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2010 DIGILAW 293 (MP)

ANWAR @ ANNU v. STATE OF M. P.

2010-03-11

S.K.SETH, S.L.KOCHAR

body2010
Judgment S.L.Kochar, J. ( 1. ) Both these appeals arise out of a common judgment passed by the trial Court, therefore, they are being decided by this common judgment. ( 2. ) The appellants have filed these appeals against the judgment and order of conviction and sentence dated 22.07.2004 passed by the learned Additional Sessions Judge, Khachrod, district Ujjain in Sessions Trial No.09/2002 by which appellants stand convicted under Section 302 of the IPC and sentenced them to undergo life imprisonment with fine of Rs. 1,000/-each with defaulting clause of imprisonment of three months RI each. ( 3. ) According to the prosecution case on 8.9.2001 complainant Rajkumar (PW/ 5) along with his brothers Bhaskar Verma (PW/7); Mahendra (PW/8) and deceased Jugalraj in the night at 10 P.M had gone behind the liquor shop situated at M.G.Road, Nagda. Mahendra and Jugalraj were not taking liquor, therefore, they stayed in the lane and Rajkumar and Bhaskar Verma had gone to liquor shop for purchasing the same. All of a sudden Bhaskar Verma and Rajkumar over heard the shouting of Mahendra that Jugalraj sustained injury on which Rajkumar and Bhaskar Verma rushed towards the place of incident and saw that three persons were assaulting Mahendra and Jugalraj. All those three miscreants while seeing Rajkumar and Bhaskar Verma fled away from place of occurrence. Mahendra was knowing the assailants and also sustained injury on his hand in the same incident whereas Jugalraj sustained injury on chest and other parts of the body. Jugalraj fell on the lane and blood was oozing from his wounds. Rajkumar and Bhaskar Verma reached near him and found him dead. Because of fear, they had ran away from the spot. Rajkumar lodged a report at Police Station Nagda which was recorded by S.H.O Narendra Kumar Dixit (PW/11) vide Ex.P/14. Police registered Crime No.379/ 2001 under Section 302/34 of the IPC and stepped into investigation. On the next day i.e. 9.9.2001 in the morning inquest report Ex.P/2 was prepared by the Police. The spot map Ex.P/3 was also prepared and blood stained and controlled earth were seized from the spot. The dead body of Jugalraj was sent for postmortem examination which was performed by Dr.A.K.Dubey (PW/4). Dr.Dubey also examined Mahindra and gave postmortem report Ex.P/12 as well as MLC report Ex.P/11. The spot map Ex.P/3 was also prepared and blood stained and controlled earth were seized from the spot. The dead body of Jugalraj was sent for postmortem examination which was performed by Dr.A.K.Dubey (PW/4). Dr.Dubey also examined Mahindra and gave postmortem report Ex.P/12 as well as MLC report Ex.P/11. Appellants Anwar and Gopal were arrested on 10.9.2001 and were put for test identification parade conducted by Nayab TehsildarShantilal Shrimaal (PW/10) on 29.11.2001 vide TI parade memo Ex.P/16. Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the case and on completion of investigation filed the charge sheet against the appellants Anwar and Gopal showing that appellant Kanhaiya had absconded. Kanhaiya was arrested during the course of trial and also tried along with other two co-accused in the same trial. ( 4. ) Appellants have denied the charges, therefore, put to trial. They have not examined any witness in defence. Learned trial Court finding the appellants guilty, convicted and sentenced them as mentioned herein above. ( 5. ) We have heard learned counsel for the parties and also perused the entire record carefully. The conviction of the appellants is mainly based on eye-witness account of Rajkumar (PW/5); Bhaskar Verma (PW/7) and Mahendra (PW/8). Learned trial Court sought corroboration from the testimony of Dilipsingh (PW/2) and Mahendra (PW/8) by medical evidence of Dr.A.K.Dubey (PW/4). ( 6. ) The moot question for consideration is whether testimony of two eyewitnesses Bhaskar Verma (PW/7) and Mahendra (PW/8) is worth for placing reliance to prove the guilt of the appellants beyond reasonable doubt?. ( 7. ) Rajkumar (PW/5), the third eye-witness, who lodged the F.I.R Ex.P/14, has turned hostile and deposed that he was detained in lock up by the police in police station and on the next day he had also seen Mahendra and Bhaskar Verma confined in another room of the police station. Bhaskar Verma (PW/7) has admitted this fact in cross-examination. ( 8. ) Bhaskar Verma (PW/7) and Mahendra (PW/8) have deposed that after witnessing the incident immediately they went to the house of deceased and disclosed about the incident and the names of the assailants to his father Dayal Singh (PW/1) and mother Lardkunwar Bai (PW/6). Their this statement is not finding place in their case-diary statements and on confrontation by the defence counsel, they failed to explain this material omission which amounts to contradiction. Their this statement is not finding place in their case-diary statements and on confrontation by the defence counsel, they failed to explain this material omission which amounts to contradiction. ( 9. ) Though they admitted that police station was situated at a distance of 250- 300 meters and house of the deceased was situated at a distance of about 3 kms. but instead of remain present on the spot with Rajkumar and going to the police station with Rajkumar who was not knowing the names of the assailants they had gone to the house of the deceased. They were detained in Police Station and later on on the next day became eye witnesses. It appears that to explain abnormal conduct both the witnesses have given explanation that immediately after the incident they had gone to the house of the deceased and disclosed about the incident as well as names of the assailants. ( 10. ) It is clear from the record and statements of investigating officer Narendra Kumar Dixit (PW/11) and Nayab Tehsildar Shantilal Shrimaal (PW/10) that appellants Anwar and Gopal were arrested on 10.9.2001 and thereafter produced before the concerned Magistrate having jurisdiction but their test identification parade was conducted on 29.11.2001 after two months and nineteen days. During this period, they must have been produced before the Court but investigating officer has nowhere stated about the precaution taken by him to hide the identity of the appellants. The delay in taking identification parade has also not been explained by the investigating agency. Yet there is another serious infirmity in the instant case i.e it is said that Mahendra (PW/8) was knowing all the three accused persons by name then why he was asked in test identification parade to identify the appellants Anwar and Gopal. This shows that investigating agency was not sure about the identity of the appellants and to confirm it they took Mahendra (PW/8) to identify them. ( 11. ) On going through the statements of all the three eye witnesses, we are of the considered view that Mahendra was with the deceased and when assailants attacked the deceased Mahendra immediately rushed to seek help as stated by him up to 50 ft. and shouted towards Kalali (liquor shop). ( 11. ) On going through the statements of all the three eye witnesses, we are of the considered view that Mahendra was with the deceased and when assailants attacked the deceased Mahendra immediately rushed to seek help as stated by him up to 50 ft. and shouted towards Kalali (liquor shop). Thereafter several persons assembled on the spot during this period assailants fled away from the spot and Bhaskar Verma (PW/7), Rajkumar (PW/5) and Mahendra reached on the spot and all the three were not in a position to identify the assailants. ( 12. ) Learned counsel for the appellants have placed reliance on Supreme Court judgments passed in the cases of Kochu Maitheen V. State of Kerala (1998 I MPWN 237); Bachhu Narain Singh V. State of Bihar (2005 SCC (Cri.) 805); State of Kerala V. Nazar (2006) 1SCC (Cri.) 732); Ganraj V. State of Madhya Pradesh ( 2004 (2) MPHT 294 ) and State of Goa V. Sanjay Thakran and another (2007) 2 SCC (Cri.) 162 ) to support their argument about the highly abnormal conduct of both the eye-witnesses, delay in holding test identification parade and defective investigation. ( 13. ) As discussed herein above, it is clear from the evidence on record that the conduct of both the eye witnesses was highly abnormal and they introduced the story of going to the house of the deceased in the night just to explain their conduct, for the first time in the Court. There is inordinate delay in holding test identification parade and the same has not been explained by the prosecution and the prosecution has also failed to explain when Mahendra was knowing the names of the assailants and disclosed to the police why he was called for identifying them in test identification parade. Prosecution has also failed to show any motive for committing crime and both the eye witnesses were detained as suspect by police. ( 14. ) In view of the above, in our opinion, prosecution has miserably failed to establish its case beyond reasonable doubt against the appellants, therefore, these appeals are allowed. The conviction and sentence of the appellants, as passed by the learned trial Court, are hereby set aside. Appellants are in jail. Learned trial Court is directed to release them forthwith, if not wanted in any other criminal case. The conviction and sentence of the appellants, as passed by the learned trial Court, are hereby set aside. Appellants are in jail. Learned trial Court is directed to release them 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. Appeal allowed.