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2011 DIGILAW 223 (CHH)

SHIV PRASAD v. STATE OF C. G.

2011-07-08

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 30.8.2008 passed by the Additional Sessions Judge (FTC) Surajpur, District Sarguja, in Sessions Trial No. 127/2008 convicting the accused/appellant under Section 392/ 397 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000, in default of payment of fine to further undergo rigorous imprisonment for one month. 2. Facts of the case in brief are that on 29.9.2007 at about 4.30 p.m. FIR Ex. P-l was lodged by the complainant namely Parmeshwar (PW -I) alleging that on 28.9.2007 at about 8 p.m. he had gone to Bhatgaon Sharab Bhatti on Hero Honda motorcycle of his brother to take liquor and while after taking liquor he was to start his motorcycle to get back, accused/appellant sat behind him and asked him to drop him at Telgawan. It is further alleged that as soon as they reached near a pond, accused/appellant putting a knife on his neck, made the complainant to stop the motorcycle and then forcibly took out Rs. 450/-from his pocket and ran away with his motorcycle. It is alleged that the complainant returned home on foot and narrated the entire incident to his father and brother Kamal Kumar and then the report was lodged on the basis of which offence u/s 392 IPC was registered against the accused/appellant and after completion of investigation, challan was filed by the police on 24.10.2007 under Section 392 IPC. Criminal Case No. 580/2007 was tried by the Additional Chief Judicial Magistrate, Surajpur and the accused/appellant was convicted under Section 392 IPC and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 1000. Against the order of the Additional Chief Judicial Magistrate when appeal was preferred before the Additional Sessions Judge (FTC) Surajpur, order of the Magistrate convicting the accused/appellant under Section 392 IPC was set aside and the matter was remanded back to the said Magistrate with a direction to proceed further as apparently the offence U/S 397 IPC was also attracted. This order of the appellate Court was challenged by the accused/appellant before this Court by way of criminal revision No. 405/ 2008 but the said revision was dismissed by this Court and as a consequence of which the appellant was again tried by the Additional Sessions Judge for the offences under sections 392/397 IPC. 3. This order of the appellate Court was challenged by the accused/appellant before this Court by way of criminal revision No. 405/ 2008 but the said revision was dismissed by this Court and as a consequence of which the appellant was again tried by the Additional Sessions Judge for the offences under sections 392/397 IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 04 witnesses in support of its case. Statement of the accused /appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that there is an unexplained inordinate delay of about 20 hours in lodging the FIR as the incident had taken place on 28.9.2007 at about 8 p.m. whereas the FIR came to be lodged on 29.9.2007 at about 4.30 p.m. According to the counsel for the appellant, though the distance of the police Station from the place of incident was about one furlong, the report was not lodged promptly. He further submits that there are material contradictions in the case diary statement of the complainant and that of his court statement because in the court statement the complainant has come with entirely a new story. He submits that no money whatsoever was seized from the accused/appellant though he was arrested on 30.9.2007 whereas seizure of motorcycle has not been' proved by the prosecution. He submits that there is no seizure of knife from the accused/appellant and as the description of the weapon has not been given in the FIR or in the oral statement of the complainant, it cannot be said with certainty that any weapon was used by the appellant in commission of the offence and thus the offence under Section 397 IPC is not made out against him. He submits that the complainant himself has stated that while being taken by the accused/appellant on motorcycle he had passed by the busy locality but he did not make any attempt to come out of the clutches of the accused/appellant. He submits that the complainant himself has stated that while being taken by the accused/appellant on motorcycle he had passed by the busy locality but he did not make any attempt to come out of the clutches of the accused/appellant. He submits that according to the complainant himself after the incident he had come home on foot whereas according to the statement of his father Karam Sai (PW-4) the complainant was dropped home by someone else. He submits that in fact as the complainant had pushed the accused/appellant from his vehicle, there was some altercation between the two and when he gave a threat to him to report the matter to the police, to save himself entirely a new story has been put forth by the complainant making false allegation against the accused/appellant. Lastly he submits that the appellant is in jail since 30.9.2007 and therefore if at all the conviction is not going to be set aside, at least his sentence may be reduced to the period already undergone by him. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that minor contradictions and omissions in the statement of the complainant, if any, have to be ignored considering his age at the relevant time. He submits that a named FIR was lodged by the complainant and there was absolutely no reason for the complainant to implicate the accused in a false case. . 7. Complainant (PW -] ) has stated in his evidence that a year back from the date of incident on being asked by his brother-in-law, he had gone to Bhatgaon on the motorcycle of his brother Kamal to get liquor and chicken and while he was purchasing liquor from the Sharab Bhatti, the accused/appellant was already present there and consuming liquor. While he was to leave the Sharab Bhatti after purchasing liquor, the accused/appellant came to him and sat on the motorcycle behind him and putting a knife on his neck he asked him to take to the place of his choice. Thereafter, on the instructions of the appellant, he took the motorcycle through the market and when they reached a vacant place falling between Tilsiwan Para and Telgawan, the accused/appellant made him to stop the motorcycle and asked him to hand over the entire money to him and also took the key of the motorcycle. Thereafter, on the instructions of the appellant, he took the motorcycle through the market and when they reached a vacant place falling between Tilsiwan Para and Telgawan, the accused/appellant made him to stop the motorcycle and asked him to hand over the entire money to him and also took the key of the motorcycle. According to him, at that time he was having Rs. 500 which too was snatched by the accused/appellant and then he asked him to sit on the motorcycle behind him and after reaching Pokhri he would teach him a lesson. According to him, near a tamarind tree at village Telgawan he jumped from the motorcycle and after going to the house of his aunt he narrated the entire incident to his cousin (son of the aunt) and on his request he dropped him home where he disclosed the incident to father and brother. Thereafter, he went to the police station along with his father and brother and lodged the report Ex. P-1. Thereafter, the police had seized the papers of the motorcycle from his brother in his presence vide Ex. P-2 but he was never enquired by the police about the map of the spot nor any spot map was prepared in his presence and that he had not signed Ex. P-3 which is a spot map. In cross examination, this witness has stated that he had informed the police about his being sent by his brother-in-law to Bhatgaon to take liquor and chicken, about the act of the accused/appellant of sitting on his motorcycle, putting a knife on his neck, asking him to drive the motorcycle to a place of his choice, snatching of Rs. 500 by him and then going to his aunt's house at village Telgawan and informing the incident to his cousin (aunt's son), but if those things are not mentioned in the case diary statement Ex. 0-1, he could not tell the reason thereof This witness has further stated that first he disclosed the incident to the son of his aunt but he does not know the name of his aunt. He has stated that his house is about 1 k.m. away from the place of incident. He has stated that when he reached his house, his sister and brother-in-law were also there but except his family members he had not informed the incident to anyone. He has stated that his house is about 1 k.m. away from the place of incident. He has stated that when he reached his house, his sister and brother-in-law were also there but except his family members he had not informed the incident to anyone. He has admitted that he jumped from the motorcycle at Tilsiwan Para chowk where number of houses are there and being a busy street number of persons used to move around there. He has also admitted that when he jumped from the motorcycle he had not raised any cry. Immediately thereafter, he has stated that as it was raining, nobody was present there and that is why he had not raised any cry. He has further admitted that on the west side of Sharab Bhatti, Police Chowki Bhatgaon, is there and beside that Chowki there is State Bank of India and regional office of SECL are situated there. He has further admitted that just near the regional hospital and Police Chowki, quarters of SECL employees are situated there. He has further admitted that close to the Sharab Bhatti, number of mud-houses are also situated some of which are occupied by the employees of SECL and some by others. He has admitted that while near the Sharab Bhatti the accused/appellant had put knife on his neck and even while being taken by him on the motorcycle he had not raised any cry. He has further admitted that in the previous trial before the ACJM also he had disclosed the entire act of the accused/appellant such as putting knife on his neck, asking him to take the motorcycle to a place of his choice, snatching money and taking out the key of motorcycle etc. He has also admitted the fact that he had made a disclosure before the ACJM in previous trial that he informed the incident to the son of his aunt and requested him to drop home but if the same is not recorded in his statement he could not tell the reason thereof. He has further stated that his and his brother's signatures were taken by the police in number of documents and from the date of incident the police authorities kept him in the police station for three days and only after getting the motorcycle he was set free. He has further stated that his and his brother's signatures were taken by the police in number of documents and from the date of incident the police authorities kept him in the police station for three days and only after getting the motorcycle he was set free. A suggestion was put to this witness that on the date of incident there was some accident, he has denied the same. In paragraph 18 of his deposition, this witness has admitted the fact that he does not have the licence of the vehicle but he has denied that he has falsely implicated the accused in this case. Kamal Prasad (PW-2) - the brother of the .complainant has stated in his evidence that on the date of incident on being asked by his brother-in-law, the complainant had gone to get liquor and chicken and when after about 3 hours he returned home, he informed him that the appellant had snatched Rs.500 apart from his motorcycle and chicken. He has further stated as to how the entire incident was narrated to him by the complainant. According to this witness, the report was lodged by the complainant on the same night, his statement was recorded by the police, papers of motorcycle were seized, two days after the incident the appellant was arrested in his presence vide Ex. P3 and the motorcycle was seized from his possession vide Ex. P-4. When this witness was confronted from his case diary statement Ex. D-2, he has stated that all the facts narrated by him in the Court were also disclosed to the police and if the same are missing there-from, he could not tell the reason for that. Likewise, at the time of recording of statement before the Magistrate in the previous trial, he had disclosed every fact there also but if the same is not recorded, he could not tell the reason there-of. This witness has admitted that on the west side of the Sharab Bhatti, police chowki, State Bank of India and the hospital are there. According to him, the road always used to remain busy and the complainant had informed him that first he had gone to the house of his relatives. According to him, on the same night the report was lodged which was written by the police but on the second day the complainant was again called in the police station. According to him, the road always used to remain busy and the complainant had informed him that first he had gone to the house of his relatives. According to him, on the same night the report was lodged which was written by the police but on the second day the complainant was again called in the police station. He has admitted the fact that after the incident for the first time he saw his vehicle in the police station and he was not aware whether the said motorcycle was seized from the house of the appellant. However, his signatures were obtained by the police in document EX.P-4. He has again stated that in his presence the motorcycle was not seized by the police and then there after he has stated that the motorcycle was seized in presence of his brother (the complainant herein). In paragraph 9 of his evidence, this witness has again stated that while lodging the report in the night he, the complainant, his father and brother-in-law had gone to the police station and returned home in the night itself and that it is incorrect to say that the police had detained the complainant on the date of incident. He has stated that on the date of incident itself, statements of the witnesses were recorded and thereafter the police never came to inquire about the incident nor had he gone to the place of incident. He has denied the fact that the motorcycle of the complainant had met [with an accident with the appellant or there was any dispute between them and for that reason a false report has been lodged. Karam Sai (PW-4) has stated in his evidence that on the date of incident the complainant had gone to take chicken and liquor and after he returned home, he informed that when he was coming after purchasing liquor and chicken, the appellant sat on his motorcycle and near Telgawan he had taken the keys thereof. According to this witness, when the complainant had come to his house, one boy of village Telgawan was with him. He however has denied any seizure from the complainant in his presence. He has stated that the motorcycle was not seized by the police in his presence. He has admitted his signature on documents of Ex. Pr I, P-4 and P-5 and at this stage this witness has been declared hostile. He however has denied any seizure from the complainant in his presence. He has stated that the motorcycle was not seized by the police in his presence. He has admitted his signature on documents of Ex. Pr I, P-4 and P-5 and at this stage this witness has been declared hostile. In cross examination he has stated that he could not tell as to who had dropped his son after the incident but then he has stated that someone had dropped the complainant at home on motorcycle. According to him, when the complainant reached his house, his son-in-law was there but the complainant had not informed about the incident/to his aunt or cousin (son of aunt) and immediately after th1e complainant reached home, the report was lodged. P.P Gupta (PW-3) is the investigating officer who has fully supported the case of the prosecution. 8. From the record it is manifestly clear that there is an inordinate delay of 20 hours in lodging the report which has not been properly explained by the prosecution. This apart, the record further shows that there are material contradictions and 9missions in the evidence of the complainant, in the report lodged by him and in the statement recorded under Section 161 Cr.P.c. According to the FIR, he had gone to Sharab Bhatti to purchase liquor and while getting back, accused/appellant sat behind him on his motorcycle and asked to drop him at Telgawan and as soon as they reached near a pond, he put a knife on his neck, made 1he complainant to stop the motorcycle and then forcibly took out the money from his pocket and ran away with his motorcycle whereas according to his court statement when he was returning after purchasing liquor, accused/appellant c1me to him and sat on the motorcycle behind him and putting a knife on his neck he asked him to take to the place of his choice -and on the way near a tamarind tree at village Telgawan he jumped from the motorcycle, went to the house of his aunt and narrated the entire incident to his cousin (son of the aunt) who on his request dropped him home where he disclosed the incident to his father and brother. Even according to the father of the complainant (PW-4) when the complainant had come to his house, one boy of village Telgawan was with him and it is he who had dropped him home after the incident. Further, according to the complainant immediately after the incident he returned to his house and then the report was lodged promptly but the record shows that the report was lodged 20 hours after the incident. Though delay in lodging the report is not fatal in each and every case yet it has to be considered keeping in view the facts and circumstances of each case. In the case of Thulia Kali Vs. State of Tamil Nadul, the Apex Court has held as under: "First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be over estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in 'lodging the first information report quite often results in embellishment .which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained." In this context I may refer with profit to the decision rendered in the case of Mehraj Singh Vs. State of Up,2, wherein it has been held as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of. evidence for the purpose of appreciating the evidence led at the trial. State of Up,2, wherein it has been held as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of. evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story." 9. In the case in hand, according to the case of the prosecution, the incident had taken place on 28.9.2007 at about 8.00 p.m. whereas the FIR Ex.P/I was lodged by the complainant on 29.9.2007 at about 4.30 p.m. According to the case of prosecution itself, the distance of police station from the place of incident was about one furlong, but yet the report was not lodged promptly. Further according to the complainant himself on the western side of Sharab Bhatti, police chowki Bhatgaon is there, beside which there is SBI and regional office of the SECL. Complainant has further admitted that just near the regional office of SECL quarters of SECL employees are also there and close to the Sharab Bhatti number of mud houses are situated some of which are occupied by the employees of the SECL and some by others. Despite all these facts the complainant chose to remain silent for about 20 hours which creates doubt in the mind of this Court whether the incident had in fact taken place or not. According to the complainant himself, he drove his motor cycle from the market and also from the main road of the city where heavy crowd was there but yet the complainant did not raise his cries or made any effort to get himself free from the clutches of the accused/appellant. According to the complainant himself, he drove his motor cycle from the market and also from the main road of the city where heavy crowd was there but yet the complainant did not raise his cries or made any effort to get himself free from the clutches of the accused/appellant. This apart defence of the accused/appellant also does not look improbable that vehicle of the complainant had dashed against the accused/appellant as a result of which there was some dispute between the two which later culminated in concoction of a false report having been lodged by the complainant against the accused/appellant. 10. The record goes to show that no recovery of money or liquor was made from the accused/appellant. Kamal Prasad (PW-2) - the brother of the complainant is also the witness to the seizure of motorcycle vide Ex. P-4 who has stated that after the incident for the first time he saw the vehicle in question in the police station and he was not aware as to whether it was seized from the house of the appellant. According to this witness, his signatures were obtained by the police in the seizure memo Ex. P-4. He has further made it clear that in his presence no motorcycle was seized by the police and it was seized in the presence of his brother. Another important feature of this case is that the appellant has already remained in jail for more than three and a half years. 11. Considering the facts and circumstances of the case and material available on record, this Court is of the considered opinion that the prosecution has utterly failed to prove its case beyond reasonable doubts. Evidence of the witnesses being contradictory to each other does not inspire full confidence of this Court and that being so the benefit of doubt has to go to the accused/ appellant. More importantly, there is delay of about 20 hours in lodging the FIR which has not been satisfactorily explained by the prosecution. 12. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As he is in jail, he be set free forthwith if not required in any other case. Appeal Allowed.