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2017 DIGILAW 576 (CHH)

Anil Panda v. State of C. G.

2017-09-22

SHARAD KUMAR GUPTA, T.B.RADHAKRISHNAN

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JUDGMENT : Sharad Kumar Gupta, J. 1. In this Criminal Appeal the challenge levied is to the judgment of conviction and order of sentence passed by the Eighth Additional Sessions Judge (FTC), Durg on 28.12.2004 in Sessions Trial No. 252/2001 whereby and whereunder the appellant was convicted for the offences punishable under Section 364A/34 of the Indian Penal Code (hereafter called as 'IPC') and sentenced to undergo imprisonment for life and fine Rs. 2000/- with default stipulation and under Section 25(1)(a) of the Arms Act, rigorous imprisonment for three years and fine of Rs. 1000/- with default stipulation. In brief, the unfolded prosecution story is that on 18.03.2001, the complainant Dr. Girdhari Lal Bajaj was returning back from Durg to Amrawati along with his friend Chandi Ram Bhavrani and driver Udhdhav in his own Ford car No. MH/27/H/0990. Near about 11 - 11:15 am, when they crossed village Tumdibod, a Maruti car bearing registration No. MP/04/J/4227 came there and stopped in front of their vehicle. Six miscreants alighted from that Maruti car and surrounded the complainant's car. Ultimately, three miscreants by complainant's Ford car had gone towards Bhilai-Durg road and four miscreants captured the complainant and took him towards Bilaspur road in that Maruti car. Complainant's partner Gyanchand Agrawal received the information by 10 pm on the very same day that the complainant has not reached his house at Amrawati. Soon after Gyanchand Agrawal received telephonic calls in his mobile No. 98271-47701 from mobile number 98271-93568 and also from 98271-95415 demanding Rs. 10,00,000/- as ransom at the place between Shivnath River and Anjora. Gyanchand Agrawal told the telephone caller that he is coming along with the said ransom in his vehicle No. MP/24/H/4995. He also intimated the alleged incident to his friend Manoj Agrawal. Then, Gyanchand Agrawal lodged the FIR Ex. P/8 on 19.03.2001 by 00:40 hours at Police Station, Durg. The police officials made a plan to nab the miscreants red-handed. Gyanchand Agrawal collected original notes of Rs. 7880/- and bundled them with plain papers so as to give it an appearance of Rs. 10,00,000/-. Then police parties, Gyanchand Agrawal and Manoj Agrawal proceeded in accordance with action plan. 2. Gyanchand Agrawal and Manoj Agrawal reached near Anjora by 02 to 02:15 pm on his said car. The car of the complainant came near them and they handed over the bag containing cash to the miscreants. 10,00,000/-. Then police parties, Gyanchand Agrawal and Manoj Agrawal proceeded in accordance with action plan. 2. Gyanchand Agrawal and Manoj Agrawal reached near Anjora by 02 to 02:15 pm on his said car. The car of the complainant came near them and they handed over the bag containing cash to the miscreants. Soon after, one police party comprising of CSP, Ajad Shatru Bahadur Singh, TI Ravindra Upadhyay, SI Mohd Ismail Khan, Head Constables Chihtamani, Rukhman Raman Singh, Dayashankar Pandey, Constables Puran Lal Sinha, Satyanarya Pathak, Amrit Lal Jaiswal reached near Changori-Birejhar road and chased the complainant's said car. After the encounter, they found the three miscreants were present in the said Maruti car namely Subhash Singh, Sokh @ Sukhbindar Singh and Satish Chandrakar. During the grappling, the miscreant Sokh @ Sukhbindar Singh received a bullet injury. S.H.O. Ravindra Upadhyay seized one automatic spring knife, one mobile phone bearing SIM No. 98271-93598, Rs. 2243.50/- from the miscreant Subhash Singh vide Ex. P/21. He also recorded memorandum statement (Ex. P/11) of Subhash Singh. He seized one country made pistol, one empty cartridge from Sokh @ Sukhbindar Singh vide Ex. P/20. He also seized one green bag containing Rs. 7850/-, one live cartridge from accused Satish Chandrakar vide Ex. P/22. S.I. Jagdish Uikey seized one Ford make car and some other articles from the spot vide Ex. P/19 and also seized empty cartridges, one knife and three welding rods from the said Ford car vide Ex. P/18. 3. Another police party proceeded on Raipur-Bilaspur road and near village Charoda, they saw the said Maruti car and surrounded it. In that Maruti car they found four miscreants and the complainant. One miscreant, Sanjay Mohle fled away from the spot. S.I., S.P. Shukla recovered the complainant from the miscreant Anil Panda vide recovery memo Ex. P/3. He also seized a country made pistol, two live cartridges and other 15 articles from Anil Panda vide Ex. P/4. He seized a mobile phone from the miscreant Parwez Kuraishi vide Ex. P/5. He seized STD computer slip (Ex. P/6A) from Rahmad Khan vide Ex. P/6. Sanction for the prosecution under the Arms Act was obtained from District Magistrate, Durg vide Ex. P/17. A test identification parade was conducted vide Ex. P/1. Sokh @ Sukhbhindar Singh died soon due to the bullet injury. P/5. He seized STD computer slip (Ex. P/6A) from Rahmad Khan vide Ex. P/6. Sanction for the prosecution under the Arms Act was obtained from District Magistrate, Durg vide Ex. P/17. A test identification parade was conducted vide Ex. P/1. Sokh @ Sukhbhindar Singh died soon due to the bullet injury. After completion of the investigation, a charge-sheet was filed against seven accused namely Satish Chandrakar, Parwez Kuraishi, Ashok Singh, Sanjay @ Sanju, Anil Panda, Subhash Singh and Sanjay Mohle. Out of these, two accused Sanjay Mohle and Anil Panda were declared absconded. During the trial and before the framing of charge, accused Subhash Singh died. In first round of trial, accused Satish Chandrakar, Parwez Kuraishi, Ashok Singh and Sanjay @ Sanju faced the trial. The trial Court acquitted the accused Ashok Singh, Parwez Kuraishi, and Sanjay @ Sanju from the charge under Section 364A of the Indian Penal Code and accused Ashok Singh under Sections 25 and 27 of the Arms Act. The trial Court also acquitted above mentioned all the four accused from Section 365 of the IPC. The trial Court only convicted the accused Satish Chandrakar under Section 364A read with Section 34 IPC. 4. Accused Anil Panda subsequently appeared before the trial Court on 23.06.2004 and the second round of trial began against him. Charges under Sections 364A/34, 365/34 IPC and under Sections 25, 27 of the Arms Act were framed against him. He abjured the allegations and faced the trial. To bring home the charges, the prosecution re-examined PW/1-Satyanarayan, PW/4-Kaushal, PW/5-Budhram Verma, PW/6-Rahmat Khan, PW/7-S.P Shukla, PW/8-Manoj Agrawal, PW/10-Mohd. Ismail Khan, PW/11-Mahendra Pal, PW/12-Ravindra Upadhyay, and examined PW/15-Jagdish Uikey, PW/16-Amrit Lal Jaiswal, PW/17-Rukhman Raman Singh, PW/18- Dayashankar Pandey. Accused Anil Panda did not examine any person in his defence. The trial Court, after conclusion of the trial, acquitted accused Anil Panda under Section 365/34 IPC and Section 27 of the Arms Act, but convicted him under Section 364A/34 IPC and sentenced him to undergo imprisonment for life and fine Rs. 2000/- with default stipulation. He was also convicted under Section 25(1)(a) of the Arms Act and sentenced to undergo rigorous imprisonment for three years and Rs. 1000/- fine with default stipulation. Being aggrieved with that judgment of conviction and order of sentence, the appellant preferred this appeal. 5. In brief, the appellant's case is that the statements of PW/7-S.P. Shukla, PW/10-Mohd. He was also convicted under Section 25(1)(a) of the Arms Act and sentenced to undergo rigorous imprisonment for three years and Rs. 1000/- fine with default stipulation. Being aggrieved with that judgment of conviction and order of sentence, the appellant preferred this appeal. 5. In brief, the appellant's case is that the statements of PW/7-S.P. Shukla, PW/10-Mohd. Ismail, PW/17-Rukhman Raman Pratap Singh and PW/18- Dayashankar Pandey do not inspire confidence. The prosecution has failed to make out any case against the appellant. The trial Court erred in convicting and sentencing him as aforesaid. 6. Shri Adil Minhaz, Advocate argued that there is no clinching evidence available on record on the basis of which conviction of the appellant may be formed. The prosecution has failed to prove any case against the appellant. The evidence which has been recorded in absence of the appellant could not be read against him. 7. Shri U.N.S. Deo, Government Advocate for the State supported the above mentioned conviction and sentence of the appellant and pointed out that there is material available on the record which is sufficient for laying foundation of the conviction and sentence against the appellant. 8. Provision of Section 244(1) Cr.P.C. is noticeable in this case, which reads as under:-- "244. Evidence for prosecution- (1) when, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution." 9. It would be pertinent to refer the provisions of Section 273 Cr.P.C. to resolve the issue in this case, which is extracted below:- "273. Evidence to be taken in presence of accused- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader." 10. The provisions of Section 299(1) Cr.P.C. also has a great importance, which states as follows:- "299. The provisions of Section 299(1) Cr.P.C. also has a great importance, which states as follows:- "299. Record of evidence in absence of accused- (1) if it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (or commit for trial), such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable." 11. Shri Adil Minhaz, Advocate relied on Sukanraj v. State of Rajasthan, 1967 AIR (Raj) 267. Para-5 of the said judgment is extracted here below:- "5. Section 353 Cr.P.C. provides that "except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader." It is urged by learned Deputy Government Advocate that the copies were made out in the presence of the accused but in my opinion mere physical presence of the accused is not necessary. He must be given all opportunities to defend himself by testing the veracity of the witness through the process of cross examination. There is nothing on the record to show that opportunity was afforded to the accused to cross-examine the witnesses when the copies of their statements were taken from one case to another. In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. Even if it is assumed for the sake of argument that the accused had given his consent to the adoption of such a novel procedure such a consent, in my opinion, cannot give any legal sanctity to this type of evidence which has been brought on record in clear violation of the mandatory provision of the law. It is a well established rule of law that neither the accused nor his counsel can validate by giving his consent anything which is not authorised by law. The procedure adopted by the trial Court to bring the evidence on record is clearly in derogation to the express provision of the law and therefore, it is difficult for me to accept the contention of learned Deputy Government Advocate that the defect is curable as no prejudice has been caused to the accused. In my opinion the provisions of Section 537 of that Code of Criminal Procedure cannot be attracted to cure a defect of procedure which infringes the mandatory requirement of the Code. This violation is clearly an illegality and not an irregularity. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality." 12. Shri Adil Minhaz, Advocate further relied on Banchhanidhi Singh Alias Nani Singh v. State of Orissa, 1990 Cr.L.J. 397 wherein, in Para-5 the learned High Court of Orissa has observed as under:-- "The above quoted provisions of Section 273 would show that the evidence of witnesses has to be recorded in the presence of the accused or when his personal attendance has been dispensed with, in the presence of his pleader. On 16-7-1983, the date when PWs 1, 2 and 3 were examined, the personal attendance of the accused was dispensed with, but then when PWs 1, 2 and 3 were examined by the prosecution and their chief examination was being recorded, even the lawyer for the accused was not present in court. On 16-7-1983, the date when PWs 1, 2 and 3 were examined, the personal attendance of the accused was dispensed with, but then when PWs 1, 2 and 3 were examined by the prosecution and their chief examination was being recorded, even the lawyer for the accused was not present in court. As the personal attendance of the accused-petitioner has been dispensed with, when the lawyer for the accused also was not present in the court at the time when the witnesses were to be examined, the court should have adjourned the case on that day to some other date, instead of proceeding with the examination of the prosecution witnesses and should have directed the accused to be present on that adjourned date. The examination of PWs 1, 2 and 3 in the absence of the accused, and when the lawyer representing him was also not present in the court, is in gross violation of the mandatory provisions of Section 273, Cr.P.C. and on that score alone the entire trial is vitiated." 13. Shri Adil Minhaz, Advocate further placed reliance on Balkishan v. State of Rajasthan 1997 Law Suit(Raj) 104 wherein the High Court of Rajasthan has laid down the judicial precedent that neither prosecution nor accused had right to enter into agreement regarding use of statement contrary to provision of law. Parties cannot, by any agreement between them, defeat any provision of law or render any provisions of law redundant. Trial of the accused person in accordance with the procedure established by law is absolutely necessary in view of Article 21 of the Constitution. Therefore, neither the prosecution nor the accused had any right to make any agreement which was contrary to the express provisions of law. Since the statement of Sumer Singh (PW-1) recorded before the appearance of the accused -- petitioner Bal Kishan in Court is not admissible against Bal Kishan, the charge which was framed against the accused-petitioner Bal Kishan cannot be maintained. 14. Shri Adil Minhaz, Advocate also relied on Mithulal And Another v. The State of Madhya Pradesh, AIR 1975 SC 149 wherein the Hon'ble Supreme Court has laid down the judicial precedent that it is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case, though it may be a cross-case, cannot be taken into account in arriving at the decision. Even in civil cases, this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so, in criminal cases this is impermissible. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other even with the consent of the accused. 15. In the case in hand, it is noteworthy that PW/2-S.R. Mandavi, PW/3-John Alam, PW/9-Gyanchand Agrawal, the complainant PW/13-Dr. Girdhari Lal Bajaj, PW/14-Chandi Ram, PW/15-Jagdish Uikey have not been re-examined by the prosecution regarding accused Anil Panda. Therefore, looking to the above mentioned provisions and judicial precedents, this Court reaches to this conclusion that statements of the aforesaid witnesses which have been taken in the absence of the accused-Anil Panda, alleged test identification parade (Ex. P/1), alleged Arms Examination Report (Ex. P/2) which is concerned with the ammunition of the police officials, Ex. P/18 and Ex. P/19 should not be considered against the appellant. 16. PW/7-S.P. Shukla states in para-14 of the re-examination in chief, on oath, that the complainant was recovered from the custody of the accused Anil Panda. He had also seized a country made pistol and other articles from him. He further states in para-17 during recross-examination that when he had prepared recovery panchnama, at that time, the accused-Anil Panda was found sitting along with the complainant inside the car. 17. PW/10-Mohd Ismail Khan states in para-10 of his recross-examination on oath that when the police party reached near the Maruti car, he saw Anil Panda fleeing away from the spot. 18. PW/17-Rukhman Raman Pratap Singh states in paras-2 and 3 that he, along with his party as well as by another party, caught all the remaining accused from Dharsiwa-Raipur road. One bag containing the ransom amount was also seized. 19. PW/18-Dayashankar Pandey states in para-2 that he came to know that only accused Anil Panda has been caught by the police party. 20. PW/1-Satyanarayan, PW/2-S.R. Mandavi, PW/4-Kaushal, PW/5-Budhram Verma, PW/6-Rahmat Khan, PW/8-Manoj Agrawal, PW/11-Mahendra Pal, and PW/16-Amrit Lal Jaiswal do not say anything against the accused Anil Panda. 21. PW/7-S.P. Shukla and PW/10-Mohd. Ismail Khan were the star witnesses of the prosecution in the second round of trial. 22. This is not the prosecution case that PW/10-Mohd. 20. PW/1-Satyanarayan, PW/2-S.R. Mandavi, PW/4-Kaushal, PW/5-Budhram Verma, PW/6-Rahmat Khan, PW/8-Manoj Agrawal, PW/11-Mahendra Pal, and PW/16-Amrit Lal Jaiswal do not say anything against the accused Anil Panda. 21. PW/7-S.P. Shukla and PW/10-Mohd. Ismail Khan were the star witnesses of the prosecution in the second round of trial. 22. This is not the prosecution case that PW/10-Mohd. Ismail Khan had reached along with the police party of which he was a member, near the alleged Maruti car and had seen the accused-Anil Panda running away from the spot. There is an omission regarding these facts in his police statement (Ex. D/2). This omission is an important omission and adversely affects the credibility of the said statement of PW/10-Mohd. Ismail Khan. As per the prosecution story, the Superintendent of Police and his party had arrested the accused-Anil Panda along with other co-accused. This fact has also been enumerated in Ex. D/2. In these circumstances, this Court disbelieves the said statement of PW/10 Sub Inspector Mohd. Ismail Khan. 23. PW/7-Sub Inspector S.P. Shukla did not state how he reached near the Maruti car as well as near to the second spot, i.e. village Charoda. In other words, that witness did not state clearly and strongly as per the prosecution story that allegedly during the search he reached near the Maruti car along with the police party. Moreover, this witness does not say about the three remaining accused. It is not mentioned in Ex. P/3 and Ex. P/4 that what was the actual place at village Charoda. Ex. P/3 is not signed by the accused Anil Panda. In Ex. P/4, it has not been mentioned that the pocket from which allegedly two live cartridges were seized, was of the shirt or the trouser. 24. PW/7-S.P. Shukla states in para-19 that this is true that it has not been mentioned in Ex. P/4 that any of the articles were packed and sealed. He himself does not state clearly and strongly that allegedly he has sealed one country made pistol and two live cartridges which were seized from the appellant. The prosecution has failed to prove any report furnished by armourer who had examined the said pistol and cartridges. 25. PW/4-Kaushal, PW/5-Budhram do not state anything against the accused Anil Panda and do not support Ex. P/3 and Ex. P/4 and have turned hostile. The prosecution has failed to prove any report furnished by armourer who had examined the said pistol and cartridges. 25. PW/4-Kaushal, PW/5-Budhram do not state anything against the accused Anil Panda and do not support Ex. P/3 and Ex. P/4 and have turned hostile. PW/12-Ravindra Upadhyay does not state during his re-examination in chief about the alleged seizure of Rs. 7850/- from accused Satish Chandrakar. 26. The prosecution has not reexamined his material witness, i.e. the complainant PW/13-Dr. Girdhari Lal Bajaj, who was in the custody of the accused for couple of hours. 27. In Md. Faizan Ahmad @ Kalu v. State of Bihar, 2013(1) LRC 82 (SC) the Hon'ble Supreme Court has observed that if a demand for ransom is made, the police should trace the calls and identify the caller and failure to do so cannot be substituted by other modes because the criminal courts recognize only legally admissible evidence and not far-fetched conjectures and surmises. If a criminal court allows its mind to be swayed by the gravity of offence and proceeds to hand out punishment on that basis, in the absence of any credible evidence, it would be doing great violence to basic tenets of criminal jurisprudence. 28. In Dharam Vir v. State, 2016(5) LRC 260 (Del), the High Court of Delhi has observed that the appellant has not been identified as in his examination-in-chief, the victim stated that third person was not present in the Court. Even on cross-examination by APP, the sole witness said "Aisa sa hi tha". Then the appellant is entitled to the benefit of doubt. 29. In Rajbir v. State, 2015(8) LRC 261 (Del), the High Court of Delhi has laid down that the contradictions which do not go to the root of the matter, cannot dent the case of the prosecution but in case, evidence is incredible and cannot be accepted by test of prudence, then it may create a dent in the prosecution version. In Rajbir v. State, 2015(8) LRC 261 (Del), the High Court of Delhi has laid down that the contradictions which do not go to the root of the matter, cannot dent the case of the prosecution but in case, evidence is incredible and cannot be accepted by test of prudence, then it may create a dent in the prosecution version. Material contradictions in testimonies of victim, his wife, his son, and further the manner of arrest of appellants, telephone calls regarding ransom having not been mentioned by wife of victim either in DD or in the FIR, no reference having been made of one of accused with regard to his having spent four hours with the victim and wife of victim serving lunch to them on the date of her husband's disappearance, the conviction is not made out. 30. In Surinder v. State of Haryana 2014(2) LRC 410 (P&H) the High Court of Punjab and Haryana held that the failure of prosecution to prove that pistol and cartridge recovered from the appellant were kept intact till it was got tested. The witness who allegedly got pistol tested, has nowhere stated that he has produced the same before the armourer to get it tested. At the time of alleged recovery, no distinctive mark was put on the pistol and cartridge. Evidence is totally missing as to in whose possession the pistol and cartridge remained before the pistol was got tested and produced in Court. Benefit of doubt was therefore extended to appellant. 31. Looking to the above mentioned facts and circumstances, aforesaid judicial precedents, this Court finds that said statement of PW/7-S.P. Shukla, Ex. P/3 and Ex. P/4 are not natural, normal and simple. Thus this Court disbelieves said statement of PW/7-S.P. Shukla, Ex. P/3 and Ex. P/4. Therefore, the prosecution does not get any help from said statements of PW/17-Rukhman Raman Pratap Singh and PW/18-Dayashankar Pandey. 32. After appreciation of the evidence, this Court finds that the prosecution has miserably failed to prove the charges against the accused-Anil Panda under Section 364A/34 IPC and under Section 25(1)(a) of the Arms Act. Thus, the appeal is allowed and judgment of conviction and order of sentence of the appellant are hereby set aside. The accused Anil Panda is acquitted by giving benefit of doubt, from the charges under Section 364A/34 IPC and Section 25(1)(a) of the Arms Act. Thus, the appeal is allowed and judgment of conviction and order of sentence of the appellant are hereby set aside. The accused Anil Panda is acquitted by giving benefit of doubt, from the charges under Section 364A/34 IPC and Section 25(1)(a) of the Arms Act. The appellant is on bail. The bail bond of the appellant stands discharged subject to the provisions contained in Section 437-A of the Cr.P.C.