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Madhya Pradesh High Court · body

2008 DIGILAW 509 (MP)

MAHENDRA SINGH v. STATE OF M. P.

2008-04-01

S.L.KOCHAR

body2008
Judgment S.L.KOCHAR, J. ( 1. ) Since all the aforesaid three appeals arise out of one and the same judgment, therefore, they are being decided by this common judgment. ( 2. ) The appellants in Cri.A.No. 810/06 and Cri.A.No;. 1096/06 have preferred these appeals against the judgment dated 21.07.06 passed by the learned IX Addl. Sessions Judge, Inddre in S.T.No. 161/05, thereby convicting them under sections 395 and 397 of the Indian Penal Code and sentencing them each to undergo R.I. for ten years and fine of Rs. 10,000/-, in default of payment of fine to suffer additional R.I. for one year while the appellant Vishal in Cri.A.No. 987/06 preferred this appeal against the aforesaid judgment and order for return of property i.e. Hero Honda Motor Bike and the amount seized from the appellant Vishal. ( 3. ) The prosecution case in nut-shell as putforth before the trial Court is that the complainant Shaitansingh (PW-2) was serving as Head Cashier in TAKNIKI KARMACHARI SAHAKARI SAKH SANSTHA WARE HOUSE ROAD, INDORE. In November, 2003, this society entered into an agreement with the MPEB for running Electricity Bill Collection Counter in Indore Town. According to this contract, this society was collecting the amount of electric bills by running counter on different areas and in the evening after collection of money from all the counters being shifted to the office of the society. On 25.10.04, Ramsamaz Yadav, Director of the society instead of sending M.L. Verma for collecting money who used to go regularly ordered him to sit on the counter and send the complainant PW-2 Shaitansingh for collecting the money. Shaitansingh went in a Maruti Van bearing Registration No. MP/09/7040 along with driver PW-1 Mayaram in the evening at 5.30 PM. After collecting total amount of Rs. 5,32,992/ - along with cheques of Rs. 2,02,559/- he was returning from Manoramaganj via Tilak Nagar to Bakhtawarram Nagar. They were intercepted by two motor cycle riders on which two persons each were sitting. They stopped the van and while saying as to how the driver was driving the van, one miscreant gave fist blow on the head and another on the face of complainant Shaitansingh. Blood from the lips of Shaitansingh started oozing. The other two miscreants also gave 2/3 slaps to the driver Mayaram. They stopped the van and while saying as to how the driver was driving the van, one miscreant gave fist blow on the head and another on the face of complainant Shaitansingh. Blood from the lips of Shaitansingh started oozing. The other two miscreants also gave 2/3 slaps to the driver Mayaram. At this juncture, two persons also reached on motor cycle and forcibly took away the bag made of thick cotton cloth containing cash amount. On this bag by blue ink English letters TKSSSM in capital were written. In the bag, amount of Rs. 5,32, 992/- and the cheques collected from three Zones were kept. The complainant lodged the report Ex.P/2 at the Police Station :Palasiya, Indore and the incident was also informed to the vice president Ramsukh Yadav of the aforesaid society. Police reached on the s;pot and prepared the s;pot map. The complainant/injured was sent for medical examination. ( 4. ) During the course of investigation, on secret information from informant dated 27.12.2004, the acquitted co-accused person Vishal Jain, Deepak, Manoj and Satish were arrested. On the basis of disclosure statements of these accused ;persons cash amount, mobile phone, Hero Honda motor cycle and its documents, one motor cycle bearing registration CD DON/JZ/3051 were seized. On 30.12.2004, on the basis of suspicion police of :Police Station Chhoti Gwal Toli Indore arrested the appellants Mahendra and Sandeep and from their possession cash amount, one motor cycle, deposit receipt in the name of Latabai, Kinetic Honda, one bag of chilly powder. A Yahama motor cycle, and one kaile were seized and these accused persons were transferred after formal arrest to Palasiya Police Station. On disclosure statement of appellant Mahendra, a television set, one sofa set, motor pump and one cotton bag, form of MPEB, counter foils of receipt of bills were seized. The accused persons were put for identification in jail, in which the eye witness Mayaram Yadav (PW-1) did not identify any of the accused whereas PW-2 Shaitansingh identified only the appellants Sandip and Mahendra vide identification memo Ex.P/4. The identification parade was held by PW-25 Naib Tehsildar Shri CM. Khan on 19.03.505. On completion of investigation, six accused persons were charge-sheeted for commission of the offences punishable under sections 395, 397 and 412 of the Indian Penal Code. ( 5. ) Accused persons refuted the charges. Their defence was that of denial. The identification parade was held by PW-25 Naib Tehsildar Shri CM. Khan on 19.03.505. On completion of investigation, six accused persons were charge-sheeted for commission of the offences punishable under sections 395, 397 and 412 of the Indian Penal Code. ( 5. ) Accused persons refuted the charges. Their defence was that of denial. They did not examine any witness in defence. Learned trial Court, after examining the prosecution witnesses, recording of the statement of the accused persons as per provision under section 313 of the Code of Criminal Procedure and hearing both the parties, acquitted accused Vishal, Deepak, Manoj and Satish but convicted and sentenced the appellants Mahendra and Sandeep as mentioned herein-above. The learned trial Court has also passed the order of disposal of property as per provision under section 452 Cr.P.C. returning the seized motor cycle CD Don / JZ/3051 to the appellant Vishal which was already given on his Supurdginama during pendency of the trial and Fixed Deposit receipt account No. 00816 to Lata w/o Bharat Kumayu holding that the motor cycle and FD were not purchased and made from the amount of dacoity. ( 6. ) Having heard learned counsel for the parties and after perusing the entire record carefully, it is spelled out that out of two eye witnesses of the incident, PW-1 Mayaram driver of the van did not identify any of the miscreants. In T.I. Parade memo his signature is appearing at portion marked A to A in Ex.P/1 and also did not identify any body in the Court. The conviction of the appellants is based on solitary statement of the complainant PW-2 Shaitansingh Raghuvanshi who had left the services of MPEB two years prior to his retirement and seizure of articles at the instance of the appellants by PW-30 R.K. Puri, Station House Officer, PW-29 C.K.Yadav ASI and PW-27 ASI L.S. Shriwas. The independent witnesses of memorandum-statement recorded under section 27 of the Indian Evidence Act and seizure of the prpperty in pursuance thereof have turned hostile. It is also clear from the prosecution case that the looted property was the cash amount, cheques and these properties were kept in a bag on which in black ink Capital English letters TK.SSSM were written. The cheques were not seized from any of the accused persons. ( 7. It is also clear from the prosecution case that the looted property was the cash amount, cheques and these properties were kept in a bag on which in black ink Capital English letters TK.SSSM were written. The cheques were not seized from any of the accused persons. ( 7. ) Now the core question for consideration before this Court is that whether the solitary testimony of PW-2 Shaitan Singh is sufficient to place implicit reliance or not. Shaitan singh was not knowing the appellants and seen them for the first time at the place of incident in the night at 7.00 PM,. He did hot mention the personality, description and special features of the appellants in his report Ex./P/ 2, but stated in Court that he identified the appellants because he had seen their faces and height. He was contradicted with his statement recorded by the police as well as the report Ex.P/2 and he failed to explain the omission to this effect in the FIR Ex.P/2 in his statement para 25. He also admitted in para 11 that in the report, he did not mention the description of personality, features, height and age of the miscreants. ( 8. ) At the time of identification also he did not disclose before the Naib Tehsildar PW-25 Shri CM. Khan as to how, on what basis and for what purpose he identified the appellants. The Identification Memo Ex.P/4 is also completely silent on this aspect. In para 14 he admitted that he expressed his inability to identify because of darkness. In para 21, he has admitted that at the time of lodging of the report, he was not knowing the exact amount of cheque and the Police first reached on the s;pot and after returning from the spot at 8.00 PM he was interrogated in the Police Station and the report was written. He has also stated specifically that after preparation of the spot map and spot inspection, the First Information Report was written and exact cheque amount was told to him by the President of the Society. This version is contradicted by the time of the First Information Report i.e. 7.30 PM. He has also stated specifically that after preparation of the spot map and spot inspection, the First Information Report was written and exact cheque amount was told to him by the President of the Society. This version is contradicted by the time of the First Information Report i.e. 7.30 PM. The map Ex.P/3 bears his signature at portion marked A to A as mentioned in his statement para 6, but from the document Ex.P/3, it appears that the Court failed to mark his signature as portion A to A . The time of preparation of map Ex.P/8 is 8.00 PM which is clear from the document. This circumstance shows that immediately after the incident, the First Information Report was not recorded. The First Information was recorded after consultation and discussion with the officials of the society, complainant and police personnel. Shaitan singh has also specifically and voluntarily stated in para 26 that because of darkness he could not see properly and fully the miscreants and in para 27 of his deposition, he deposed that in the month of December, 2004 he received telephonic message from the Police Station that the accused persons were arrested and he was called at the Police Station. He reached there and the police shown him and told that the accused persons had committed the offence. In view of this positive admission of showing of the appellants in tile Police Station, the evidence of Test Identification Parade looses its all sanctity. Learned trial Court has failed to consider this aspect of the matter in its proper perspective and held in para 16 that Shaitan singh has not stated that he had identified the accused persons in jail who were shown to him in the Police Station. ( 9. ) In view of positive admission in para 27 that this witness was called at the Police Station and the accused persons who committed the crime were shown to him, is clearly establishes that the appellants were shown. The Test Identification Pasrade was held on 19.03.05 whereas the appellants were arrested on 21.12.2004 i. e. After a lapse of 2 months and 18 days. No evidence is lead by the prosecution to the effect that after arrested till holding of the Test Identification Parade, the Investigating Agency observed requisite precautions to hide the identity of the appellants. The Test Identification Pasrade was held on 19.03.05 whereas the appellants were arrested on 21.12.2004 i. e. After a lapse of 2 months and 18 days. No evidence is lead by the prosecution to the effect that after arrested till holding of the Test Identification Parade, the Investigating Agency observed requisite precautions to hide the identity of the appellants. The appellants must have been produced after 24 hours of their arrest before the concerned Magistrate. The order-sheet of the learned Committal Court dated 31.12.2004 is perused by this Court in which it is no where mentioned that the appellants Mahendra Singh and Sandeep were produced BAPRDAH (by covering their faces by mask or cloth ) and the learned Magistrate granted three days police remand and the appellants were returned back in the custody of ASI Shri S.K. Yaday (PW-29) whereas when the acquitted co-accused persons, four in number, were arrested and produced before the Committal Court on 28.12.2004, they were produced BAPARDAH so that no body could identify and see them. The witnesses PW-1 Mayaram and PW-2 Shaitan singh failed to identify these accused persons in the Test Identification Parade. This raises a reasonable ;presumption in favour of the appellants that if they were produced BAPARAH, there was every possibility of failure of the witnesses to identify them in the Test Identification Parade. After arrest and while taking them to the Court as well as during the course of police remand, there was ample opportunity available to the witnesses to see them so that they may be identified properly in test identification parade. ( 10. ) If the accused persons were not known to the victim by names as well as by faces, then it is incumbent for the investigating agency to hold test identification parade through independent agency at the earliest point of time after their arrest to ascertain that right person/persons were arrested and investigation was proceeding on correct line. The Supreme Court in the case of Amit Singh Vs. State of Maharashtra [2007 (1) SCC Cr. 528] exhaustively considered this aspect and value of test identification parade relevant U/S. 9 of the Evidence Act after taking into account almost all the earlier judgments operating in this field rendered by the Supreme Court and held in para 13 and 14 as under:- "13. State of Maharashtra [2007 (1) SCC Cr. 528] exhaustively considered this aspect and value of test identification parade relevant U/S. 9 of the Evidence Act after taking into account almost all the earlier judgments operating in this field rendered by the Supreme Court and held in para 13 and 14 as under:- "13. As was observed by this Court in Matru v. State of U.P. Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain.). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short "the Code") and the Evidence Act, 1872 (in short "the Evidence Act"). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 1.4. It is trite to say that the substantive evidence is the evidence of identification in court. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 1.4. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. . As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused Who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whole testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration, (see: Kanta Prashad v. Delhi Admn, Vaikuntam Chandrappa v. State of A.P. Budhsen v. State of U.P. And Rameshwar Singh v. State of J andK." (Emphasis supplied) ( 11. In appropriate cases it may accept the evidence of identification even without insisting on corroboration, (see: Kanta Prashad v. Delhi Admn, Vaikuntam Chandrappa v. State of A.P. Budhsen v. State of U.P. And Rameshwar Singh v. State of J andK." (Emphasis supplied) ( 11. ) Having regard to the aforesaid dicta of the Supreme Court, in the facts and circumstances of the present case, evidence of solitary witness PW.2 Shaitan Singh cannot be relied upon for fixing the identity of the appellants especially when the delay in holding test identification parade has not been explained by the prosecution by giving cogent and reliable reasons. ( 12. ) The next set of evidence relied upon by the trial Court against the appellants is the recovery of articles, but in the considered opinion of this Court, recovery of articles from the possession or houses or at the instance of the appellants would not be sufficient to bring home their guilt, because the looted property was cash amount and the same were not bearing any specific mark of identification. Therefore, the question of holding test identification parade would not arise and the statements of the accused persons before the police witnesses namely PW.27 L.S. Shrivas, PW.29 ASI SK Yadav and PW.30 SHO R.K. Puri that the seized motor cycles, mooile phones, furniture etc. were purchased by them by looted cash amount from possession of the complainant, would not be admissible in evidence, being hit by the provisions of Sec.25 of the Indian Evidence Act that "any confession made to a police officer shall be proved as against a person accused of any offence". ( 13. ) The prosecution has failed to prove by adducing cogent and reliable evidence that the seized property (Articles) were purchase by the looted cash amount from the possession of the complainant. So far as seizure of bag from appellant Mahendra Singh is concerned, in which papers of proforma / forms of MPEB and counter slips of cash receipts were also found, is not believable. The accused would not keep for about more than four months these articles with him which could be used as a piece of evidence against him. ( 14. The accused would not keep for about more than four months these articles with him which could be used as a piece of evidence against him. ( 14. ) In Criminal Appeal No.987/2006 learned counsel for the appellants has challenged the impugned judgment regarding disposal of Hero Honda Passion Motor Cycle, Engine No.98931 and Chassis No.33483 by auction and the amount of the same directed to be given to the complainant Shaitan Singh along with cash amount of Rs. 35,000/-. It is crystal clear that the appellant Vishal has not accepted seizure of Hero Honda Passion Motor Cycle and cash amount from his possession and house. In accused statement recorded U/S.313 of the Cr.P.C. he has not accepted the seizure of these articles at his instance and he has also not claimed these properties to be returned to him before the trial Court. The appellant has not led any evidence to establish his entitlement to have possession of these Articles. He has not filed any documents of Registration and Insurance in regard to Passion Hero Honda Motor Cycle. One invoice was seized by the police but in the said invoice only name of Vishal Jain is mentioned but his fathers name and address is not mentioned. For return of the property the appellant has to claim the property and also to establish that he is the person entitled to have possession thereof, which is the main ingredient of Sec.452 of the Cr.P.C for disposal of property of the case at the time of conclusion of trial. When and accused is given benefit of doubt and acquitted, it cannot be said that he was necessarily in lawful possession of the property which was the subject matter of the case. The appellant has not led any evidence to establish his lawful possession and entitlement by claiming and adducing evidence to this effect. On the contrary, he has denied the seizure of Passion Hero Honda Motor cycle and cash amount from his possession. ( 15. The appellant has not led any evidence to establish his lawful possession and entitlement by claiming and adducing evidence to this effect. On the contrary, he has denied the seizure of Passion Hero Honda Motor cycle and cash amount from his possession. ( 15. ) In the opinion of this Court, on due consideration, that the learned trial Court ought to have directed return of complete cash amount of this case to the TAKNIKI KARMACHARI SAHAKARI SAKH SANSTHA MARYADIT, Ware House Road, Indore through its President or Secretary or Managing Director because the cash amount was of this Society and not of the complainant ShaitanSingh who was merely an employee of the Society. This Court in exercise of powers U/S.386(3) read with Sec.397/401 of the Cr.P.C and suo-motu powers of revision amended the impugned judgment in place of returning the property to the complainant Shaitan Singh orders to return the same to the Society. ( 16. ) In the wake of foregoing discussion, this Court is of the firm view that the prosecution has failed to prove its case beyond all reasonable doubt against the appellants. Therefore, Cr.Appeals No.810/2006 and Cr.Appeal No.1096/2006 deserve to be and -are hereby allowed. The appellants in these appeals are in jail. The learned trial Court is directed to release them forthwith if not required in any other criminal case. Cr.Appeal No.987/2006 is liable to be dismissed and is hereby dismissed. ( 17. ) Let a copy of this judgment be kept in the records of CrAppeal Nos. 987/96 and 1096/06 each and the original judgment be retained in the record of Cri. Appeal No. 810/2006. A copy of the judgment be also sent to the trial Court along with its record for immediate compliance. Appeal allowed.