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Madhya Pradesh High Court · body

2015 DIGILAW 119 (MP)

Gope Singh alias Gope v. State Of M. P.

2015-01-30

N.K.GUPTA

body2015
JUDGMENT : Both the criminal appeals arise from a common judgment of a common trial, therefore instant criminal appeals are decided by the present judgment. 2. The appellants have preferred the aforesaid appeals being aggrieved with the judgment dated 30-4-1997 passed by the third Additional Sessions Judge, Sagar camp at Rehli in ST No. 149/1991 whereby each of the appellant has been convicted of offence under section 395 of Indian Penal Code and sentenced to five years' RI with fine of Rs. 2000/-, in default of payment of fine, additional imprisonment for one year. 3. The prosecution's case, in short, is that the complainant Lilawati (PW-2) was resident of Village Kheri (Police Station Garhakota District Sagar). She was residing in her house along with her daughter Kiran (PW-11), her nephew Bhagwat Singh (PW-3) and Laxmirani (PW-6), wife of Bhagwat Singh. Triveni Bai (PW-1), sister of witness Bhagwat Singh was also residing in Lilawati's house as a guest at the time of incident. In the night of 7/8-4-1989 at about 4:00 AM some culprits entered into the house of Lilawati. Four of them surrounded the victim Triveni Bai (PW-1) and robbed of her silver payal and silver kamarbandh. They also took her ornaments from her box kept in the room. Witnesses Lilawati, Bhagwat Singh etc. had tried to save Triveni Bai, but their rooms were also closed from outside, and therefore they could not help. On the other hand they left the house from backside to save themselves and thereafter the culprits robbed the ornaments of Laxmirani as well as Lilawati kept in the boxes in their respective rooms. Lilawati (PW-2) had lodged a written report (FIR) Ex.P-1 at Police Station Garhakota on 8-4-1989. The case was registered on 23-6-1989. Accused Hari Singh, Kalyan Singh, Gope Singh, Pancham and Rajendra Singh were arrested and on getting their memo under section 27 of the Evidence Act, some of the silver ornaments were recovered from them. The test identification parade was also arranged on 5-8-1989 in which witnesses had identified the appellants and other accused persons. Thereafter other accused persons were arrested from time to time and recovery was made from them. Their test identification parade was also arranged. After due investigation a charge sheet was filed before the concerned Magistrate and the case was committed to the Court of Sessions, and ultimately it was transferred to the third Additional Sessions Judge, Sagar. Thereafter other accused persons were arrested from time to time and recovery was made from them. Their test identification parade was also arranged. After due investigation a charge sheet was filed before the concerned Magistrate and the case was committed to the Court of Sessions, and ultimately it was transferred to the third Additional Sessions Judge, Sagar. 4. The appellants abjured their guilt. They did not take any specific plea, but they have stated that they were falsely implicated in the matter. However, no defence evidence was adduced. 5. The learned Additional Sessions Judge, Sagar after considering the prosecution evidence acquitted the accused Hari Singh, Dhaniram, Kishun, Karan, Laxmi Narayan, Pancham, Narayan Singh, Mardan Singh and Roop Singh, but convicted the appellants for offence under section 395 of Indian Penal Code and sentenced as mentioned above. 6. I have heard the learned counsel for the parties at length. 7. The learned senior counsel for the appellants has pointed out that there was no possibility for the witnesses to identify the culprits and the identification parade memo Ex.P-2 was not duly proved, because the witness who conducted the test identification parade was not examined. In this connection a reliance has been placed upon the judgment passed by the Single Bench of this Court in the case of Suresh vs. State of M. P., 1995(II) MPWN Note 208. It is also submitted that the description of dacoits was not given by the witnesses as no identification mark was informed, no stature of accused is given whether they were fat or thin or of fair colour or dark in colour. On the contrary some of the witnesses have accepted that the culprits had closed their mouths by cloths, and therefore the identification of such accused persons is highly doubtful. Reliance has been placed on the judgment of Hon'ble the Apex Court in the case Wakil Singh vs. State of Bihar, AIR 1981 SC 1392 . It is also submitted that the test identification parade was arranged after a gap of 2 ½ months, and therefore the same loses its evidentiary value. In this respect, reliance has been placed on the judgment of Hon'ble the Apex Court in the case of Musheer Khan @ Badshah Khan vs. State of M. P., AIR 2010 SC 762 . It is also submitted that the test identification parade was arranged after a gap of 2 ½ months, and therefore the same loses its evidentiary value. In this respect, reliance has been placed on the judgment of Hon'ble the Apex Court in the case of Musheer Khan @ Badshah Khan vs. State of M. P., AIR 2010 SC 762 . It is also submitted that the ornaments shown to be recovered from the appellants are of common nature and no identification mark was shown by the witnesses, therefore identification of ornaments is of no importance. Hence, the Additional Sessions Judge has committed an error in convicting the appellants. 8. After considering the submissions made by the learned senior counsel for the appellants, if the evidence of the case is examined, then it would be apparent that in the FIR Ex.P-1 a suspicion is created by witness Lilawati (PW-2) that one of the culprits was similar to her brother-in-law Raju and one culprit was similar to her son Guddu. Hence the case is dependent upon the test identification parade arranged by the Naib Tahsildar concerned against the appellants and identification of the appellants done by the witnesses. The case is also dependent upon the recovery of ornaments and their identification. First of all if the identification memo Ex.P-2 is examined, then it would be apparent that the concerned Naib Tahsildar-cum-Executive Magistrate was not examined before the trial Court. In the light of the judgment of the Single Bench of this Court in the case of Suresh (supra), such conduction of identification parade comes in the cloud of doubt. It is possible that the Executive Magistrate who was transferred to a distant place could not be called for his examination, and therefore the memo relating to identification parade cannot be discarded only by the reason that the person who conducted the test identification parade was not examined. However, if the memo Ex.P-2 is considered, then in that memo it is mentioned that Lilawati identified the appellant Rajendra Singh and Kalyan Singh. Kiran could not identify any of the appellants. Triveni Bai had identified Kalyan Singh, Gope Singh and Rajendra Singh, whereas Bhagwat Singh could not identify any of the appellants. In the memo it is also mentioned that 54 persons were mixed for the identification of these appellants along with other six accused persons. Kiran could not identify any of the appellants. Triveni Bai had identified Kalyan Singh, Gope Singh and Rajendra Singh, whereas Bhagwat Singh could not identify any of the appellants. In the memo it is also mentioned that 54 persons were mixed for the identification of these appellants along with other six accused persons. However, no description is given in the memo Ex.P-2 about those 54 persons, who were mixed with the appellants. Under such circumstances, an explanation was required from the person, who conducted the test identification parade that whether stature of the persons mixed in the line of the identification was similar to the appellants or not. Age group of the accused persons was different. Some of the accused were in age group of 25-30 years and some of them were in age group of 35-40 years, and therefore it was to be shown that the persons who were mixed with the appellants during the identification had similarity in their faces and appearance. However, such questions could not be asked to the Executive Magistrate-cum-Naib Tahsildar, because he was not examined. Hence in the light of order passed by the Single Bench of this Court in the case of Suresh (supra), the identification memo Ex.P-2 inspires no confidence and by such identification the appellants could not be held guilty of the alleged offence. 9. Also it would be apparent that the appellants are the persons, who surrounded Triveni Bai and removed her silver payal and kamarbandh. In this context Triveni Bai (PW-1) has accepted that there was no arrangement of light in the room and the incident took place at 4:00 A.M. in the night. She claimed that she saw the faces of the appellants in the light of torch held by Rajendra Singh. If the robbery was done in the light of torch, then it was not possible for the culprits to flash light on the faces of the culprits. Triveni Bai has accepted that light of the torch was flashed on her face and leg from where her payal was removed. It is also stated by Triveni Bai that the torch was kept by the appellant Rajendra Singh. Under such circumstances, a person who carried a torch could not flash light on his own face unnecessarily, and therefore identification of Rajendra Singh was not possible by Triveni Bai or other witnesses. 10. It is also stated by Triveni Bai that the torch was kept by the appellant Rajendra Singh. Under such circumstances, a person who carried a torch could not flash light on his own face unnecessarily, and therefore identification of Rajendra Singh was not possible by Triveni Bai or other witnesses. 10. Bhagwat Singh (PW-3) and Laxmi Rani (PW-6) have claimed that they saw the culprits from a gap in the wooden strip of the gate between their room and room of Triveni Bai, but in such a gap in the absence of appropriate light, it was not possible for them to see the culprits. It should be noted that except Triveni Bai, no other witness could identify the appellant Gope Singh. Similarly, when torch was held by Rajendra Singh, there could no possibility of light on the face of Rajendra Singh so that he could be identified. Similarly, Lilawati has stated that she and her daughter saw the culprits from a distance of 15 ft. Lilawati has accepted that thereafter she left the house and left her daughter Kiran to the house of one Arjun. Under such circumstances, when Lilawati was interested to save her daughter Kiran, it was not possible for her to remain standing in Dehlan in front of Triveni's room for a longer period to identify the culprits. 11. Also witnesses Kiran (PW-11) and Laxmi (PW-6) have accepted that all the culprits had closed their faces by cloths. Under such circumstances, it was impossible for the witnesses to identify the actual culprit in the test identification parade. In this connection the FIR Ex.P-1 is an important piece of evidence with the fact that the complainant Lilawati had shown her suspicion upon her brother-in-law Raju and her son Guddu, who were residing with her divorced husband. If any of the witnesses would have identified the culprits in the light of the torch, then they would have known that the culprits were not Raju and Guddu, and therefore there was no possibility for the complainant to show a suspicion on her brother-in-law Raju and Guddu. The suspicion shown in the FIR Ex.P-1 indicates that none of the witnesses could identify and see the faces of the culprits, and therefore identification of the appellants in the test identification parade appears to be doubtful. 12. Also these appellants were arrested on 23-6-1989 and the test identification parade was arranged on 5-8-1989. The suspicion shown in the FIR Ex.P-1 indicates that none of the witnesses could identify and see the faces of the culprits, and therefore identification of the appellants in the test identification parade appears to be doubtful. 12. Also these appellants were arrested on 23-6-1989 and the test identification parade was arranged on 5-8-1989. There is no reason shown by the Investigation Officer Ashok Bhardwaj (PW-7) as to why the test identification parade was not arranged within the reasonable period. Hence in the light of the judgment of Hon'ble the Apex Court in the case of Musheer Khan (supra), the evidentiary value of the test identification parade goes away. 13. Also the witnesses did not give any evidence relating to identification mark or stature of the accused persons as to whether they were fat or thin or were fair or dark in complexion. In the dark night, only by the light of torch held by one culprit, such stature could not be observed by the witnesses. The witnesses have claimed that when the culprits were going from their house and the witnesses had hidden near a well, then they saw the culprits. However, such claim was not made in their case diary statements, and therefore such claim is nothing, but an after thought. Hence when the witnesses could not observe the stature of the culprits, then there was no basis for them to identify the culprits. 14. On the basis of the aforesaid discussion, it would be apparent that the witnesses Lilawati, Bhagwat Singh, Kiran and Laxmi Rani had no opportunity to see the appellants and the appellants were with Triveni Bai in her room when other witnesses left the spot. Witness Triveni Bai could not identify the culprits because they had covered their faces by cloths and also one of the culprits had a torch and there was no other source of light available in the room at the time of incident which took place in the night. Hence it was not possible for Triveni Bai to see the faces of the culprits because it was not necessary for the culprits to flash the torch on their own faces. Hence it was not possible for Triveni Bai to see the faces of the culprits because it was not necessary for the culprits to flash the torch on their own faces. Under such circumstances, when the person who conducted the test identification parade is not examined, the description of persons, who were mixed in the test identification parade was not given in the document Ex.P-2 and the test identification parade was arranged after 2½ months, the memo relating to test identification parade Ex.P-2 is doubtful and it is not proved beyond doubt that the appellants were duly identified by the witnesses either in the test identification parade or in the dock. 15. It is alleged that the robbed property was recovered from the appellants. The robbed property was also recovered from the various accused persons from time to time. According to the documents Ex.P-4 to Ex.P-12, the various ornaments were recovered from the appellants Kalyan Singh and Gope Singh on 23-6-1989, whereas various ornaments were recovered from appellant Rajendra Singh on 2-7-1989. witnesses Prem Singh (PW-4) and Shyam Sundar (PW-5) relating to memo under section 27 of the Evidence Act and consequential recovery from Kalyan Singh and Gope Singh have turned hostile. If the independent witnesses are turned hostile, then certainly the testimony of the Investigation Officer is to be considered with caution. The Investigation Officer had an interest in his case, and therefore he could show recovery of various ornaments from the appellants. In relation to seizure memo Ex.P-8 and Ex.P-11 in respect to Kalyan Singh and Gope Singh, the testimony of the Investigation Officer Ashok Bhardwaj comes in the cloud of doubt, because both the independent witnesses Prem Singh and Shyam Sundar have accepted that they were sitting in the hotel in front of the police station by way of their daily routine and they were taken as witnesses in so many cases. The statements of these witnesses indicate that those were pocket witnesses of the police. Sub Inspector Ashok Bhardwaj did not take any independent witness, hence he was not fair in recovery. Consequently, his testimony also comes in the cloud of doubt, and therefore it was not proved beyond doubt that any ornament was recovered from either Gope Singh or Kalyan Singh. Sub Inspector Ashok Bhardwaj did not take any independent witness, hence he was not fair in recovery. Consequently, his testimony also comes in the cloud of doubt, and therefore it was not proved beyond doubt that any ornament was recovered from either Gope Singh or Kalyan Singh. Similarly, Murari (PW-9) and Veer Singh (PW-10) witnesses of document Ex.P-26 a seizure memo of recovery of ornaments from the appellant Rajendra Singh have turned hostile. The seizure was done by the Sub Inspector Ashok Bhardwaj, whose interestedness is considered while considering the genuineness of the seizure memo Ex.P-8 and P-11. Hence the testimony of Ashok Bhardwaj cannot be believed when the independent witnesses have turned hostile, and therefore it was not proved beyond doubt that any ornament was recovered from the appellant Rajendra Singh. 16. So far as the identification of ornaments is concerned, by the document Ex.P-17 one payal was identified by witnesses Lilawati, Kiran, Laxmi Rani, Bhagwat Singh that payal was of Laxmi Rani. However, it is not shown by the police as to whether the silver payal which was allegedly identified by the witnesses was recovered from whom. It appears that the payal which was shown to the witnesses by Tahsildar concerned, was recovered from accused Hari Singh, who is acquitted by the trial Court, and therefore the identification memo Ex.P-17 is not relevant to the present appellants. The document Ex.P-18 is also proved by various witnesses that they identified their ornaments before the Tahsildar. In the document Ex.P-18, 16 silver ornaments were identified by various witnesses. If the document Ex.P-18 is perused, then it would be apparent that the Tahsildar did not mention in the memo that similar ornaments were mixed with the silver ornaments which were identified. The ornaments were stolen from the boxes of Lilawati, Triveni Bai and Laxmi Rani, and therefore Lilawati, Laxmi Rani and Triveni Bai would have identified these ornaments with specification that out of Item No. 1 to 16 which was of Triveni Bai, which was of Lilawati or which was of Laxmi Rani. The items shown in the document Ex.P-18 are the ornaments of such nature which were the ordinary silver ornaments being used by the women villagers in common, and therefore when no other ornaments were mixed in the ornaments kept for identification, it was easy for the witnesses to claim and identify the various ornaments. The items shown in the document Ex.P-18 are the ornaments of such nature which were the ordinary silver ornaments being used by the women villagers in common, and therefore when no other ornaments were mixed in the ornaments kept for identification, it was easy for the witnesses to claim and identify the various ornaments. Since the person who conducted the identification proceeding of ornaments was not examined before the trial Court to show as to why he did no mix other ornaments, the evidentiary value of the identification proceeding as depicted in the Ex.P-18 goes away. Also hostile witness Shyam Sundar (PW-5) has stated that when he signed the document Ex.P-4 to P-15, witnesses Triveni Bai and Lilawati were present at the police station. No challenge was given by the prosecution to that statement given by Shaym Sundar (PW-5). Hence it is also established that the witnesses have already seen all the ornaments at the time of seizure and identification of ornaments becomes doubtful and it is not proved beyond doubt by the prosecution that the alleged ornaments were recovered from the appellants or those were of Triveni Bai, Lilawati or Laxmi Rani. 17. When there was no named FIR against the appellants, their identification proceeding was also doubtful. The presumption under section 114-A of the Evidence Act can be drawn if any robbed property is recovered from the culprits. But unfortunately the prosecution could not prove beyond doubt that any ornament was recovered from any of the appellants or those ornaments were of the victims. Hence there is no basis to draw any presumption under section 114-A of the Evidence Act against the appellants. Therefore, there was no reason to convict the appellants of offence under section 395 of Indian Penal Code or any inferior offence for similar nature. 18. It is also important to note that in the FIR Ex.P-1 a report of theft was lodged with the allegation that four persons were entered in the house and robbed the ornaments. It is strange that the police has implicated as many as 12 accused persons in the case, but the trial Court acquitted nine of the accused persons in the case. It is strange that the police has implicated as many as 12 accused persons in the case, but the trial Court acquitted nine of the accused persons in the case. The witnesses have claimed that they saw 12 persons in all, when they were going back and passing through a road near to a well where witnesses could see them, but if the witnesses would have seen 12 persons, then such fact would have been mentioned in the FIR Ex.P-1, thus it concludes that the robbery was caused by only four persons. An accused can be convicted of offence under section 395 of Indian Penal Code, when it is a case of dacoity done by five or more persons. In the present case, it could not be proved beyond doubt that five or more persons were involved in the crime, therefore the appellants could not be convicted of the offence under section 395 of Indian Penal Code. They could be convicted of offence under section 392 of Indian Penal Code if their guilt was found to be proved by the trial Court. 19. On the basis of the aforesaid discussion, there was no named FIR against the appellants. It was not proved beyond doubt that they were identified by the witnesses in the test identification parade. On the contrary, it appears that the witnesses were not in position to view the faces of the culprits at the time of incident. It is not proved beyond doubt that any robbed property was found recovered from the appellants, and therefore the appellants could not be held guilty of offence under section 395 of Indian Penal Code or any inferior offence of similar nature. Under these circumstances, both the criminal appeals filed by the appellants are hereby allowed. Their conviction as well as sentence imposed by the trial Court of the offence under section 395 of Indian Penal Code are hereby set aside. They are acquitted from all the charges appended against them. 20. At present appellants are on bail, and therefore their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. 21. A copy of this judgment be sent to the concerned trial Court with its record for information.