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Madhya Pradesh High Court · body

2009 DIGILAW 563 (MP)

Kalu Singh v. State of M. P.

2009-04-28

S.A.NAQVI, S.L.KOCHAR

body2009
JUDGMENT Kochar, J.--l. Since all the aforesaid five appeals arise out of one and the same judgment, they are decided by this common judgment. 2. The appellants/accused persons stood convicted under Sections 396, 397 and 460 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and fine of Rs. 1,000/-, RI. for seven years and fine of Rs. 500/- and RI. for ten years and fine of Rs. 500/- respectively and in default of payment of fine to suffer additional RI. for one year each. All the substantive jail sentences have been directed to run concurrently. Vide judgment dated 10.02.2003 passed by the learned 1st. Add 1. Sessions Judge, Barwani in Sessions Trial No. 103/2002. Aggrieved by this judgment of conviction and order of sentence, the appellants have preferred these appeals under Section 374 of the Code of Criminal Procedure. 3. Laconically the prosecution case as placed before the trial Court is that on 16.12.2001, in the night at 11.00 p.m., complainant PW-1 Jakiabai was sleeping along with her family members inside her house. One unknown person pulled her quilt because of which she woke up and in the electric light, saw a person standing who threatened her and asked to go away from in front of the almirah. Jakibai went away and on direction by miscreant, opened the almirah by key. On hearing the sound, her daughter-in-law PW-2 Mubinabai woke up and asked as to who had opened the door. She was assaulted by the miscreants. Jujarali, the son of Jakibai also woke up and shouted "CHOR CHOR" and he too was assaulted by the miscreants by sharp edged weapon. PW-3 Akbarali, father of Juijarali also woke up. He also was beaten by the miscreants. The miscreants pulled out the articles from inside the alrnirah. At that time five to six miscreants also assembled in the same room. Two bangles from the wrist of the complainant were taken out by the miscreants. Ex. D/l Dehati Nalishi was recorded by the Sub Inspector Shravanan Kumar (PW-18) at the instance of Jakiabai. On the basis of the Dehati Nalishi, First Information Report Ex. P/13 was recorded in the Police Station and Crime No. 529/2001 was registered. The deceased and injured witnesses were sent for medical examination to the hospital and were examined by PW-7 Dr. Purohit. Dr. Purohit issued MLC reports Ex. On the basis of the Dehati Nalishi, First Information Report Ex. P/13 was recorded in the Police Station and Crime No. 529/2001 was registered. The deceased and injured witnesses were sent for medical examination to the hospital and were examined by PW-7 Dr. Purohit. Dr. Purohit issued MLC reports Ex. P/7 and P/S of PW-2 Mubinabai and PW-3 Akbarali. He also sent information Ex.P/11 to the concerned Police. X-Ray report of PW-3 Akbarali is EX.P/9. On completion of inquest report Ex. P/14, the dead body of Jujarali was sent for post-mortem examination and the same was conducted by PW-II Dr.Rajesh Jain. Post-mortem report is Ex.P/16. PW-2 Mubinabai and PW-3 Akbarali were admitted in the hospital and after treatment were discharged. Their Bed Head Tickets are EX.P/17 and P/18. 4. The appellants were arrested on 24.12.01 and on disclosure statement of appellant Bansia, two brass-bangles and one axe were seized and from other appellants pieces of greetings-cards and white paper having seal of the firm or shop of the deceased were seized. The appellants were put for Test Identification Parade in jail, which was conducted by PW-9 Naib Tahsildar Solanki. The Test Identification Parade memo of the persons is EX.P/1 and that of property is EX.P/12. After conclusion of investigation, charge sheet was filed against the present appellants showing absconding other two accused persons named Makram and Sardar. 5. The appellants abjured their guilt and pleaded false implication. They did not examine any witness in defence whereas the prosecution has examined in total 19 witnesses and adduced 53 documents to prove its case. Learned trial Court finding the prosecution case proved convicted and sentenced the appellants as mentioned herein-above. 6. Having heard learned counsel for the parties and after perusing the entire record carefully we are of the opinion that conviction of the appellants is not sustainable. 7. The prosecution case is mainly based on the evidence of three injured eye-witnesses namely, PW-l Jakibai, PW-2 Mubinabai and PW-3 Akbarali. They have not named any of the appellants in their police statements as well as in the First Information Report. PW-l J akiabai identified all the appellants in Test Identification Parade held on 31.12.2001 by PW-8 Naib Tehsildar Shri Solanki who proved the identification memo EX.P/t. PW-l Jakiabai has deposed in para 2 of her examination-in-chief that six miscreants entered inside her room. PW-l J akiabai identified all the appellants in Test Identification Parade held on 31.12.2001 by PW-8 Naib Tehsildar Shri Solanki who proved the identification memo EX.P/t. PW-l Jakiabai has deposed in para 2 of her examination-in-chief that six miscreants entered inside her room. They had covered their heads by clothes and were aged between 35 and 45 years. She has also stated that she identified all the thieves in the Police Station and thereafter in jail. At the time of identification in jail, her husband PW-3 Akbar Ali was also present with her. This positive admission of Jakiabai is showing that the Test Identification Parade in jail by Executive Magistrate was not above board and the same looses its sanctity, because the appellants were shown in the Police Station prior to holding of Test Identification Parade. In para 13, also, she has stated that she herself, her daughter-in-laws PW-2 Mubinabai and husband PW-3 Akbarali reached at the Police. Station and police got identified all the six miscreants. The Supreme Court in the case of Ameet Singh v. State of Maharashtra [2007 (1) SCC (Cri.) 582] after considering all previous plethora of Supreme Court judgments on the law of identification as per provision under Section 9 of the Indian Evidence Act, has observed in para 13 as under:- "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 vazhar 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 varacity. 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 varacity. 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 eyewitnesses 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." 8. In view of the aforesaid legal position and statement of PW-l JakiyaBai, the identification of the appellants in Court is not worth for placing reliance. 9. The next witness is PW-2 Mubina Bai. She was not called by the investigating agency for taking part in the test identification parade, therefore, the dock identification of appellant Mala for the first time by this witness cannot be accepted. The incident occurred in the dead hours of night, when she was sleeping. There was no sufficient light and she was sleeping, thereafter all of a sudden she woke up. In that situation, it would be very difficult for her to identify the miscreants for the first time in Court after lapse of more than eight months. In cross-examination para-3, she has deposed that she had not gone to the police station or to jail to identify any of the accused and she had seen the appellant Mala for the first time in Court. In cross-examination para-3, she has deposed that she had not gone to the police station or to jail to identify any of the accused and she had seen the appellant Mala for the first time in Court. If this is so, how she could have identified appellant Mala as one of the miscreants taking part in commission of dacoity inside her house. In para-4, she was confronted with her case diary statement Ex.D/3 about omission of specific description or feature of the miscreant that he was having gray eyes and moustache. She failed to assign any reason for this material omission which amounts to contradictions. The statement of Mubina Bai is not helpful to the prosecution. 10. The last witness is PW-3 Akbar Ali, who was aged about76 years at the time of incident, and in Court he identified only appellant Pyara Singh to whom he did not identify in test identification parade (Ex.PIl). In the parade, he identified appellants Mala and Bansiya (in his deposition para-6 it appears that because of typing mistake in place of Bansiya, the name of Sardar is typed), but in Court he did not identify them and on confrontation with the identification memo (Ex.P/1), he failed to give any explanation for this contradiction. He has also stated that because of assault he was not very much conscious and was not knowing, as to when he was interrogated and when he had gone to identify the miscreants in jail. Looking to the statements of all these three eyewitnesses of the incident, we are of the considered view that the prosecution has failed to establish, beyond reasonable doubt, the presence of the appellants inside the house of the complainant at the time of commission of dacoity. 11. The second limb of evidence relied upon by the learned trial Court is the recovery of two brass bangles, pieces of envelop and greeting cards as well as white paper having seal of medicine shop of the deceased. All the independent witnesses of memorandum and seizure have turned hostile to the prosecution and the recovery is based only on the testimony of PW-18 Shrawan Kumar, Sub Inspector. Sub Inspecoter Shrawan Kumar has proved his signature on memorandum statements of the appellants, vide EX.P/28 to P/33, which were exhibited in Court. He has no where stated, what statement for discovery of fact was given by each accused. Sub Inspecoter Shrawan Kumar has proved his signature on memorandum statements of the appellants, vide EX.P/28 to P/33, which were exhibited in Court. He has no where stated, what statement for discovery of fact was given by each accused. It is the settled legal position that the contents of memorandum, Panchnama and seizure memo themselves are not admissible in evidence, and the same can be used for contradiction and corroboration to the statement of witnesses given in Court and for refreshing memory of scribe as per provision under Section 159 of the Indian Evidence Act. [SCC Bhagirath and others v. State of M.P. [ 1958 JLJ 900 = 1958 MPLJ 745 ]. In view of this legal position, the prosecution has utterly failed to prove the disclosure statements given by the appellants as per provision under section 27 of the Indian Evidence Act, therefore, recovery of all the aforesaid articles from exclusive possession of the appellants is not proved in accordance with law by the prosecution. Hence, no reliance can be placed on this evidence. 12. PW-3 Akbar Ali has denied the contents of list (Ex.P/2) of property of dacoity, which were taken away by the miscreants. Akbar Ali has admitted only signature and deposed that who wrote and gave that list, he was not knowing. In this view of the matter, the prosecution has also failed to establish by adducing cogent and reliable evidence with regard to looted property. The evidence of recovery of pieces of envelop, greeting cards, pieces of white paper of letter pad at the instance of appellant is also not convincing, as to why the miscreants would take all these papers and keep them till its recovery. 13. Resultantly, for the foregoing reasons, the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt, therefore, the impugned judgment and order of conviction as passed by the learned trial Court against the appellants are hereby set aside. Appellant Bansiya is in jail. The trial Court is directed to release him forthwith, if not wanted in connection with any criminal case. The remaining appellants are on bail, their bail and surety bonds shall stand discharged. 14. A copy of this judgment be sent to the trial Court along with its record for immediate compliance. 15. Appellant Bansiya is in jail. The trial Court is directed to release him forthwith, if not wanted in connection with any criminal case. The remaining appellants are on bail, their bail and surety bonds shall stand discharged. 14. A copy of this judgment be sent to the trial Court along with its record for immediate compliance. 15. Original judgment is kept in Criminal Appeal No. 285/2003, a copy where of be placed in the record of Criminal Appeal No. 307/03, 359/03, 3721.