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2011 DIGILAW 792 (MP)

SHABIR v. STATE OF M. P.

2011-07-20

A.K.SHRIVASTAVA

body2011
JUDGMENT : 1. Judgment passed in this appeal shall also govern the disposal of connected Criminal Appeals No. 1057/1996 (Ramprasad vs. State of M. P.) and 1068/1996 (Dinesh vs. State of M. P.) since they have arisen from the common judgment of conviction and order of sentence. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 5-12-1996 passed by learned Additional Sessions Judge, Agar, District Shajapur in Sessions Trial No. 137/1985 convicting the appellants under sections 395 and 450, Indian Penal Code and thereby sentencing them to suffer R.I. of four years and three years respectively apart from the fine and the defaulting clause mentioned in the impugned judgment, the appellants have knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that on the report lodged by Ramchandra Soni a case was registered against the appellants under sections 457 and 380, Indian Penal Code, but, later on it was altered to sections 450 and 395 Indian Penal Code. After the stolen articles were seized and the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court or trial. 4. Learned Trial Judge on the basis of the allegations made in the charge-sheet, framed the charges punishable under sections 395 and 450, Indian Penal Code against the appellants which they denied and requested for trial. 5. The prosecution, thereafter examined the witnesses and proved the documents. The defence of the appellants is of false implication and the same defence they set-forth in their statements recorded under section 313, Criminal Procedure Code, however, in support of their defence they did not choose to examine any witness. 6. Learned Trial Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellants and eventually, convicted them and passed sentence which I have mentioned herein-above. 7. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 8. 6. Learned Trial Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellants and eventually, convicted them and passed sentence which I have mentioned herein-above. 7. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 8. The contention of learned counsel for the appellants in all the appeals is that two persons namely, Shakir and Pradeep were named in the FIR and other accused persons are unknown. Learned counsel submits that all the appellants were arrested on 26-10-1985 while accused Dinesh was arrested on 29-10-1985. Although these appellants were arrested on these dates but accused Dinesh was not included in the test identification parade, although appellants Shabir and Ramprasad were put for test identification parade along with other accused persons who have been acquitted by the trial Court. Appellants Shakir and Pradeep were not included in the test identification parade because they have been named in the FIR. In the test identification parade, appellant Shabir was identified by Devilal (PW-2) while Jagdish (PW-4) identified appellant Ramprasad. The contention of learned counsel is that there is no justification on the part of the investigating agency to put these accused persons, in test identification parade after great delay. Learned counsel by inviting my attention to the evidence of Hindu Singh Chundawat (PW-14), who conducted the test identification of the accused persons, has submitted that this witness has admitted in cross-examination (para-8) that he along with other witnesses Jagdish and Devilal who were required to identify the accused persons, together came in the jail premises and the Jailer first of all called those accused persons who were to be identified. Thereafter, other accused persons were also called and lastly those- accused persons who were required to be identified were mixed with similar type of other persons and therefore, if that would be the position, this type of test identification cannot be said to be a fair test identification parade in the eyes of law because to the witnesses Devilal and Jagdish the accused persons who were to be identified were already shown prior to the test identification parade. 9. By attacking the recovery part of the case, learned counsel submits that the recovery is not at all reliable and is also not proved. 9. By attacking the recovery part of the case, learned counsel submits that the recovery is not at all reliable and is also not proved. Further it has been contended by them that stolen articles which were required to be put for identification were already shown to the complainant and in this regard my attention has been drawn to paras 9 and 10 of the testimony of complainant Ramchandra (PW-1). Thus, according to learned counsel if the stolen articles were already shown before their test identification the same is not fair and in accordance with law. 10. It has also been put forth by learned counsel for the appellants that although accused Shakir and Pradeep are named in the FIR but if the testimony of independent witnesses Lalsingh (PW-8) is taken into consideration in proper perspective it would reveal that the complainant party was shifting the alleged stolen goods here and there because looking to its huge quantity and further because the Income Tax and Sales Tax Departments were going to raid them, therefore, they were kept in the house of Raghunandan Soni who is father of appellant Dinesh in whose house appellant Shakir and Pradeep happens to visit frequently and these two appellants are well known to the complainant party, therefore, since the recovery is not proved, the appellants cannot be convicted. 11. On the other hand, Shri Kshitij Vyas, learned counsel for the State argued in support of the impugned judgment. 12. Having heard learned counsel for the parties I am of the view that this appeal as well as Criminal Appeals No. 1057/1996 (Ramprasad vs. State of M.P.) and 1068/1996 (Dinesh vs. State of M.P.) deserve to be allowed. 13. In the present case, seven persons were tried and out of these seven persons, Shantilal and Hiralal were acquitted by the trial Court and the State has not preferred any appeal against them. The total appellants in all the three appeals are five in number and except appellants Shakir and Pradeep, all the three appellants were unknown as their names were not mentioned in the FIR. Admittedly, Dinesh who is an unknown accused was not put for test identification parade for the reasons best known to the prosecution. However, appellants Ramprasad and Shabir were put for test identification parade. Admittedly, Dinesh who is an unknown accused was not put for test identification parade for the reasons best known to the prosecution. However, appellants Ramprasad and Shabir were put for test identification parade. On going through the testimony of Hindu Singh Chundawat, Naib Tehsildar (PW-14), who conducted the test identification parade, this Court finds that it has come in para-8 of his testimony that he along with other witnesses Jagdish and Devilal went together in the jail compound. Devilal and Jagdish are the witnesses who were required to identify the accused persons. It has further come in his testimony that this witness (PW-14) first of all called the accused persons who were required to be identified and thereafter other accused persons were called and then some other persons of similar appearance were mixed with the accused persons and they were included in the test identification parade. According to me, if the accused persons who were to be identified by the witnesses Jagdish and Devilal were already shown by Naib Tehsildar earlier to the test identification parade, the sanctity of test identification loses all its significance and no reliance can be made even if the accused persons have been correctly identified by these witnesses. 14. For the reasons best known to the investigating agency unknown accused-appellant Dinesh was not put for test identification. Apart from this, except appellant Dinesh who was arrested on 29-10-1985 all other accused persons were arrested on 26-10-1985r but, they were put for test identification after several days and there is no explanation in this regard nor there is any evidence that during this long period they were not shown to the witnesses. It has already been turned out from the testimony of Hindu Singh Chundawat, Naib Tehsildar (PW-14), that earlier to the test-identification parade, appellants Shabir and Ramprasad were already shown to the witnesses and hence, I am of the view that conviction cannot be based upon the lest identification parade of the accused persons. 15. In the present case, the recovery of stolen articles has not been proved by the prosecution in accordance with law. All the stolen articles have been seized from the open place while the articles which are seized from appellant Dinesh were recovered from one pit which is also an open place. In this context, the evidence of Investigating Officer may be seen. All the stolen articles have been seized from the open place while the articles which are seized from appellant Dinesh were recovered from one pit which is also an open place. In this context, the evidence of Investigating Officer may be seen. Nowhere it is borne out from the evidence of Investigating Officer that the places from which alleged stolen articles were seized at the instance of appellants were in their possession. The Division Bench of this Court in Chandra Kumar Kankariya and others vs. State of M.P., 2006(3) MPLJ 280 has held that if the place from where the seized articles were found is an open place, the possibility that they had mere knowledge about the alleged articles kept at a particular place cannot be ruled out and it cannot be accepted as an incriminating circumstance against the accused. 16. In the present case, the witness to the seizure memo of the stolen articles are Babusingh (PW-5), Lalsingh (PW-8) and Ramlal (PW-12). Out of these three witnesses, Babusingh (PW-5) and Lalsingh (PW-8) are hostile witnesses and have not supported the case of prosecution and from their testimony the recovery is not proved. So far as evidence of Ramlal (PW-12) is concerned, he has simply stated that after closing his shop at 10.00 in the night he was going back to his home, at that juncture, Police Inspector called him and got his signature obtained on the panchnama. Thus, according to me, from the testimony of these three witnesses the recovery of the stolen articles from the possession of the appellants had not been proved. 17. So far as the proving of the seizure of the stolen articles from the testimony of the Investigating Officer, Sushil Trivedi (PW-22) is concerned, nowhere in his testimony he has stated that any of the accused has so stated that "after committing the theft I have kept the stolen articles at a particular place". According to me, the difference between "I have kept the ornaments at a particular place" and "the ornaments are kept or will be found at a particular place" can well be realised. While the first sentence connotes "the accused had exclusive possession of the ornaments at least for some time, after the theft, so that they were in position to keep those ornaments at a particular place". While the first sentence connotes "the accused had exclusive possession of the ornaments at least for some time, after the theft, so that they were in position to keep those ornaments at a particular place". However, the second sentence would only imply that "the accused persons somehow acquired the knowledge about the whereabouts" and their case will then come within the dictum of the law laid down by the Supreme Court in para-6 of Trimbak vs. The State of Madhya Pradesh, AIR 1954 SC 39 and the alleged discovery would be regarded as conclusive proof that the accused was ever in possession of those ornaments. The same principle has been reiterated by eminent Judge of this Court Justice B. K. Chaturvedi long back in Bhagirath vs. State, 1958 JLJ 900 . In the present case also, Investigating Officer has simply stated that at the instance of appellants the stolen articles were seized. According to me, by this type of statement the recovery is not at all proved. On the same point I may also refer another decision of the Supreme Court Mujeeb and another vs. State of Kerala, AIR 2000 SC 591 paras-19 and 20. Hence, the recovery of stolen articles from the appellants is not at all proved. 18. So far as the naming of two appellants, namely, Shakir and Pradeep in the FIR is concerned, suffice it to say that it is borne out from the testimony of Lalsingh (PW-8) as well as from the evidence of Ramchandra (PW-1) and Devilal (PW-2) that these two appellants are the friends of Devilal (PW-2) and Devilal took the house of appellant Dinesh's father Raghunandan Soni where these two appellants happens to come frequently. Even otherwise, since the recovery part is not at all proved, I am of the view that all the appellants are entitled for the benefit of doubt. 19. It is also borne out from the testimony of Ramchandra (PW-1) para-9 that before identification of the stolen articles they were shown by the Investigating Officer to him and he did not disclose this face to the officer who conducted the test identification of the stolen articles. 20. 19. It is also borne out from the testimony of Ramchandra (PW-1) para-9 that before identification of the stolen articles they were shown by the Investigating Officer to him and he did not disclose this face to the officer who conducted the test identification of the stolen articles. 20. On account of aforesaid overall assessment of the evidence and the material place on record I am of the view that prosecution has failed to prove the charges under sections 395 and 410, Indian Penal Code against the appellants and they are entitled for the benefit of doubt. It is well settled in law that suspicion, however strong it may be, cannot take place of strict proof. 21. Resultantly, this appeal and connected Criminal Appeals No. 1057/1996 (Ramprasad vs. State of M.P.) and 1068/1996 (Dinesh vs. State of M.P.) are allowed. The impugned judgment of conviction and order of sentence against all the appellants is hereby set aside and they are acquitted from all the charges. All the appellants are on bail their bail bonds are discharged. Amount of fine, if deposited, shall be refunded to the appellants. 22. Let a copy of this judgment be kept in the record of connected Criminal Appeals No. 1057/1996 (Ramprasad vs. State of M. P.) and 1068/1996 (Dinesh vs. State of M. P.)