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2008 DIGILAW 291 (MP)

GANPAT v. STATE OF M. P.

2008-02-22

S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) By this appeal, preferred by the appellant, he has challenged his conviction under sections 458 and 395/397 of the Indian Penal Code and sentence of R.I. for three years and seven years respectively with direction to run both the substantive sentences concurrently, passed by the learned Addl. Sessions Judge, Agar District Shajapur in Sessions rial No. 43/2006 by judgment dated 23.12.2007. ( 2. ) According to the prosecution case, in the intervening night of 15th and 16th September, 1999 the appellant along with four other unknown persons entered inside the house of the complainant Laxminarayan situated in village Dehri Gujar and committed dacoity. The appellant was identified by the complainant Laxminarayan. The complainant was assaulted by knife and other weapons by the appellant and other miscreants. The complainant lodged the report on the same day i. e. 16.06.99 at 6.00 AM. On the basis of the report, police registered only offence punishable under sections 458 and 380 of the Indian Penal Code. Along with the appellant, other accused persons were arrested. After investigation, charge-sheet was filed before the JMFC, Agar for commission of offence punishable under sections 458 and 350 of the Indian Penal Code. ( 3. ) Learned Magistrate framed the charges under sections 458 and 380 of the Indian Penal Code and trial commenced against the appellant and other four acquitted co-accused persons. Complainant Laxminarayan was examined on 26.04.05 in the Court. On 27.02.06, learned A.P.P. filed an application before the learned Magistrate stating that looking to the contents of the First Information Report and other documents, the offence against the appellant and other four co-accused persons under sections 395, 397 and 458 of the Indian Penal Code, would be made out and offences under sections 395 and 397 of the Indian Penal Code were triable by Magistrate First Class, therefore, the case may be committed to the Court of Session. Learned trial Court allowed the prayer of the prosecution and committed the case to the Court of Session. ( 4. ) Learned Additional Sessions Judge, Agar framed the charges against the appellant and acquitted four accused persons under sections 458, 395 and 397 of the Indian Penal Code. Accused persons denied the charges They have not examined any witness in defence. ( 4. ) Learned Additional Sessions Judge, Agar framed the charges against the appellant and acquitted four accused persons under sections 458, 395 and 397 of the Indian Penal Code. Accused persons denied the charges They have not examined any witness in defence. The trial Court, after examining the prosecution witnesses and hearing both the parties, while acquitting the other four co-accused persons, convicted and sentenced the appellant as indicated herein-above. ( 5. ) Having heard learned counsel for the parties and after perusing the entire record, this Court is of the considered view that the conviction of the appellant is not sustainable. ( 6. ) The complainant PW-2 Laxminarayan was examined as a witness before the Judicial Magistrate First Class, Agar and before that Court he failed to identify the appellant and in place of appellant he identified Dayaram. He was confronted with this statement and he expressed his ignorance about identifying acquitted co-accused Dayaram as Ganpat. Neither he has accepted giving of statement nor did he deny. This shows that he tried to overcome this fatal defect in his statement by saying that he was not remembering what statement he had given before the learned Judicial Magistrate. There is no other eye witness of the incident. PW-3 Ramsingh and PW-5 Gordhansingh deposed that they were informed about the incident by PW-2 Laxminarayan, but Laxminarayan has no-where stated in is statement that he had disclosed the name of one of the miscreants who committed dacoity in his house. Therefore, the statements of Ramsingh (PW-3) and Gordhansingh (PW-5 ) are not admissible being hit by law of hear-say evidence as per provision under section 60 of the Evidence Act. (See: Dinanath Singh V/s State of Bihar ( AIR 1980 SC 1199 ). ( 7. ) Learned trial Court has also placed reliance on seizure of golden chain from the possession of the appellant, but this evidence is not sufficient to bring home the guilt of the appellant, because though the chain was identified by the complainant PW-2 Laxminarayan in the test identification parade held by Tehsildar vide identification memo Ex.P/4, but in Court, neither the chain was produced nor was it identified as property of dacoity by witness Laxminarayan. The evidence of test identification and its memorandum can be used for the purposes of contradiction and corroboration to the testimony of the witness given in Court. The evidence of test identification and its memorandum can be used for the purposes of contradiction and corroboration to the testimony of the witness given in Court. It cannot be used as substantive piece of evidence. The substantive evidence would be of identification of property in the Court which was not produced. Therefore, the learned trial Court has erred in relying on the evidence of identification of golden chain. (See: Hasib v/s The State of Bihar ( AIR 1972 SC 283 (para 5), Santosh Singh V/s Izhar Hussain ( AIR 1973 SC 2190 ) and Caetano Piedade V/s Union Territory of Goa ) ( AIR 1977 SC 135 ). ( 8. ) In view of the aforesaid discussion, conviction of the appellant is not sustainable. Therefore, this appeal is allowed. The conviction and sentence of the appellant passed by the Court below are hereby set aside. Trial. Court is directed to release the appellant forthwith if not required in any other criminal case. Let the record of the trial Court along with a copy of this judgment be transmitted to that Court for immediate compliance. Appeal allowed.