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2013 DIGILAW 351 (MP)

Pankaj Shah v. State Of M. P.

2013-03-14

R.C.MISHRA

body2013
JUDGMENT : These appeals are interlinked as preferred against the judgment dated 19-10-2011 passed by Additional Sessions Judge, Waidhan, District Singrauli in ST. No. 250/2010, whereby appellant Pankaj Shah was convicted and sentenced as under : - Convicted under Section Sentenced to 307 of the Indian Penal Code undergo R.I. for 10 years, and to pay a fine of Rs. 500/-, in default to suffer R.I. for 1 month. 394 of the Indian Penal Code undergo R.I. for 7 years, and to pay a fine of Rs. 500/-, in default to suffer R.I. for 1 month. 3 read with 25(1-A) of the Arms Act, 1959 undergo imprisonment for 3 years, and to pay a fine of Rs. 300/- in default to suffer imprisonment for 1 month. 7 read with 27(2) of the Arms Act undergo imprisonment for 7 years, and to pay a fine of Rs. 500/- in default to suffer imprisonment for 1 month. with the direction that the custodial sentences shall run concurrently. whereas appellant Sunil Kumar Soni was convicted and sentenced as under - Convicted under Section sentenced to 307 of the Indian Penal Code undergo R.I. for 10 years, and to pay a fine of Rs. 500/-, in default to suffer R.I. for 1 month. 394 of the Indian Penal Code undergo R.I. for 7 years, and to pay a fine of Rs. 500/-, in default to suffer R.I. for 1 month. with the direction that the custodial sentences shall run concurrently. 2. Prosecution story, in short, may be narrated thus - (i) On 4-7-2009, after withdrawing an amount of Rs. 30,000/- from his account with Waidhan Branch of Union Bank of India, complainant Dinesh Kumar Verma (P.W.4), who was working as Fitter in the NCL Project at Vindhya Nagar, Singrauli, started for Jayant on a bicycle. As about 1:00 p.m., as he reached near the boundary wall of NCL near village Harrai, two unknown persons, who had covered their faces with Gamchhas, came from behind on a motorcycle and stopped in front of the bicycle to intercept the same. One of them, while giving threat to kill by showing a Katta asked to hand over the money and on being bitten on cheek, fired a shot that landed on Dinesh's right thigh. Immediately thereafter, both the offenders fled away on the motorcycle. One of them, while giving threat to kill by showing a Katta asked to hand over the money and on being bitten on cheek, fired a shot that landed on Dinesh's right thigh. Immediately thereafter, both the offenders fled away on the motorcycle. (ii) Upon the FIR (Ex.P-11) lodged by Dinesh Kumar at the Police Outpost Jayant of P.S. Waidhan, a case under sections 307 and 393 of the Indian Penal Code was registered. Dinesh was immediately sent to Nehru Shatabdi Chikitsalay, Jayant. Dr. Amrit Kumar Tiru (P.W.2), characterizing the thigh injury as gunshot wound, advised X-ray examination and referred the case to Dr. Rajendra Prasad Sahu (P.W.10). Dinesh Kumar remained admitted to the Hospital till 16-7-2009 for treatment of the injury. (iii) During investigation, appellants were apprehended and on 10-7-2009, weapon of offence viz. Katta and the motorcycle used for commission thereof, were recovered from the house of appellant Pankaj. Thereafter, on 12-8-2009, at the Test Identification Parade conducted by B. L. Biharia (P.W.9), the Executive Magistrate, in Sub-jail, Waidhan, Dinesh was able to identify the appellants as the persons involved in the incident. The seized Katta along with underwear and trousers said to have been worn by Dinesh Kumar at the relevant point of time, were forwarded to FSL, Sagar for chemical examination. Corresponding report indicated that the bullet holes found on the clothes could be caused by a shot fired from the seized Katta. 3. The appellants pleaded false implication by the police. 4. Legality and propriety of the impugned convictions have been challenged on the ground of what has been termed as mis-appreciation of the evidence on record. In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence on record, has submitted that the convictions are justified on merits. 5. In the light of the rival contentions, the evidence brought on record may be re-appreciated, for the sake of convenience, under the following sub-heads - (A) VERACITY OF ALLEGATIONS AS RECORDED IN THE FIR 6. Although, complainant Dinesh Kumar (P.W.4) substantially reiterated the recitals in the FIR (Ex.P-11) yet, no documentary evidence to show that he had withdrawn a sum of Rs. 30,000/- from his bank account was tendered. Although, complainant Dinesh Kumar (P.W.4) substantially reiterated the recitals in the FIR (Ex.P-11) yet, no documentary evidence to show that he had withdrawn a sum of Rs. 30,000/- from his bank account was tendered. His assertion that the appellant Pankaj had even tried to take out the money, kept in the back pocket, by putting hand in the side pocket of the trousers also did not find place in the FIR or his case-diary statement (Ex.D-1). Further, his conduct of not shouting for help and moving towards his office on the bicycle after sustaining the gunshot injury on the right thigh even when the miscreants had fled away, was apparently unnatural. Moreover, Mohd. Tariq Farooqui (P.W.3) who, as per the statement of Dinesh, had met him near Abhedya Ashram and on being apprised of the incident, had taken him on his motorcycle to the Police Outpost leaving the bicycle in a nearby hut, has not claimed to have seen the money sought to be looted. However, as per his statement, story narrated by Dinesh Kumar suggested involvement of as many as three persons in the incident. This apart, as the obvious object for the incident was to rob the complainant of money and the injury was allegedly caused upon his refusal to part with the same, the assertion that the miscreants had left the spot leaving the money in the pocket of the complainant, was also improbable. 7. Treating Surgeon Dr. Rajendra Prasad Sahu (P.W.10) clearly admitted that he had not found any bullet or pellets embedded inside thigh injury, characterized by Dr. Amrit Kumar Tiru (P.W.2), who had the first occasion to examine Dinesh Kumar, as the entry wound by cartridge. According to him, in the X-ray examination also, no bony injury was noticed. As no exit wound was noticed, the statement made by Dinesh to the effect that the bullet had passed through and through his right thigh was also incompatible with the medical evidence. 8. Under these circumstances, the prosecution version, as reflected in the FIR, with regard to the origin of the incident and the manner in which it had taken place, was not acceptable. (B) TEST IDENTIFICATION PARADE 9. 8. Under these circumstances, the prosecution version, as reflected in the FIR, with regard to the origin of the incident and the manner in which it had taken place, was not acceptable. (B) TEST IDENTIFICATION PARADE 9. In view of a candid admission made by Dinesh Kumar that both the appellants had already been shown to him in the Hospital where he had remained admitted till 16-7-2009, the so-called test identification conducted by Executive Magistrate B. L Biharia (P.W.8) on 12-8-2009 was of no consequence. Moreover, the assertion made by the Magistrate that he had conducted two different T.I. parades separately also ran contrary to contents of the corresponding Memo (Ex.P-8). 10. Shri A. Usmani, learned counsel appearing for appellant Pankaj, has also tried to highlight the omission, as brought on record in Paragraph 14 of Court Statement of Dinesh with regard to his act of biting Pankaj, who had allegedly caused the gunshot injury, on cheek. However, while allowing the corresponding question, learned trial Judge had overlooked that this fact was clearly reflected in the FIR (Ex.P-11) as well as his case diary statement (Ex.D-1). But, in none of these previous statements, Dinesh had asserted that on being shown, he would be able to identify at least one of the offenders, whose cover on the face had slipped down while being bitten on the cheek. Further, in the Arrest Memo (Ex.P-3), that was prepared on 10-7-2009 i.e. 5 days after the incident in question, no bite mark on Pankaj's cheek was shown. In such a situation, Dinesh's claim that he was able to identify Pankaj on the basis of the teeth mark on the cheek did not inspire confidence. 11. For these reasons, on one hand, evidence of complainant Dinesh as to identification of the appellants at the T.I. parade was totally valueless and on the other, in absence of corresponding details as to their appearance and identities, his sworn testimony suggesting that both the appellants had tried to rob him and in the course of robbery, Pankaj had authored the thigh injury, was not worthy of credence. (C) RECOVERY OF FIREARM AND MOTORCYCLE 12. (C) RECOVERY OF FIREARM AND MOTORCYCLE 12. Manoj Kumar Soni (P.W.13), the Investigating Officer, claimed to have recovered a Yamha motorcycle, a Katta (Article A1) and a cartridge (Article A2) from the house of appellant Pankaj on the basis of information furnished by him only but none of the panch witnesses viz. Abdul Rahim (P.W.1) and Mohd. Yunus (P.W.3) supported the contents of corresponding memo (Ex.P-1) and list of seizure (Ex.P-2). An apparently false denial of the fact that the appellants were shown to Dinesh (P.W.4) in the hospital, as admitted by him and his friend Mohd. Tariq (P.W.5), was sufficient to indicate interestedness of the Investigating Officer in the matter. This apart, since the case of attempt of robbery by using a firearm failed, the prosecution for the offences under the Arms Act also failed (Sumersinh Umedsinh Rajput vs. State of Gujarat, AIR 2008 SC 904 referred to). 13. To sum up, in the light of serious infirmities in the prosecution evidence, the appellants were entitled to benefit of doubt. As such, none of the convictions in question deserves to be affirmed. 14. In the result, the appeals are allowed. The impugned convictions and consequent sentences are hereby set aside. Instead, the appellants are acquitted of the respective offences. The fine amount, if deposited, be refunded. 15. The appellants are in custody. They shall be released forthwith if not required in any other case. 16. A copy of this judgment be retained in the connected appeal.