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2011 DIGILAW 595 (MP)

Kishnu alias Kishanbihari v. State of M. P.

2011-05-12

RAKESH SAKSENA

body2011
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 21.3.2007 passed by the Special Judge (M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam) in Special Case No. 134/2001 (Dakaiti), convicting appellant under sections 212 and 216 of Indian Penal Code read with section 11/13 of M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 and sentencing him to rigorous imprisonment for three years with fine of Rs. 2,000/- an each count respectively. 2. According to the prosecution, on 29.8.2001. Additional Superintendent of Police Manoj Kumar Singh received an information from Informer at Bhind that appellant is harbouring a proclaimed dacoit Ramsiya in his house at Village Dulhagan. On receiving such information along with Special Task Force and with Police Officers of Police Station Phoop he went to Village Dulhagan. After dividing the force into parties, he searched the house of appellant and found dacoit Ramsiya hiding in Atari. Some guns were also seized from the house. Appellant was not found at the spot. In execution of the perpetual warrants appellant was arrested on 10.10.2003. 3. During investigation it was found that the arms seized from the house were licensed weapons, however, in view of the fact that appellant had harboured proclaimed dacoit Ramsiya an offence under sections 212 and 216 of IPC was registered against him. 4. After investigation charge-sheet was filed and appellant was put up for trial. 5. It is significant to note that other co-accused persons were also arrested in the same offence and were put up for trial, however, by judgment dated 9th July, 2004 they were acquitted. 6. For substantiating the charges, prosecution examined Vidhyacharan (PW 1), Bashir Khan (PW 3), Karun Kumar Shukla (PW 4), Sunil Kumar Shukla (PW 6), Murari1al Sharma (PW 7), K.K. Mishra (PW 8) and Manoj Kumar Singh (PW 9). Learned Special Judge relying on the evidence adduced in the case held appellant guilty and convicted him of charges under sections 212 and 216 of IPC. 7. Learned counsel for appellant submitted that the learned Special Judge committed error in convicting appellant in the absence of proof that the house from which proclaimed dacoit was apprehended belonged to appellant and or the same was in control or possession of appellant. 7. Learned counsel for appellant submitted that the learned Special Judge committed error in convicting appellant in the absence of proof that the house from which proclaimed dacoit was apprehended belonged to appellant and or the same was in control or possession of appellant. In absence of reliable evidence for proof of the control and possession of appellant on the house from where dacoit was arrested, appellant could not have been convicted under sections 212 and 216 of IPC. 8. On the other hand learned Govt. Advocate for respondent/State submitted that from the evidence adduced by the prosecution it was established that dacoit Ramsiya was arrested from the house of appellant. He submitted that learned Special Judge in paragraph 51 of the impugned judgment held that it was already held in previous trial against other accused persons that the house belonged to appellant. 9. I have perused the impugned judgment and the entire evidence on record. Manoj Kumar Singh (PW 9) CSP Bhind stated that he received information on 29.8.2001 from some informer that proclaimed dacoit Ramsiya was hiding in the house of appellant in Village Dulhagan. He along with Special Task Force and other police officers went to Village Dulhagan and surrounded the house. On search, he caught Ramsiya in the house with fire-arms. Similar statements were made by ASI Phoop K.K. Mishra (PW 8), Head Constable Sunil Kumar Shukla (PW 6) and Head Constable Murarilal Sharma (PW 7). Learned counsel for appellant pointed out that the evidence of these witnesses was inconsistent and contradictory. Though, CSP Manoj Kumar Singh (PW 9) stated that at the time of raiding the house, women and children were not present, but K.K. Mishra (PW 8) stated that the children were present in the house, however, Head Constable Sunil Kumar Shukla (PW. 6) stated that women were present in the house, but they were asked to leave. 10. Apart from above, no documentary record about receiving information from Mukhbir, requisitioning of force. Rojnamcha entries about departure and arrival from the police station were produced in the Court by the prosecution. 11. It is also significant to note that no witness was produced from the locality to establish that the house in which proclaimed dacoit was found taking shelter belonged to appellant. This fact could have been proved even by some documentary evidence. Rojnamcha entries about departure and arrival from the police station were produced in the Court by the prosecution. 11. It is also significant to note that no witness was produced from the locality to establish that the house in which proclaimed dacoit was found taking shelter belonged to appellant. This fact could have been proved even by some documentary evidence. No doubt it is not necessary that the appellant should have been the owner of the house for being liable for the offence, but at least the fact of his control or possession on the premises, or the house, in which the offender was given shelter should have been proved. It appears from the evidence of Sunil Kumar Sharma (PW 6) that three police parties along with Muklzhir proceeded from Police Station Phoop for Village Dulhagan. From some distance Muklzhir pointed out the house saying it was the house of Kishan Master. Except the evidence of aforesaid witness no witness had personal knowledge about the ownership or possession of the house in which the offender was apprehended. There is no evidence on record that the house from which dacoit was arrested belonged to appellant. Since the charge against appellant is also under the provisions of M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 which are stringent by nature and provide minimum sentence of three years, proof of essential facts and ingredients of charge must be stricter. Though it was established from the evidence of Karun Kumar Shukla (PW 4) that Inspector General of Police, Chambal Range had declared reward for the arrest of dacoit Ramsiya, but in the absence of reliable evidence that he was harboured by appellant, appellant cannot be convicted for the offence under sections 212 and 216 of IPC, espically when appellant was not found at the spot. Merely by the fact that appellant remained absconding and was arrested in the year 2003, no inference about his guilt can be drawn. 12. Learned Special Judge in para 51 of the impugned judgment borrowed the findings recorded by his predecessor in a previous judgment passed against other accused persons. In my opinion he committed error in relying upon the evidence adduced in the case which proceeded against other accused persons. The evidence of two cases were different. The finding of one judgment cannot be borrowed and used in another judgment. 13. In my opinion he committed error in relying upon the evidence adduced in the case which proceeded against other accused persons. The evidence of two cases were different. The finding of one judgment cannot be borrowed and used in another judgment. 13. After a close scanning and appraisal of the evidence adduced in the case, I am of the view that prosecution has failed to establish beyond the doubt that the house in which proclaimed dacoit Ramsiya was apprehended belonged to appellant or that appellant harboured or concealed him with a view to screen him from legal punishment. 14. In view of the above discussion the conviction and sentence of appellant under sections 212 and 216 of IPC read with sections 11/13 of M.P. Dakaiti Aur Vyapharan Prahhavit Kshetra Adhiniyam, 1981 is set aside. He is acquitted. Bail bond and surety bond of appellant are discharged. 15. Appeal allowed.