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Madhya Pradesh High Court · body

2013 DIGILAW 700 (MP)

Abid Khan S/o Shafique Khan v. State of M. P.

2013-06-25

M.C.GARG, N.K.MODY

body2013
JUDGMENT : M.C. Garg, J.:- This common judgment shall dispose of all the aforesaid criminal appeals which are arising out of a common judgment delivered on 21st July, 2010 by the Additional Sessions Judge, Shajapur passed in S.T. no. 80/2008. whereby all the appellants have been convicted under section 395, 307/149 of IPC and have been sentenced to undergo life imprisonment with fine of Rs. 1000/- each; in default of payment of fine, to further undergo R.I for 100 days each and life imprisonment with fine of Rs. 1000/- each; in default of payment of fine, to further undergo R.I for 100 days each respectively both under Sections 395 and 307 IPC. They have also been convicted under sections 482 and 483 of IPC and sentenced to undergo R.I for one year and two years respectively. All the sentences are directed to run concurrently. All the appellants are in judicial custody 2. Brief facts of the prosecution case are that SHO Mr. Khan was posted at police station – Sarangpur. He received an information of dacoity and in order to see the injured he went to Shajapur where a Dehati Nalishi was given by complainant Ramlal Kushwah that he is a resident of Graim Sandawata and he is working as a driver with Pappu Chalya @ Manoj Khandelweal. On 28/11/2007 he along with Manoj Khandelwal in his Tempo Trax bearing registration no. M.P.-09-KB-9977 went to Sarangpur, and at State Bank of Indore, a cheque was deposited by Manoj Khandelwal and also withdrew Rs. 15 lacs and the same was kept in green bag. Thereafter, Majoj Khandelwal sat in the said Jeep next to complainant and the said bag was kept in between both of them. Then, at around 2.30 – 2.45 pm, when the complainant and Manoj reached near Kadlawad, they saw a tyractor-trolley on the side of the road and next to this a Car Maruti 800 was also standing, when the complainant slowed speed of his jeep. Then, at around 2.30 – 2.45 pm, when the complainant and Manoj reached near Kadlawad, they saw a tyractor-trolley on the side of the road and next to this a Car Maruti 800 was also standing, when the complainant slowed speed of his jeep. At that time all of a sudden six unknown boys came out of the said tractor trolly and Maruti 800 and a fire was shot by one of those unknown persons which hurt Manoj, the complainant was asked to stop the Jeep and in order to do so, another fire shot was made and because of which the complainant suffered pallet injury in his both the hands, and those unknown persons snatched the said green gag and ran away towards Sarangpur in a white Maruti 800 car. Thereafter, the physical description of those unknown persons was given by the complainant to the police and it was also disclosed by him that if those persons will be caught the complainant and Manoj can identify them. On the basis of the said information, FIR was lodged as crime no. 709/2007 under section 395 and 307 of IPC. 3. Thereafter, on the basis of the said FIR, investigation was set into motion and during the course of the same, spot map was drawn, injured were sent for the medical examination, statements under section 161 of Cr.P.C of the witnesses were recorded. The appellants/accused persons were arrested. Memorandum under section 27 of IPC was recorded and on the basis of the same looted articles and weapons used at the time of alleged incident were recovered and seized and after completing all the necessary and mandatory formalities, a challan was filed by the respondent for an offences under section 395 read with section 397, 307, 427, 481, 482 and 483 of IPC and under section 25 read with section 27 of the Arms act. 4. The appellants were put to trial and were charged for the offences as aforesaid, but the same was abjured by him and they asked for trial and on this conclusion of the same, they have been convicted and sentenced as aforesaid, which gave rise to the instant appeal. 5. It has been argued on behalf of the appellants that they are entitlted to be acquitted for the grounds that the impugned judgment is contrary to law and facts on record. 5. It has been argued on behalf of the appellants that they are entitlted to be acquitted for the grounds that the impugned judgment is contrary to law and facts on record. The learned trial Court has erred by ignoring the fact that in the instant case the respondent has miserably failed to prove the test identification parade and the pre-cautions and effective measures which are required to be taken at the time of test identifcation parade was also not followed by the respondent. The conviction and the sentence awarded by the learned trial Court for an offences under section 395, 307/149, 482 and 483 of IPC is on a very harsh side. The learned trial Court has erred in lightly brushing aside the material omissions and contradictions appearing in the testimony of the prosecution witnesses. There is no iota of material avaialble in record for which the appellants have been convicted. The learned trial Court has erred in not considering the fact that the investigation has been unfair, unjust and partial The learned trial Court has erred in drawing unwarranted inferences. The impugned judgment is neither legal nor proper. The learned Trial Court has failed to appreciate the defence led by the appellants. 6. It has been argued on behalf of the respondent/State that appellants have rightly been convicted and sentenced by the trial Court and there is no ommissions and contradictions in the testimony of witnesses. The impugned judgment is based upon the material facts and evidence available on record, therefore, the appellants are not entitled to be acquitted from the alleged offences. Consequently, it has been prayed that present appeals be dismissed. 7. We have heard the learned counsel for the appellants as well as the Government Pleader. We have also perused the records of this case and we find that the case of the prosecution is fully supported by PW-2 Ramlal and PW-3 Manoj Khandelwal who were shot at by the appellants, for which separate case was registred against them vide FIR no. 710/2007 wherein they have also been convicted under section 307/34 of IPC. 8. Dehati Nalishi Ex.-P/6 which was recorded on the basis of statement made by Ramlal PW-2 and on the basis of which, the FIR was registered, is as under : XXX XXX XXX 9. The appellants were arrested where they were trying to abscond during the course of investigation. 8. Dehati Nalishi Ex.-P/6 which was recorded on the basis of statement made by Ramlal PW-2 and on the basis of which, the FIR was registered, is as under : XXX XXX XXX 9. The appellants were arrested where they were trying to abscond during the course of investigation. They were also sent for identification parade which was held by Tehsildar Durga Shankar Gandharv PW-11 vide Ex.-P/7 and P/8. In these identifcation parade, the complainant identified the appellants. Recovery of the cash from them is also taken place in presence of Shyam Soni and Manoj vide Ex.-P/9 to Ex.-P/12. This amount was part of the cash which was looted from the complainant by the appellants. 10. The FIR of this case has been registered vide Ex.-P/27 which reads as under : XXX XXX XXX 11. It is clear from the FIR that descreption of all the accused persons were given therein which supports the case of the prosecution to prove the decoity. The trial Court has recorded the testimony of PW-2 Ramlal and PW-3 Manoj Khandelwal. They have fully supported the case of the prosecution. They had seen the accused persons at the time of commission of the crime. They have also identified the accused/appellants at the time of holding of test identification parade. They have also identified the appellants in Court. PW-2 Ramlal has also proved the injuries sustained by him which has been caused to him by fire arm used by the appellants in the process of looting. 12. According to the appellants, FIR recorded in ths case is befeft of any details of identifying or any details of identifying marks of the unknown as has been stated by PW-12 in para-14 of his deposition. Para -14 reads as under : XXX XXX XXX 13. Learned counsel for the respondent/State has submitted that the case is crystal clear. Dehati Nalishi supports the case of the prosecution. Recovery of the cash from the appellants shows that they are involved in the aforesaid crime which proves that they have looted the complainant. They had used fire arms. There is recovery of fire arms from the appellants as is apparent from Ex.-P/9 to Ex.-P/12. 14. Manoj Khandelwal who appeared as PW-3 has deposed as under : XXX XXX XXX 15. His statement is corroborated by PW-2 Ramlal who is injured person. 16. PW-14 Dr. They had used fire arms. There is recovery of fire arms from the appellants as is apparent from Ex.-P/9 to Ex.-P/12. 14. Manoj Khandelwal who appeared as PW-3 has deposed as under : XXX XXX XXX 15. His statement is corroborated by PW-2 Ramlal who is injured person. 16. PW-14 Dr. Z. Iqbal who examined Ramlal PW-2 has proved the injuries vide his report Ex.-P/44. He he has deposed as under : XXX XXX XXX 17. This statement made by Dr. Z. Iqbal proves that the fire arm was used and fire arm injury was caused to Ramlal at the time of the incident. 18. PW-16 Vijay Kumar Soni examined Manoj Khandelwal PW-3 who was also hurt during the incident by using fire arm. About his medical condition, this witness has deposed as under : XXX XXX XXX 19. Ex.- P/23 is the copy of the cheque which was got encashed by the appellants. Ex.- P/44 and Ex.P/45 are the MLC report of Ramlal PW-2 and Manoj Khandelwal PW-3 which also supports the case of the prosecution. There is also seizure of fire arm which were found in working condition. Some of which were used for cuasing injuries upon the complainant. There is FSL report regarding use of the fire arm and they have found fit for the purpose of use. There are also circumstances which proves the involvement of the appellants in this case. 20. Taking all the aforesaid facts into consideration, case under section 395 and 307/149 of IPC is made out. We, therefore, find no infirmity in the impugned judgment of conviction, but we are of the considered view that the sentence of life imprisonment both under sections 395 and 307/149 of IPC is not sustainable. Accordingly, their sentence both under section 395 and 307/149 of IPC is reduced to R.I for ten years, but they are liable to pay fine of Rs. 10,000/- each under section 395 of IPC and a sum of Rs. 5000/- each under section 307/149 of IPC; in default of payment of fine, they will also undergo R.I for six month each and three months each respectively. A copy of this judgment be placed in the file of above mentioned connected appeals. With the aforesaid modification, present criminals are disposed of.