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Madhya Pradesh High Court · body

2009 DIGILAW 871 (MP)

Mahesh Goswami v. State of M. P.

2009-07-28

B.M.GUPTA

body2009
JUDGMENT 1. Both these appeals are arising out of one judgment, hence, both have been heard together and are being disposed of by this common judgment. 2. Criminal Appeal No.239/03 has been filed by appellant Pappu @ Umar Khan and Criminal Appeal No.223/03 has been filed by appellant Mahesh S/o Lachchi Ram. The appellants have preferred these two appeals impugning one common judgment dated 28th February, 2003 rendered by Special Judge (NDPS) and Additional Sessions Judge, Gwalior in ST No.59/99. Vide the impugned judgment, the learned Judge has convicted the appellants for commission of offence punishable under section 392 read with section 397 of IPC and directed them to undergo rigorous imprisonment for a period of seven years. 3. The factual matrix of the case is that on 4th May, 1998 at about 8 p.m., complainant Kamal (PWl) alongwith his younger brother Hari Kishore (PW2) was going on scooter towards his home from Dal Bazar, Gwalior. When they reached in the lane of Sube-ki-Goth, they were restrained by three unknown persons. Out of them, one was carrying Katta (country made firearm) and another was carrying knife in his hand. All the three accused threatened them that if the currency notes kept in dickey of the scooter are not given to them, then they will kill both of them. On account of the same, the key of the dickey was handed over to them by complainant Kamal (PW 1). Thereupon all the three persons took out an amount of Rs.l ,25,000/- kept in the green coloured bag in the dickey of scooter and ran away. Upon lodging FIR, Crime N 0.159/98 was registered at Police Station, Inderganj, Gwalior, for the aforesaid offence along with section 25 of the Arms Act against three unknown persons. During investigation, nothing could be recovered from appellant Pappu alias Umar Khan and one empty bag of green colour was seized from the possession of appellant Mahesh, which was identified by complainant Kamal (PW 1)180[2009(111) in a test identification parade. The test identification parade of both the appellants was also conducted during investigation in which both could not be identified by both the aforesaid brothers; Kamal (PW 1) and Hari Kishore (PW2). After completing the investigation, charge-sheet was prepared against three accused persons including both the appellants. The test identification parade of both the appellants was also conducted during investigation in which both could not be identified by both the aforesaid brothers; Kamal (PW 1) and Hari Kishore (PW2). After completing the investigation, charge-sheet was prepared against three accused persons including both the appellants. As observed in para 2 of the impugned judgment, co-accused Haneef has been separately tried and convicted for the aforesaid offence under section 392 read with section 397 of IPC and has been directed to undergo rigorous imprisonment for a period of seven years. As the present appellants could not be arrested in time and arrested subsequently, hence charge-sheet against them was filed at subsequent stage and thereafter they have been tried, convicted and sentenced as aforesaid. Hence, these appeals. 4.Shri Sunil Soni, learned counsel appearing on behalf of appellant Pappu alias Umar Khan, has submitted that the FIR is against unknown persons. Nothing could be recovered from his possession. He could not be identified during identification parade. Only on the ground of identification in the Court, he has been convicted. In the light of earlier identification, subsequent identification in the Court ought not to have been relied on. Except this evidence, nothing is there against him. 5. Shri Arunb Barua, learned counsel appearing on behalf of appellant Mahesh, has submitted that with regard to identification, same facts are on record as about co-accused/appellant Pappu alias Umar Khan. One green coloured bag has been recovered from his possession. Although the same has been identified during test identification parade in the Court but document of test identification parade could not be proved by the officer, who conducted it, and as per the statement of complainant Kamal (PWI) such bags are still available in the market. No marks of identification was mentioned at any point of time. In the last, he has submitted that once during test identification which was first in time, this appellant could not be identified by both the brothers, the other evidence, if any, available against him ought not to be considered as a base of conviction. Hence he also deserves acquittal. 6. In the last, he has submitted that once during test identification which was first in time, this appellant could not be identified by both the brothers, the other evidence, if any, available against him ought not to be considered as a base of conviction. Hence he also deserves acquittal. 6. Shri R.D. Agrawal, learned Panel Lawyer appearing for respondent/State, has submitted that with regard to appellant Mahesh,in memorandum EX.P-15 under section 27 of Evidence Act, he admitted the fact that he was given an amount of Rs.50,000/- by co-accused Haneef and thereafter vide seizure memo EX.P-16 one green bag was seized from his possession. With regard to both the appellants, he has submitted that the identification of both the appellants in the Court is sufficient. If during test identification parade they could not be identified, that is not material. 7. It is an admitted fact that at the time of incident robbers could not be identified. It is also not disputed that during test identification parade both the appellants could not be identified: Even otherwise, for the sake of clarity in the judgment, the statement of Mahendra Bihari (DW 1), Naib Tehsildar, who conducted the test identification parade of both the appellants, is material. As he was not examined on behalf of prosecution, he has been examined on behalf of the defence. He has stated that on 2nd September, 2002 in the capacity of Naib Tehsildar, he conducted identification parade of both the appellants during which other persons of similar features were also included, but both the brothers; Kamal and Hari Kishore could not identify them. He has further stated that instead of identifying the appellants, both the brothers identified another person included alongwith the appellants. He also stated that with regard to this act, he prepared EX.P-13 and Ex.P-14, memorandum of identification, and at the relevant time, he obtained signatures of aforementioned both the brothers. On perusal of this document, the statement of this witness gets corroborated. Both the witnesses have admitted their signatures on these two documents. They have not mentioned themselves to be as illiterate persons. In that way, this identification parade conducted during investigation appears material in favour of the appellants, which was prior in time to their identification in the Court during trial. 8. Both the witnesses have admitted their signatures on these two documents. They have not mentioned themselves to be as illiterate persons. In that way, this identification parade conducted during investigation appears material in favour of the appellants, which was prior in time to their identification in the Court during trial. 8. On asking Shri R.D. Agarwal, learned P.L. has admitted this fact that the judgments of apex Court cited by the trial Court in para 13 and 14, are not based on the fact that during test identification parade the identification could not be done and if thereafter, the appellants were identified in the Court, on that basis the appellants were convicted. Lack of test identification is not very material, if during trial the accused persons are identified by the witnesses, but if investigating agency chooses to conduct test identification parade and during that parade, the accused persons are not identified, who got subsequently identified in the Court, it casts a doubt on the testimony of the witnesses. Statement of witness Mahendra Bihari (DW1), who is responsible officer of the Government, has been corroborated by EX.P-13 and Ex.P-14, which are the documents, the prosecution chose to be included in the charge-sheet. It appears a material fact on which the statement of witness Mahendra Bihari (DW1) can be relied on. Learned Judge while placing reliance on the identification of the appellants in the Court, has passed their conviction on the same. In my considered opinion, it is erroneous. 9. With regard to seizure of green coloured bag from the possession of appellant Mahesh, three witnesses were available to the prosecution; two panch and one investigating officer Bhagwan Singh (PW3) has only admitted his signatures on seizure memo (Ex.P-16), but with regard to seizure of bag from the possession of the appellant, he does not support the prosecution and has been declared hostile. He has admitted in paragraph 3 that he runs Tea and Pan shop near the police outpost at Shinde-ki-Chhawani, Gwalior. Police personnel used to sit at his shop frequently, hence, he is having good relations with them. On account of same, he has been made a witness in near about 40 cases. Just to escape himself from annoyance of police personnel, he puts his signatures on the papers prepared by them. Police personnel used to sit at his shop frequently, hence, he is having good relations with them. On account of same, he has been made a witness in near about 40 cases. Just to escape himself from annoyance of police personnel, he puts his signatures on the papers prepared by them. As per the statement of this witness, he put his signatures at his shop which is situated in Shinde-ki-Chhawani. It is argued on behalf of the appellants that EX.P-16 has been prepared at Lashkar near a school situated at Gorkhi. There is more than I km. distance between these two places. This point of distance has not been countered on behalf of the State. Thus, it appears that this witness Bhagwan Singh (PW3) is not a witness of locality. 10. Other witnesses; Ramasre (PW4), Police Constable, and O.P.Sagoria (PW6), the Investigating Officer, have given the statements in support of seizure of this bag from the house of appellant. Time of seizure is 8:30 hours. Admittedly, the place of seizure is in between market and near this place, office of Collector is also situated. It cannot be accepted that at such place, other independent witnesses, other than a police constable, were not available. In view of this, the statement of these two police officers with regard to seizure memo does not appear safe for placing reliance. 11. Kamal (PW1) has stated in para 2 that bag in which the currency notes were put was seized by the police and the same was identified by him during identification parade. He has proved his signature on EX.P-12 which is memorandum of identification of this bag prepared by one Virendra Singh, Advocate, who is member of Nagar Nigam also. For the reasons best known to the prosecution he has not been examined. In Ex.P12 the place of identification parade has been mentioned as Community Hall Pardi Mohalla. It is argued on behalf of the appellants that the place of Pardi Mohalla is near about one and half kms. from the Police Station Inderganj, which has not been countered on behalf of the State. Vide para 10 of the statement of Kamal Garg (PW 1), it appears that this identification was conducted at Police Station Inderganj and EX.P-12 was prepared at the same place. Thus this identification also becomes doubtful. from the Police Station Inderganj, which has not been countered on behalf of the State. Vide para 10 of the statement of Kamal Garg (PW 1), it appears that this identification was conducted at Police Station Inderganj and EX.P-12 was prepared at the same place. Thus this identification also becomes doubtful. That apart, witness Kamal Garg (PWl) has admitted in the same para that he had purchased this bag from market and same type of so many bags are hanging in the shops for sale. No mark of identification has been mentioned by this witness. It may be possible that a person who has used the bag, can identify his bag by its perusal, but considering the aforementioned fact with regard to identification parade, placing reliance on such identification does not appear safe. Admittedly no other legal evidence is available on record against this appellant Mahesh also. In view of the above, conviction of both the appellants for the aforesaid offence appears erroneous and deserves to be set aside. 12. Consequently, both the appeals are allowed. Conviction of the appellants under section 392 read with section 397 of IPC is set aside. They are acquitted from this charge. With regard to disposal of property in the case, vide para 23 of judgment, the learned Judge has endorsed the order passed in para 29 of the judgment against co-accused Haneef, which deserves to be affirmed. Hence, the order with regard to disposal of the property seized in the case passed in paragraph 29 of the judgment dated 18th January, 2000 of co-accused Haneef is hereby affirmed.