Pappu @ Sartaj vs The State Of Madhya Pradesh
2022 Latest Caselaw 1676 MP

1                                                               CRA No.1219/2017

                 HIGH COURT OF MADHYA PRADESH
                               BENCH GWALIOR
                                SINGLE BENCH:
                 HON'BLE SHRI JUSTICE G.S. AHLUWALIA
                         Criminal Appeal No.1219/2017
.........Appellant(s):                       Pappu @ Sartaj & Ors.
                                             Versus
.......Respondent(s) :                       State of M.P.
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Shri S.S. Chauhan, Counsel for the appellants.
Ms. Kalpana Parmar, Counsel for respondent/State.
----------------------------------------------------------------------------------------
Date of hearing                      : 28/01/2022
Date of Judgment                     : 7th/Feb/2022
Whether approved for reporting :
                                   JUDGMENT

(7th /02/2022) (Through Video Conferencing)

This criminal appeal under Section 374 of Cr.P.C. has been filed

from jail against the judgment dated 11.8.2017 passed by Special Judge

(MPDVPK Act), Gwalior in Special Sessions Trial No.30/2014 by which

the appellants have been convicted under Section 394 of IPC read with

Section 13 of MPDVPK Act and have been sentenced to undergo the

rigorous imprisonment of five years and a fine of Rs.2,000/- on each

count with default imprisonment of six months. Both the sentences have

been directed to run concurrently.

2. A PUD dated 13.12.2021 has been received from the Court of

Special Judge (MPDVPK Act), Gwalior which is addressed to the

Principal Registrar of this Court to the effect that the appellants did not

furnish bail in compliance of order dated 12.2.2018 and a communication

has been received from the office of Superintendent, Central Jail, Gwalior

dated 9.12.2021 that the appellant No.1 has completed the jail sentence

on 10.7.2019 and appellants No.2 and 3 have completed the jail sentence

on 28.6.2019 and they have also deposited the fine amount. However, it is

also mentioned that the appellants are undergoing the life imprisonment

in Crime No.237/2014.

3. Thus it is clear that the appellants have already undergone the

entire jail sentence awarded in this case. However, merely because the

accused persons have undergone the jail sentence, would not render the

appeal infructuous. Accordingly, the counsel for the appellants was heard

finally.

4. According to the prosecution case, on 8.6.2013 at about 1:30 in the

night, the appellants Pappu @ Sartaj, Chand Khan @ Chandmiya and

Shaukat @ Toofan robbed the complainant Ramjilal and his wife

Meerabai and took away the gold and silver ornaments worth

Rs.26,000/-. The complainant Kalyan Singh lodged a report on 8.6.2013

itself at 2:15 AM i.e. within a period of 45 minutes from the time of

offence to the effect that he along with his family members were sleeping

in his house. He heard the shouts of his nephew Mohan. He rushed to the

house of Mohan and found that Mohan was lying in an injured condition

and his younger brother Ramjilal was also lying in injured condition. His

Bhabhi Meerabai was also lying in injured condition with bleeding from

her ears. Her gold and silver ornaments were missing. When he tried to

enquire from the injured about the incident, they could not say anything

and became unconscious. On the report of Kalyan Singh, the police

registered Crime No.72/2013 for offence under Section 394 of IPC

against unknown persons. The appellants were arrested. The

memorandum of the accused persons were recorded. Statements of the

witnesses were also recorded. Some ornaments were recovered from the

possession of the appellant Pappu @ Sartaj. The police after completing

investigation has filed the charge sheet for offence under Section 394 of

IPC and under Section 11/13 of MPDVPK Act.

5. The Trial Court by order dated 13.2.2015 framed the charges under

Section 394 of IPC read with Section 13 of MPDVPK Act.

6. The appellants abjured their guilt and pleaded not guilty.

7. The prosecution examined Meerabai (PW-1), Ramjilal (PW-2),

Kalyan Singh (PW-3), Neetu Kushwah (PW-4), Dashrath (PW-5), Brijraj

(PW-6), Mohan Singh (PW-7), Hariom (PW-8), Ram Avtar Singh (PW-9)

and Suresh Kumar Sharma (PW-10).

8. The appellants did not examine any witness in their defence.

9. The Trial Court by the impugned judgment has convicted and

sentenced the appellants for the offences mentioned above.

10. Challenging the findings recorded by the Court below, it is

submitted by the counsel for the appellants that the prosecution has failed

to prove the guilt of the appellants beyond reasonable doubt.

11. Per contra, the counsel for the State has supported the prosecution

case.

12. Heard the learned counsel for the parties.

13. For deciding the appeal, three questions are required to be

answered:

(i) Whether the prosecution witnesses have identified the appellants?

(ii) Whether the looted articles were seized from the possession of the

appellants?

(iii) Whether the recovered articles were duly identified by the

witnesses or not?

Identification of the accused:-

14. Undisputedly the police did not conduct test identification parade

of the accused. Thus the identification of the appellants is solely based on

the Dock identification.

15. Meerabai (PW-1) one of the injured has not stated anything about

the identification of the accused. Ramjilal (PW-2) in his examination-in-

chief had submitted that he knows the appellants by their faces because

they had assaulted him and his wife and son but in the cross-examination,

he admitted that he was assaulted while he was sleeping and he

immediately became unconscious and, therefore, he could not see the

assailants and in view of the admission made by Ramjilal in his cross-

examination, it is held that the prosecution does not get any help from

this witness for the purposes of establishing the identification of the

appellants. Mohan (PW-7) is third injured witness. In examination-in-

chief, he stated that he knows the appellants as they had beaten but in his

cross-examination he stated that although he had informed the police that

since he was beaten by the assailants, therefore, he can identify them but

the said fact is not mentioned in his police statement Ex.D/2. He denied

that he became unconscious while he was asleep. He further stated that he

had not informed the police that he was beaten by the assailants while he

was asleep and became unconscious and regained consciousness in

Gwalior Hospital but could not explain as to why the said fact is

mentioned in his police statement Ex.D/2. He admitted that it was dark in

the night but claimed that light was there but fairly conceded that he

claimed that he had informed the police about the source of light but

fairly conceded that this fact is not mentioned in the police statement

Ex.D/2. Further, in the spot map Ex.P/4, the source of light is not

mentioned. The incident had taken place in a field. No electricity pole or

bulb etc have been shown in the spot map. Although, it is true that even

in absence of test identification parade, the prosecution can establish the

identification of an accused on the basis of their Dock Identification but

in view of major omissions and contradictions in the evidence of Mohan

Singh (PW-7), this Court is of the considered opinion that the prosecution

has failed to prove that the offence was committed by the appellants.

Whether looted articles were seized from the possession of the

appellants and whether they have been identified by the witnesses or

not?

16. Since both the circumstances are inter-dependent on each other,

therefore, they are being considered jointly.

17. After the arrest of the appellants, the memorandum of Pappu @

Sartaj Khan Ex.P/6 was recorded on 15.7.2014 and according to that

memorandum, the looted articles were sold to Deepu Soni at Aligarh.

Similarly the memorandum of Chand Khan Ex.P/8 and Shaukat @ Toofan

Ex.P/9 were recorded who have stated that the looted articles were sold to

some jeweller at Aligarh and Chand Khan as well as Shaukat @ Toofan

got an amount of Rs.700/- which has been spent. Thereafter, it appears

that another memorandum of Pappu @ Sartaj was recorded on 17.7.2014

Ex./P/10 in which he has stated that the looted articles are kept in his

house and, accordingly, on 17.7.2014 itself one pair of gold ear ring

worth Rs.10,000/-, one gold nose pin worth Rs.1,000/-, one pair of gold

bangle worth Rs.26,000/- were seized. These articles were put for test

identification parade which were allegedly identified by Meerabai (PW-1)

and Ramjilal (PW-2).

18. It is not out of place to mention here that according to the FIR, one

Mangalsootra was also taken away but that was not recovered. No

attempt was made to interrogate the jeweller of Aligarh.

19. Meerabi (PW-1) has admitted that she went for identification for

her ornaments where four to six police personnel were also standing.

Police personnel have shown her articles and asked her to identify them.

She has specifically stated that except the ornaments of this witness, no

other ornaments were mixed.

20. Ramjilal (PW-2) has stated that he and his wife had gone to

identify his ornaments. The ornaments were identified in the police

station Mohna. At that time, five to six persons were there in the police

station. He specifically stated that although he had identified the

ornaments but they were the ornaments of his wife and no other ornament

was mixed. He further stated that he had signed the identification memo

Ex.P/2 on the instruction of the SHO in Police Station Mohna itself. Thus

it is clear that the identification of ornaments by Meerabai (PW-1) and

Ramjilal (PW-2) cannot be relied upon for the reasons that (i) no other

ornament was mixed although it is mentioned in the identification memo

Ex.P/2, (ii) The police personnel were also present at the time of the

identification and (iii) The ornaments were already shown to Meerabai

(PW-1) by the police personnel before holding the test identification. The

person who had conducted the test identification has not been examined.

21. Under these circumstances, this Court is of the considered opinion

that the police has miserably failed in establishing the identification of

the ornaments allegedly recovered from the possession of appellant No.1

Pappu @ Sartaj.

Conclusion:

22. In absence of identification of the accused as well as identification

of the articles, this Court is of the considered opinion that the prosecution

has failed to prove the guilt of the appellants beyond reasonable doubt.

Accordingly, they are acquitted of all the charges.

23. The judgment and sentence dated 11.8.2017 passed by Special

Judge (MPDVPK Act), Gwalior in Special Sessions Trial No.30/2014 is

hereby set aside.

24. However, it is clear from the PUD received from the Trial Court

that the appellants are undergoing life imprisonment in another case,

therefore, no direction for their release can be given.

25. The appeal succeeds and is hereby allowed.

(G.S. Ahluwalia) Judge (alok)

ALOK KUMAR 2022.02.07 14:08:02 +05'30'