I Gwalior and Shri Ram Sharma (PW-9) Execution Writer in the court of VIIIth Civil Judge Class-II Gwalior, proved the entry made in the relevant record of the court regarding issuance of the warrant in question.
12. Alok Kumar Kushwaha (PW-10) has proved the outward register of the court of JMFC.
13. Dev Singh (DW-1) and Ram Prakash Sharma (DW-2) were produced by the defence as eye-witness. The testimony of DW-1 6 Cr.A. No.186/2004 and DW-2 is similar to the testimony of Sughar Singh (PW-6) to the effect that both these DWs saw crowd having accumulated near SLP College and saw appellant Ramveer sitting on a motorcycle behind a police constable and the said Ramveer was allowed to get down from the motorcycle after the police personnel could not produce any warrant on being asked to do so by the members of the crowd. These witnesses have stated that at the time when the incident took place appellants Betal, Pyaare and Rammu were not present on the spot and also denied having seen any tractor. These witnesses have also denied having seen any warrant in the hand of police personnel.
14. When the above said ocular evidence is scrutinized minutely, it is evident that the factum of arrest warrant having been issued against the appellant Ramveer is an established fact which the prosecution was able to prove beyond all reasonable doubts by producing ocular and documentary evidence. 14.1 However, as regards the allegation of robbery i.e. using force to indulge in theft of any property which is the warrant herein, this court is of the considered opinion that the evidence available on record desperately falls short of the minimum requirement of proof beyond reasonable doubt. 14.2 Complainant Hukum Singh (PW-1) and Rakesh Mishra (PW-
5) who were present on the spot have stated that the appellants stopped the police personnel while they were taking the appellant No.1 in an apprehended state to the police station and by applying force took away the appellant No. 1 by forcibly releasing him from lawful captivity. These two witnesses have also stated that the warrant in possession of the complainant PW-1 was snatched away.
7 Cr.A. No.186/200415. The prosecution version proved by Hukum Singh (PW-1) does not find any support by independent witness especially Chandra Prakash Kushwaha (PW-3) and Shughar Singh (PW-6) who have either not seen the appellants at the spot or have denied the very presence of appellants. More so, Dev Singh (DW-1) and Ram Prakash Sharma (DW-2) who are independent witnesses and have seen the incident do not implicate the appellants qua the allegation of robbery.
16. Hukum Singh (PW-1) and Rakesh Mishra (PW-5) are police personnel and have supported the story of prosecution. However, their testimony is not supported by any independent witness in regard to the allegation of robbery, it would be unsafe to convict the appellant for having caused robbery in the absence of any incriminating testimony of independent nature. Moreso, a close scrutiny of the testimony of Hukum Singh (PW-1) and Rakesh Mishra (PW-5) who have supported the story of prosecution reflects that there are certain embellishment and contradictions in their testimony when compared with their earlier statement recorded u/S. 161 Cr.P.C.
17. That, Hukum Singh (PW-1) and Rakesh Mishra (PW-5) both are the police personnel and were deeply interested in bringing home the charges and therefore, the possibility of these witnesses falsely implicating qua the allegation of robbery cannot be ruled out especially in the absence of corroborative evidence of independent in nature. Hukum Singh (PW-1) and Shughar Singh (PW-6) can surely be categorized as partisan witness reliance upon whom would be unsafe in regard to the allegation of robbery.
18. In view of above discussion, this court is of the considered opinion that the prosecution was successful in proving the charge 8 Cr.A. No.186/2004 u/Ss. 353, 224 and 225 of IPC and therefore, this court upholds the conviction and sentence in that regard imposed by the learned trial Judge.
19. However, this court in the conspectus of the above discussion is unable to uphold the conviction for the offence of robbery and therefore, directs that the impugned judgment and conviction so far as it relates to Section 392/34 and 13 of MPDVPK Act is setaside.
20. If any of the appellants have not completed the modified sentence as aforesaid, then their bail bonds shall stand cancelled and they be arrested to suffer remaining period of the modified sentence. In case the appellants have already suffered the modified sentence as aforesaid, they be released forthwith.
(Sheel Nagu) Judge 25/1/2018 ojha Digitally signed by YOGE YOGENDRA OJHA DN: c=IN, o=HIGH COURT OF M.P. BENCH GWALIOR, ou=STENO, NDRA postalCode=474011, st=Madhya Pradesh, 2.5.4.20=559b9fc5699c 450ae591f182bb52839 OJHA 0a8686891308b8147f5 8a14e663c2cf97, cn=YOGENDRA OJHA Date: 2018.01.30 18:05:11 -08'00'