Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 673 (MP)

Bathia v. State of M. P.

2012-07-05

P.K.JAISWAL

body2012
JUDGMENT P.K. Jaiswal.J.-- 1. This appeal under section 374 of Cr. P.C. is directed against the judgment and order dated 25.9.1997, passed by the First Additional Sessions Judge, Barwani (West Nimar), whereby convicted the appellant under sections 304(I) and 394 of IPC and sentenced him to undergo RI for 3 years and 2 years respectively with fine of Rs. 500/-; in each default of payment of fine to undergo additional SI for one month. He has further been convicted under section 397 of IPC and sentenced to 7 years RI. 2. According to the prosecution, on 22.6.1996 at about 8.30 p.m. in the night when Bhagwan S/o Nabu (PW3) and Mohan S/o Rukhdu were returning to their village on a motorcycle and when they reached in between Dawana - Lakhangaon, where the accused persons kept telephone wires on the road and tied the same between the two corners of the road, due to which their motorcycle was unbalanced and they fell from the motorcycle. At that time three persons who were armed with lathi and knife came there and tied the hands and legs of Bhagwan (PW3) and Mohan, who was a pilion rider on the said motorcycle, and taken them to the agriculture field. They also tied their mouth. Thereafter, they saw that a yellow light police Bullet was going from Lakhangaon approach road to Thikri side. On being seen this the accused persons ran away from the place of occurrence. 3. Bhagwan (PW3) somehow un-tied his hands and legs and, thereafter, when he un-tied the hands and legs of Mohan (PW2), he found him dead. PW3 came to Dawana and narrated the incident to Manakchand (PW1) and Mahesh Tiwari. On 22.6.96 at 3 a.m. in the morning the report (Ex.P/2) was lodged by PW3. The appellant was arrested on 1.7.96. The matter was investigated by SHO police station Thikri where the offence was registered and after completion of the investigation charge sheet was filed against the appellant before the Judicial Magistrate First Class, Anjad for an offence punishable under sections 302, 394 and 397 of IPC, who in turn committed the case before the trial Court. On 30th November, 1996 charge was framed under sections 302 and 394 read with section 397 of the IPC. Accused abjured the guilt and claimed trial. 4. During trial, total 7 witnesses were examined by the prosecution. On 30th November, 1996 charge was framed under sections 302 and 394 read with section 397 of the IPC. Accused abjured the guilt and claimed trial. 4. During trial, total 7 witnesses were examined by the prosecution. The accused was also examined under section 313 Cr. P.C. The trial Court, after considering their evidence, convicted appellant under sections 304(I), 394 and 397 of IPC and sentenced him as aforenoted. 5. Learned counsel for the appellant drew my attention to the FIR (Ex.P/2) lodged by PW3 and submitted that no description of decoity were given in the said FIR. 6. PW3 in paragraph 2 of his Court statement has deposed that their hands were tied by three persons, out of which one person was near to him while other two persons were towards road side. This witness in paragraph 4 has deposed that when he fell down from the motorcycle he became unconscious and, thereafter, at 11.30 in the night all the three persons left the place of occurrence. This witness in paragraph 10 of his statement has desposed that out of three decoits one was sitting near to him for a period of 2.30 hours and, therefore, he identified the said person. He was of short height. Test Identification (TI) parade was conducted after 2-3 months of the incident by Tehsildar Anokhilal (PW6). Ex. P/6 is the TI parade memo, which is of 25.7.96. As per paragraph 20 of his cross examination when he fell down and became unconscious, after 5-7 minutes he saw three persons and he also found that he was not having his wrist watch, diary and cash amount of Rs.40/-. In paragraph 21 he also admitted that when accused was arrested by the police he was taken to the spot and at that time for the first time he saw the accused there i.e., at the place of occurrence and there only the police told that he is accusded Bathia. In this paragraph this witness very specifically admitted that after the incident for the first time he saw the accused at the place of occurrence and, thereafter, he saw the accused in jail and now he is seeing him in the Court at the time of recording of his court statement. In paragraph 20 he has deposed that at the time of incident there was sufficient moonlight and in the moonlight he saw the accused. 7. In paragraph 20 he has deposed that at the time of incident there was sufficient moonlight and in the moonlight he saw the accused. 7. On the basis of admission made by PW3 in paragraph 21 of his statement it is submitted that no proper identification parade was conducted and no conviction can be based on the basis of such identification parade. The plea of the appellant is that he was shown to PW3 after his arrest when he was taken to the place of occurrence before test identification. This plea finds support from the evidence of Bhagwan (PW3). This witness in paragraphs 20 and 21 of his cross examination very specifically admitted that the accused Bhatia was brought by the policy party at the place of occurrence before identification. 8. In view of the above, the test identification becomes suspicious. This view has supported by the M.P. High Court in the case of Rupsingh and another v/s State of M.P. (1978 MPWN, 63) and decision of the Apex Court in the case of Budhsen and another v/s State of U.P. ( AIR 1970 SC 1321 ), wherein the Apex Court has held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to identify of the accused who are strangesrs to them, in the form of earlier identification proceeding. 9. The Apex Court in the case of State of AP v/s Sayyaad Siraj Mohammad and others, reported in 2009 (III) MPWN 107 has held that accused shown to witness in jail before conducting identification parade, there remains no purpose in holding test identification parade. Such type of identification parade has no value in the eye of law. 10. The next contention raised by the learned counsel for the appellant is that the seizure and identification of article was not proper. In support of his said contention he drew my attention to the FIR (Ex.P/2), seizure memo (Ex.P/11) and the statements of PW3. Such type of identification parade has no value in the eye of law. 10. The next contention raised by the learned counsel for the appellant is that the seizure and identification of article was not proper. In support of his said contention he drew my attention to the FIR (Ex.P/2), seizure memo (Ex.P/11) and the statements of PW3. As per paragraph 9 of the statement of PW3 he for the first time in the Court deposed about the diary, whereas in his FIR he has stated that the accused persons looted his wrist watch and R.40/-. As per seizure memo (Ex. P/11) Rs. 40/- and one green diary was seized from the possession of the present appellant. Article 3 is the diary. Ex.P/7 is page of some other diary. The appellant in his statement has very categorically stated that he was in habit of writing diary in respect of details of notes and Ex.P/7 is page of some other diary. 11. In view of the above, it cannot be said that the seizure and identification of article was not proper. The trial Court considered this question in its impugned judgment and on due consideration of the reasonings assigned by the trial Court I am of the considered view that the trial Court has not committed any legal error in giving finding against the appellant. 12. Lastly, it is submitted by the learned counsel of the appellant that he was arrested on 7.7.96 and was in custody till 15.7.98 and he had completed total sentence of 2 years and 14 days, as regards sentence, a lenient view may be taken in this appeal. It is also submitted that no injury was caused by the appellant to anyone and the time of occurrence he was armed with bamboo stick/lathi, which is not a deadly weapon. There is no case that the accused inflicted grievous hurt or attempted to inflict grievous hurt to PW3 and the deceased. 13. Considering the over-all circumstances, I am of the opinion that the appellant deserves lenient treatment. In that, I have considered that 16 years have already elapsed since offence took place and the accused is suffering for all those 16 years. 13. Considering the over-all circumstances, I am of the opinion that the appellant deserves lenient treatment. In that, I have considered that 16 years have already elapsed since offence took place and the accused is suffering for all those 16 years. In that view of the matter I reduce the sentence which has been awarded by the trial Court under sections 304(I) and 397 of the IPC to the period already undergone by enhancing fine amount to the extent of Rs. 10,000/- under section 304(I) of the IPC. On depositing the fine amount within a period of 8 weeks from today his bail bonds shall stand discharged. Failure to deposit the enhanced fine amount the appellant shall undergo further RI for one year. 14. With the aforesaid modification in sentence this appeal stands partly allowed.