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Madhya Pradesh High Court · body

2009 DIGILAW 405 (MP)

State of M. P. v. Inder Singh

2009-03-31

B.M.GUPTA, S.S.DWIVEDI

body2009
JUDGMENT Dwivedi, J. -- 1. The appellant/State has preferred this criminal appeal under section 378 of CrPC feeling aggrieved by the impugned judgment of acquittal dated 30.10.99 passed by Additional Sessions Judge, Chachoda, district Guna in ST No. 242/98, whereby acquitted the respondents-accused from the charges under sections 399, 402 and 307 of IPC and the respondents In dersingh and Rajesh also under section 25 (1-a) and 27 of the Arms Act. 2. Briefly stated facts of the case are that on 6.6.1998 police Sub-Inspector S.K. Paliwal posted at police station Chachoda received secret information that some persons are assembled in the garden situated at village Kotakheri and making preparation for commission of dacoity in the house of one Phool Singh. On this information, concerning police Inspector informed the S.P. Guna for deputation of other police officers from the nearby police station. On this in formation, S.P. Guna directed the police officers posted at police stations Dharnavada and Raghogarh to immediately reach to police station Chachoda for the alleged raid for arrest of the accused persons. Thereafter, police force was divided into three parts headed by concerning police Sub Inspector and reached near the garden concerned and heard the voice of respondents-accused. They were planning for dacoity in the house of Phool Singh. The Police officer asked the accused persons to surrender before the police, at that time, it is alleged, that one of the accused had fired by his gun on the police party and thereafter five persons had been arrested by the police from the spot. Two persons ran away taking the benefit of darkness. From the possession of accused under a 315 bore country made pistol and two live cartridges were seized. Similarly, from the possession of accused Rajesh a gun was seized, from the possession of accused Kamaria and Mano, one farsa from each was seized and from the possession of accused Hemraj, one lathi was seized. Thereafter, police party returned back to the police station registered the first information report Ex. P/9, arrested the accused persons and after due investigation, charge sheet was filed. 3. Respondents/accused abjured the guilt and their defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence on record by impugned judgment acquitted the respondents/ accused from the aforesaid charges, feeling aggrieved by which, the appellant/ State has preferred this appeal. 4. 3. Respondents/accused abjured the guilt and their defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence on record by impugned judgment acquitted the respondents/ accused from the aforesaid charges, feeling aggrieved by which, the appellant/ State has preferred this appeal. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. Learned counsel for the appellant/State has submitted that prosecution has proved the fact all the five accused persons have been arrested from the spot having different arms in their possession. They were planning for commission of dacoity in the village concerned and the trial Court has wrongly disbe.1ieved the statements of concerning police officers and wrongly acquitted the respondents/ accused from the aforesaid charges, hence prayed for setting-aside of the impugned judgment of acquittal passed by the trial Court and prayed for conviction and reasonable sentence to the respondents/accused for the aforesaid offence. 6. In reply, learned counsels appearing on behalf of the respondents/accused supported the impugned judgment of acquittal and submit that independent witnesses Kallu (PW-2) and Omprakash (PW 5) have not stated that accused persons had been arrested from the garden of village Kotakheri. Witness Kallu Gir stated that police party took him to village Gehunkheri from where some persons were arrested by the police and certain papers were got signed from him by the police at the police station itself and not on the spot. Similar version of the police officer appears to be doubtful that they heard voice of the accused persons with regard to planning of dacoity in the house of Phool Singh; whereas the secreat information had been received in the police station at 10 pm and the poli1ce reached on the spot at 0.30 am it does not appear to be probable that continuously since last two and half hours the accused persons were repeatedly talking about the alleged commission of dacoity with regard to the preparation concerned. Therefore, the statement of aforesaid witnesses are also not found to be reliable by the trial Court and this finding does not appear to be perverse or illegal, therefore, prayed for dismissal of the appeal. 7. Therefore, the statement of aforesaid witnesses are also not found to be reliable by the trial Court and this finding does not appear to be perverse or illegal, therefore, prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the respondents/accused, the prosecution has solely rest upon the police officers namely S.K. Paliwal (PW 3) Sub inspector, Radheshyam Bhargava (PW 4) Head Constable, Radheshyam Tiwari (PW 6) Sub Inspector and Siddnath Singh (PW 8) another Sub-Inspector and all those police officers stated that after receiving of the information they reached on the spot and got the accused persons who were assembled in a garden. But independent witnesses namely Kallu Gir (PW 2) and Omprakash (PW 5) have not supported the aforesaid prosecution story that at the time of arrest, the accused persons were talking or planning for commission of dacoity in the house belonging to one Phool Singh at village Kotakheri. Both these independent witnesses have also stated that all the panchnamas were prepared in the police station and police' got their signatures on these papers in the police station itself. It is true that both these witnesses have been declared hostile by the prosecution but only on the basis of their statements as they have been declared hostile their whole statement cannot be disbelieved and in such circumstances, independent witness had not supported the statement of police officers with regard to the preparation of dacoity by the accused persons. No independent witness of the locality has also been produced by the prosecution to prove the prosecution version with regard to arrest of the accused persons from the concerning garden. 8. On the similar fact, the Hon'ble Apex Court in the case of State of U.P. v. Punni (2008 Cri. LJ 1028) while dealing with the case of acquittal under sections 399,402 of the IPC held here as under:- "At the risk of repetition, we may also reiterate that the High Court, after consideration of all the evidence and materials on record had come to a conclusion of fact that the prosecution story as made out to convict the accused/respondents under sections 399 and 402 of the IPC could not at all be believed and therefore, the order of conviction of the Additional Sessions Judge, VIth Court at Etah was needed to be interfered with. There is one further aspect of this matter. There is one further aspect of this matter. In our view, the High Court was justified in drawing an adverse inference against the prosecution as it has failed to examine the adjoining grove holders or land holders who were said to have been present in the grove at the time of occurrence. That apart, it was rightly pointed out by the High Court that adverse inference ought to have been drawn against the prosecution as admittedly, the persons who were caught on the spot were caught without any resistance or struggle from their side." 9. In the present case also, there is no independent corroboration available with reagrd to statement of police officers. Similarly, the prosecution has also not produced entries in the Roznamcha, on which basis, secret information has been received by the police officer with regard to assembly of accused persons on the spot concerned. In such circumstances, if the material evidence is withheld by the prosecution then certainly on the basis of aforesaid case law on the point adverse inference ought to be drawn against the prosecution for non-production of the Roznamcha entry in the police station concerned. 10. In such circumstances, in our considered opinion, the learned trial Court has rightly come to the conclusion that prosecution has failed to produce cogent evidence against the respondents/accused, on which basis, they can be held guilty for the offence punishable under sections 399, 402 and 307 of the IPC and 25 and 27 of the Arms Act. The aforesaid finding of acquittal recorded by the trial Court is based on proper and reasonable appreciation of the evidence and no perversity or illegality is apparent in the aforesaid finding, on which basis, the finding of acquittal recorded by the trial Court can be interfered with. 11. Resultantly, no grounds are available for any interference in the impugned judgment of acquittal. Hence, appeal preferred by the appellant/State against the impugned judgment of acquittal being devoid of any merit is dismissed accordingly.