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2008 DIGILAW 378 (MP)

SACHIN v. STATE OF M. P.

2008-03-05

S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The appellants have filed this appeal against the impugned judgment passed by learned IInd Additional Sessions Judge, Ratlam in Sessions Trial No. 161/07 dated 31/01/2008 whereby convicted the appellants under Section 398 of the IPC and sentenced them to each, R.I for seven years. ( 2. ) The prosecution case as unfolded before the Trial Court in short is that the complainant Mangalsingh was serving as salesman and had introduction with acquitted co-accused Rakesh in a bear bar. The complainant disclosed Rakesh while consuming bear that he was to go to Gayatri Medical Store situated in Namli for collection of money. On this, Rakesh also expressed his desire to go with him. On 9/7/2007, Rakesh and Mangalsingh reached at Namli by motor cycle of Rakesh. When they were passing through a petrol pump, Mangalsingh was surrounded by two persons who came on motor cycle. Mangalsingh was taken in a ditch and at the point of knife his Nokia mobile, golden ring, titan wrist watch and handkerchief were snatched. At that juncture, two boys also rached over there on a motor cycle and took search of Mangalsingh. Thereafter all the four went away on motor cycle towards Ratlam. Mangalsingh getting doubt over the activity of Rakesh, returned back in a Bus. Report of the incident was lodged at police station Namli by Mangalsingh. During the course of investigation, five accused persons were arrested and on their disclosure statement from possession of appellant Sachin golden ring and from appellant Ravi mobile phone were seized. From other accused persons, handkerchief and titan wrist watch were seized. From the accused persons knife and motor cycle were also seized. The appellants were put for test identification in Test Identification Parade held by Naib Tehsildar, Ku. Nitu Gupta (PW-6), Memo of identification parade is Ex. P/5. The seized articles were identified by Mangalsingh in Identification Parade. The memo is Ex.P/4. In Test Identification Parade, Mangalsingh identified only the present appellants. On completion of investigation, appellants along with three acquitted co-accused persons were charge sheeted for commission of offence under Section 395 r/w 397 of the IPC. ( 3. ) Accused persons refuted the charges. They have not examined any witness in defence. The memo is Ex.P/4. In Test Identification Parade, Mangalsingh identified only the present appellants. On completion of investigation, appellants along with three acquitted co-accused persons were charge sheeted for commission of offence under Section 395 r/w 397 of the IPC. ( 3. ) Accused persons refuted the charges. They have not examined any witness in defence. Learned Trial Court after examining the prosecution witnesses and hearing both the parties while acquitting other three co-accused persons named Rakesh, Bharat and Pawan convicted the appellants as mentioned herein-above. Hence this appeal. ( 4. ) Having heard the learned counsel for the parties and after perusing the entire record carefully, it emerged that the conviction of the appellants is based on evidence of Test Identification Parade vide memo Ex.P/5 and recovery of mobile phone from appellant Ravi and golden ring. Appellant Sachin is said to have been identified in Test Identification Parade held by PW-6. Naib Tehsildar, Ku. Nitu Gupta. The main evidence in the instant, case, is the statement of PW-1 Mangalsingh Pawar who was the victim of the offence and he has not supported the prosecution case. In Court he has not identified the appellants. The learned Trial Court placed reliance on the evidence of Test Identification Parade held in jail by PW-6 Naib Tehsildar, Nitu Gupta. It is well settled legal position that evidence of Test Identification during the course of investigation does not constitute substantive piece of evidence. It can at the most be used for contradiction and corroboration to the Court statement of the concerned witness as per provision under Section 145 and 157 of the Evidence. The substantive evidence is the statement of witnesses given in court on oath and in Court witness PW-1 Mangalsingh has not identified the appellants. He has also not the named the appellants in the Court. In paragraph 13 of the deposition of Mangalsingh, he has specifically denied identification of appellants in Test Identification Parade though he has admitted his signature on identification Memo Ex.P/5, the learned Trial Court committed grave error of law in relying on the evidence of Test Identification Parade as a substantive piece of evidence. [See AIR 1972 SC 283 (Hasib V/s State of Bihar)]. ( 5. ) The second set of evidence is the recovery of property of loot i.e. mobile phone and golden ring. [See AIR 1972 SC 283 (Hasib V/s State of Bihar)]. ( 5. ) The second set of evidence is the recovery of property of loot i.e. mobile phone and golden ring. The complainant PW-1 Mangalsingh has nowhere stated in his statement about snatching of golden ring or other articles except mobile phone. On the contrary, he has stated in pafa-2 of examination-in-chief that his wrist watch was taken by the police and police told him that he will get a wrist watch from the Court, he denied about snatching of wrist watch. In paragraph 12 he has specifically stated that mobile phone article A-l, titan Wrist watch article A-2 and golden ring article A-3 were shown to him in police station before holding of Test Identification Parade in Tehsil Office, Ratlam. Since Mangalsingh has nowhere alleged about snatching of golden ring, its seizure and identification is of no consequence. Apart from this, all the three articles were shown to him prior to holding Test Identification Parade during the course of investigation by the police. Therefore, identification of these articles in Test Identification Parade as well as in Court is of no use. The purpose of holding identification of the person as well as the property of the offence is to ascertain whether the complainant was able to identifying the person mixed amongst so many persons who were not known by name to him and also the property out of mixed property if really he lost his property. In the instant case since all the three articles were shown to him in police station. The Test Identification Parade as well as identification in Court looses its sanctity and evidenciary value. Since the prosecution has failed to establish that the seized articles were the property of dacoity or robbery the evidence of recovery or seizure of these articles from the possession of the appellants would not be of any avail. Prosecution has failed to establish by adducing the cogent and reliable evidence that the particular property was snatched from the complainant and same were seized from the possession of the appellants. ( 6. ) Learned Trial Court has also committed grave error of law in convicting the appellants under Section 398 of the IPC, which reads as under :- 398. Attempt to commit robbery or dacoity when armed with deadly weapon. ( 6. ) Learned Trial Court has also committed grave error of law in convicting the appellants under Section 398 of the IPC, which reads as under :- 398. Attempt to commit robbery or dacoity when armed with deadly weapon. - If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. ( 7. ) Section 398 of the IPC is prescribing punishment for attempt to commit robbery or dacoity armed with deadly weapon. In the instant case, charge was not for attempt, but it was for complete commission of offence punishable under Section 395 r/w Section 397 of the lPC. Section 395 of the IPC is providing punishment for commission of dacoity and Section 397 of the IPC prescribing punishment for use of deadly weapon or causing grievous hurt to any person or attempt to cause death or grievous hurt to any person by deadly weapon. In the instant case, on the basis of the statement of the complainant, it is as clear as day light that offence of robbery was committed by 3-4 unknown persons and his mobile phone was snatched. It is not a case of attempt to commit robbery or dacoity. The learned Trial Court has failed to apply correct section for commission of offence on the basis of the evidence available on record. ( 8. ) In view of the foregoing discussion on tact as also on law, this Court is of the considered view that prosecution has failed to establish its case beyond reasonable doubt against the appellants. Therefore, their appeal is allowed. Conviction and sentence as passed by the Trial Court are hereby set aside. The learned Trial Court is directed to release the appellants forthwith if not wanted in any other criminal case. Office is directed to send a copy of this judgment along with the record immediately to the Trial Court for compliance. Appeal allowed.