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Madhya Pradesh High Court · body

2007 DIGILAW 656 (MP)

Kailash S/o Baluji v. State of M. P.

2007-06-28

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
JUDGMENT S.L. Kochar, J. 1. The appellants have lodged their grievance by filing this appeal against their conviction and sentence passed by learned III Addl. Sessions Judge, Ratlam in ST No. 150/2003 judgment and finding dated 27th July, 2005 whereby appellant Kailash was convicted under Section 395/397 of the Indian Penal Code, sentenced to RI for 10 years with fine of Rs. 500/-; in default whereof to undergo RI for three months, appellant Baluram was convicted under Section 395/397 of the Indian Penal Code, sentenced to undergo RI for ten years and fine of Rs. 500/-, in default of payment of fine to undergo RI for three months and also convicted him under Sections 396 and 148 of the Indian Penal Code in two counts, sentenced to undergo RI for life and fine of Rs. 500/-; in default whereof to undergo RI for three months under Section 396 of the Indian Penal Code and one year RI under Section 148 of the Indian Penal Code in two counts and also convicted appellant Nagulal under Sections 395/397, 396 and 148 of the Indian Penal Code, sentenced to undergo RI for ten years with fine of Rs. 500/-, in default whereof to undergo RI for three months under Section 395/397 of the Indian Penal Code, RI for life with fine of Rs. 500/-, in default of payment of fine to undergo RI for three months under Section 396 of the Indian Penal Code and one year RI under Section 148 of the Indian Penal Code. 2. According to the prosecution case, in the intervening night of 13th and 14th June, 2003 complainant Mainabai (PW. 1), her husband/deceased Ganpat and father-in-law deceased Maniram along with their son and daughter Rameshwar and Durgabai (PW. 12) were sleeping inside the house situated in their agricultural field, village Pant Piploda. Ganpat was sleeping in front of the house. In the night at about 3.00 a.m., five-six persons having lathi, dharia and axe started cutting sandal tree situated in front of their house. Ganpat woke up and tried to obstruct them upon which they started assaulting him. Ganpat raised cry which attracted his father Maniram who too was also assaulted by the miscreants. Complainant Mainabai and her daughter Durgabai (PW. 12) were also beaten by the culprits. The miscreants also taken away two box having cash amount, clothes, utensils, tape recorder etc. Ganpat woke up and tried to obstruct them upon which they started assaulting him. Ganpat raised cry which attracted his father Maniram who too was also assaulted by the miscreants. Complainant Mainabai and her daughter Durgabai (PW. 12) were also beaten by the culprits. The miscreants also taken away two box having cash amount, clothes, utensils, tape recorder etc. Mainabai went to village and informed the incident to Ramchandra (PW. 2) and returned back to the field with a tractor. The injured persons were taken in the tractor to police station, Taal, but Ganpat succumbed to the injuries on the way. According to the witnesses miscreants were all young persons and were wearing pant and shirt. Mainabai (PW. 1) lodged the report (Ex. P. 48) in the police station. Deceased persons were sent for post-mortem examination after completion of inquest proceedings. Their post-mortem reports are Ex. P. 40 and P. 45. Appellants were arrested and on their memorandum statement looted property was seized. The accused persons were also put for identification in test identification parade in jail and they had also identified the seized property in test identification parade. After necessary investigation, seven accused persons were charge-sheeted for commission of offence under Sections 148, 395, 396, 397 as well as under Sections 326/149 and 323/149 of Indian Penal Code. 3. The appellants refuted the charges and they examined in defence Rajendra Singh Raghuvanshi (DW. 1) the then police inspector of Police Station, Taal. The learned trial Court, while acquitting the other four accused persons, convicted the appellants as indicated hereinabove. 4. We have heard the learned counsel for parties and also perused the entire record carefully. 5. We gather from the record that conviction of the appellants is based on the testimony of eye witnesses Mainabai (PW. 1) and Durgabai (PW. 12). The learned trial Court sought corroboration to the testimony of Mainabai from the statement of Govind (PW. 15), her son. The evidence of recovery of looted property, its identification at the instance of the appellants have not been relied upon by the trial Court as discussed in para 60 of the impugned judgment and rightly so because Mainabai (PW. 12). The learned trial Court sought corroboration to the testimony of Mainabai from the statement of Govind (PW. 15), her son. The evidence of recovery of looted property, its identification at the instance of the appellants have not been relied upon by the trial Court as discussed in para 60 of the impugned judgment and rightly so because Mainabai (PW. 1) has specifically stated that the looted property from her house was lying at some distance which was taken to the police station by the police and in the police chowky, Kharva the said articles were shown to her by the police and they asked her whether those articles were of her. 6. The conviction of the appellants is based on the evidence of identification by Mainabai (PW. 1) and Durgabai (PW. 12), daughter of Mainabai aged 11 years. It is true that in the Court, Mainabai identified all the seven accused persons as persons who committed dacoity in her house and also assaulted her husband, father-in-law, to herself and her children, but in para three examination-in-chief she has stated specifically that when she was interrogated by the police, she disclosed that she did not identify the miscreants because they had covered themselves by GODADI (quilt). She also stated that she was covered by the accused persons by the quilt. In cross-examination para five, she admitted specifically that at the time of incident she did not identify anybody and after the incident she reached at Kharva chowky where SHO shown the miscreants and she identified them. She was also taken to Alot Court by the police where accused persons were shown to her by the police and she was asked to identify them. In Alot Court twice she identified the accused persons and third time in Jaora Jail. Further admission of this witness is that at the first time she failed to identify the appellants properly in jail, therefore, after one month she was again taken and there she identified the appellants. She identified the appellants on five occasions or five times. In para six she has also admitted that in Kharva police chowky, police shown her articles and asked to identify. She identified the appellants on five occasions or five times. In para six she has also admitted that in Kharva police chowky, police shown her articles and asked to identify. Apart from all these infirmities this witness has given big jolt to the prosecution case by her admission that she identified the accused persons in the Court because they were standing inside the dock and only because of that she was saying that they were the persons committed crime. Further in para seven she has stated that night of the incident was very dark and her husband and father-in-law were sleeping at 15 paces distance from her and she had not gone anywhere from the place where she was sleeping. In view of all these statements of the star witness complainant Mainabai, her evidence of identification is not worth placing reliance. She has admitted in a positive way twice that at the time of incident she did not identify anybody. There was pitch dark and she was at the distance of 15 paces. In test identification parade she did not identify the four acquitted co-accused persons, but in Court she claimed identification of all the seven accused persons. This is true that the evidence of test identification parade is not a substantive piece of evidence and same can be used for contradictions and corroboration to the witness in Court, but in the instant case, by ignoring the positive admission of witness that she did not identify anybody at the time of incident and she identified the accused persons in the Court because they were standing in the dock, the evidence of dock identification cannot be relied upon. The learned trial Court in its judgment have not properly discussed all these factual and legal aspects of the case and according to us committed grave illegality. 7. The next eye witness is Durga (PW. 12), a child witness. In examination-in-chief, para two, she stated that she was knowing the accused persons, but when question was put to her as to how she was knowing, she replied that she had seen them in "TAAL". We have perused the record. Taal is not the name of her village, house or field. It is the n ame of police station in whose jurisdiction place of incident, the field and house of the complainant Mainabai (PW. 1) and deceased persons was situated in village Panch Piploda. We have perused the record. Taal is not the name of her village, house or field. It is the n ame of police station in whose jurisdiction place of incident, the field and house of the complainant Mainabai (PW. 1) and deceased persons was situated in village Panch Piploda. This witness was declared hostile by the prosecution and in cross-examination she admitted that accused persons were present at the time of incident and also assaulted them. She further admitted that accused persons had also taken away their belongings. In cross-examination by defence the say of this witness is that she was never interrogated by the police, her statement was also not recorded by the police and she identified the persons in the Court because they were standing in the dock. She has also admitted that she had no occasion to see the accused persons and accused persons were not got identified by her in test identification parade by the police or any other person. In para six she has also admitted that night of the incident was pitch dark and because of darkness faces of each other were not identifiable. In view of all these statements of Durgabai, we are of the considered view that her evidence of dock identification of the appellants cannot be relied upon. 8. The learned trial Court sought corroboration to the testimony of Mainabai (PW. 1) from the statement of Govind (PW. 15), her son, but statement of Govind is hit by law of hearsay evidence. According to this witness, on the date of incident, in the morning at 6.00 a.m. his mother Mainabai (PW. 1) reached at the house from well and disclosed about the incident of assaulting his father and grand father by the persons who came to cut the sandal tree. The miscreants also taken away boxes, rupees five thousand cash and other articles, but Mainabai (PW. 1) in her Court, statement has nowhere stated that she disclosed all these facts regarding incident to Govind. 9. Apart from the aforesaid evidence of three witnesses, there is no other evidence in the record and relied by the trial Court. Therefore, we are of the considered view that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellants. Therefore, this appeal is allowed. Conviction and sentence of the appellants are hereby set aside. They are in jail. Therefore, we are of the considered view that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellants. Therefore, this appeal is allowed. Conviction and sentence of the appellants are hereby set aside. They are in jail. The learned trial Court is directed to release them forthwith if not wanted in any other criminal case. Appeal allowed.