Munni Lal & Ors. vs The State Of M.P.
2023 Latest Caselaw 11206 MP

                                        1
 IN     THE         HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                           BEFORE
            HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                          ON THE 19 th OF JULY, 2023
                    CRIMINAL APPEAL No. 2047 of 1998

BETWEEN:-
1.    MUNNI LAL S/O DAYARAM KACHI, AGED ABOUT
      30 YEARS, R/O VILLAGE KHUJURPURWA P.S.
      RAJNAGAR, DISTRICT CHHATARPUR (MADHYA
      PRADESH)

2.    GANSU S/O DIVIYA KACHI, AGED ABOUT 28
      YE A R S , R/O VILLAGE KHUJURPURWA P.S.
      RAJNAGAR, DISTRICT CHHATARPUR (MADHYA
      PRADESH)

3.    MOHAN S/O BALIYA KACHI, AGED ABOUT 28
      Y E A R S , R/O VILLAGE KHUJURPURWA P.S.
      RAJNAGAR, DISTRICT CHHATARPUR (MADHYA
      PRADESH)

      CHHOTA S/O MANGALDEEN, AGED ABOU 32
4.    YE A R S , R/O VILLAGE PATAN AT PRESENT
      JATKARA, DISTRICT CHHATARPUR (MADHYA
      PRADESH)

                                                                           .....APPELLANTS
(BY SHRI RANJAN BANERJEE - ADVOCATE)

AND
THE STATE OF M.P. (MADHYA PRADESH)

                                                                          .....RESPONDENT
(BY SHRI SATPAL CHADAR - GOVERNMENT ADVOCATE)

      Reserved on         : 12.7.2023
      Pronounced on : 19.7.2023
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      This criminal appeal having been heard and reserved for judgment,
                                      2
coming on for pronouncement this day, the court passed the following:
                                    JUDGMENT

This appeal has been preferred to challenge the impugned judgment dated 27.8.1998 passed in Sessions Trial No.235/1996 by the Third Additional Sessions Judge, Chhatarpur, whereby the appellants were convicted for an offence punishable under section 392 of IPC and sentenced to suffer RI for two years. This appeal stands abated insofar as it relates to appellant no.2 Gansu and appellant no.4 Chhota who died during the pendency of this appeal.

2 . The brief facts of the prosecution case are that on 9.4.1996 complainant Bhagirath and his wife Pushpa were sleeping in a hutment which

was in their field and their relative namely, Pakaiya was also present in his nearby hutment. At around 12:00 hours in the night, Pakaiya called the complainant to come out and on hearing his voice, Bhagirath and his wife Pushpa (P.W.5) came outside. They saw that four young men with wheatish complexion and armed with gun, farsa and lathi were standing along with Pakaiya. Bhagirath was able to see their faces in the moonlight. These four persons asked complainant Bhagirath and his family members to arrange food for them. Acceding to their request, the food was cooked in that late of night and was served. These persons compelled Bhagirath to handover his gold periapt (tabeez), which was worn by him in his neck, and also his wife Pushpa to handover her silver girdle (kardhani) to them. The robbers searched for other items as well and thereafter left the place after giving a threat to kill if the matter was reported. In the morning, complainant Bhagirath informed the matter to his family members and lodged the FIR in the police station. The appellants were arrested and the looted articles were recovered from their possession. The

identification proceedings of appellants as well as of looted articles were conducted and the charge-sheet was filed under section 397 of IPC. The appellants faced the trial and after its conclusion they were convicted for a lesser offence of section 392 IPC and were sentenced as aforesaid.

3 . In this criminal appeal, the grounds raised are that the impugned judgment suffers from error both on law and facts. There were many contradictions and omissions in the statements of witnesses, therefore, benefit should have been given to the appellants, who were otherwise innocent persons. The FIR did not mention the description of appellants. Their test identification parade was not proved reliably. Complainant Bhagirath changed his statements on the crucial point of identification. The identification of looted articles was also not proved. It was admitted by the prosecution witnesses that they identified the looted articles in the police station. There were no criminal records of appellants to suggest that they ever committed any other offence and despite this, they were not given the benefit of probation. It was, therefore, prayed that the impugned judgment be set aside and the appellants be acquitted of the charge.

4. Learned counsel for the State opposed the appeal and submitted that from the prosecution evidence, guilt of appellants is clearly proved and, therefore, the trial court did not commit any error in finding the appellants guilty

for the aforesaid offence and prayed for rejection of the appeal.

5. Heard learned counsel for the parties, perused the judgment and record of the court below.

6 . This appeal was originally filed by four appellants and as stated in para 1 of this judgment, the appeal stands abated insofar as it relates to appellant no.2 Gansu and appellant no.4 Chhota. This Court has therefore to

see whether the prosecution case is proved convincingly against appellant no.1 Munnilal and appellant no.3 Mohan.

7 . It is an admitted fact that the appellants were not known to complainant Bhagirath prior to the alleged incident, therefore, the report was lodged against four unknown persons. That FIR is Ex.P6. Though the description of persons, who committed the loot, is not mentioned in the FIR but it was claimed therein by complainant Bhagirath that he and his wife would recognize the robbers and also the looted articles if they happen to see them again. Similar was the police statements of Pakaiya and Pushpa.

8. The proceedings of this case reveal that initially the case was tried by Magistrate Court for the charge of Section 392 of IPC and under that trial three witnesses namely, Bhagirath (PW-1), Pushpa (PW-2) and Wahid (PW-3) were examined. On 24.10.1996, the learned Magistrate observed that the offence committed appears to be punishable under Section 397 of IPC, which is exclusive triable by Sessions Court, therefore, he committed the case for trial to the Sessions Court. Hence, the trial started de novo in the Sessions Court and under it witness Bhagirath was re-examined as PW-4, Pushpa as PW-5 and Wahid as PW-3. Thus, there are two statements available on record of these three witnesses.

9 . During Court testimony, Pakaiya (P.W.1) has disclosed in his examination-in-chief that he could not identify the robbers at the time of incident. He later improved his statement by claiming that he identified appellant no.3 Mohan as one of robbers in the test identification parade. The test identification report Ex.P8 also suggests that it was appellant no.3 Mohan alone who was identified by witness Pakaiya (P.W.1) during the test identification

parade. When this witness was questioned about the place of test identification parade, he could not give the details thereof. In para 5 of his statements, he has admitted that he was called by the Town Inspector of Police Station Rajnagar, district Chhatarpur, and was told that a particular person was the robber. He further admits that at Police Station Rajnagar, he had a chance to see the offenders and this made him to identify them. These admissions cast a serious doubt on the reliability of test identification parade.

10. Pushpa (P.W.5) was the victim of this crime. In her statements, she first narrated the whole of the prosecution story and then claimed that amongst 10-12-25 persons she was able to correctly identify all the four robbers at Chhatarpur. In this context, Shinakti (identification) memo Ex.P8 is examined. It says that when Pushpa happened to see the appellants for the purpose of identification, she could identify only appellant no.1 Munnilal and appellant no.3 Mohan, while rest of the two could not be identified by her. In her cross- examination recorded on 19.7.1996 (as P.W.2) she has admitted in para 7 that she was called at the police station where the appellants were produced before her. Obviously, this experimental screening enabled her to identify them.

11. In para 8 of that cross-examination, Pushpa has also admitted that on the night of incident, it was dark and there was no light in that area. In contrast of these statements she has claimed in para 4 of her testimony as PW-5 that she was able to identify all the offenders on the night of incident. Thus, the statements of Pushpa given on two occasions enable to infer that she was not stable on her statements. Her testimony cannot be relied upon the point that she was able to see the faces of the appellants at the time of incident. Further she cannot be believed that she could have identified the appellants correctly in the identification proceedings without getting an opportunity of seeing them at the

police station. Thus, the identification of appellants on the basis of this shaken testimony is not reliably proved by Pushpa.

12. Bhagirath is the complainant of this case, who lodged the FIR

Exhibit-P/6. Incident occurred in the midnight of 7th and 8th o f April 1996 at 12:00 hours while he reported the matter to the police station after a delay of almost 19 hours. The distance between the place of incident and the police station is shown to be only 12 kms. The reason for this delay has not been accounted for.

13. Bhagirath, in his Court testimony recorded on 04.12.1997 as PW-4, has identified all the appellants by their names, but this fact cannot be denied that he was not in acquaintance with the appellants prior to the incident and for this reason, the FIR was lodged against the unknown persons. In para 4, he has stated that he identified all the four appellants in District Jail Chhatarpur. Identification Memo Exhibit-P/8 reveals that in the parade, he has made incorrect identification of appellant No.1 namely, Munnilal.

14. Bhagirath, in his earlier statements given before the Magistrate as PW-1, has specifically admitted that the identification proceeding of appellants was done at the police station but in his statements given as PW-4, he claims in para 13 that though he went to the police station but there the identification proceeding of appellants was not conducted and he identified them only in District Jail Chhatarpur. He could not explain why there was this stark contradiction in his two statements regarding the place of identification proceedings of the appellants.

15. Bhagirath, in para 12 of cross-examination as PW-4, claims that there was moon light and a bulb was also on at the time of the incident while during

his cross-examination as PW1, he has claimed that it was a dark night. Thus, on the point of identification of appellants at the time of incident as well as during investigation, this witness is also not reliable.

16. Prosecution has examined Naib Tehsildar, Rajnarayan Khare (PW-8) t o prove the identification memo Exhibit-P/8 but his testimony cannot be claimed to be credible because the persons who allegedly identified the appellants during this proceeding namely, Pakaiya, Bhagirath and Pushpa have created reasonable doubt about the legality of identification proceeding. All the three witnesses, at some place or the other in their Court testimony have admitted that the appellants were shown to them at the police station before the actual identification proceedings were conducted.

1 7 . The other relevant fact connecting with the alleged crime is the seizure of looted items from the possession of appellants. Exhibit-P/4 is the seizure of gold periapt (tabeez) from the custody of appellant No.3-Mohan and Exhibit-P/5 is the seizure memo of silver girdle (Kardhani) from the possession of the the appellant No.1-Munnilal. This fact is relevant that both the witnesses of these seizure memos have turned hostile and only Investigating Officer, Shri V.K. Mishra (PW-10) has corroborated the facts of these seizure.

18. Seizure of looted items alone cannot prove the prosecution case and it is further to be proved to bring home the guilt of appellants that the seized items were identified as looted items by the aggrieved persons. Exhibit-P/7 is the identification memo of seized items which shows that complainant Bhagirath, his wife Pushpa and one Manpyare were shown the seized items and they correctly identified them. For this, the prosecution has examined Sarpanch Pradeep Dega (PW-6), who conducted this identification proceeding.

1 9 . Bhagirath (PW-4) when cross-examined on the identification

proceeding of articles has admitted in paras 13 and 14 that he was shown these articles by the police. In para 5 of his examination-in-chief, he has further clarified that the identification proceeding of looted articles was conducted by Tripathi Darogaji. Pushpa (PW-5) has also made similar statements in paras 2 and 5 of her Court testimony. Manpyare, whose name is mentioned in exhibit- P/7, is not examined as prosecution witness.

2 0 . The statements given by Bhagirath and Pushpa have rendered the testimony of Pradeep Dega (PW-6) and the identification memo Exhibit-P/7 prepared by him as unreliable.

2 1 . On the basis of above discussions, this Court comes to the conclusion that the appellants were not known to the complainant and for this reason alone an unnamed FIR was lodged and the identification proceedings of appellants as well as of seized items are found to be tained and totally unworthy of credit. Therefore, the conviction of appellants under Section 392 of IPC cannot be maintained.

22. On the basis of aforesaid discussion, this appeal is allowed and the conviction as well as sentence passed by the trial Court regarding the offence of Section 392 of IPC is set-aside. The appellants are in custody. They be released forthwith, if not required in any other case. Fine amount, if deposited, shall be refunded to them.

23. The order passed by the trial Court regarding the custody of seized items is confirmed because the appellants have not challenged that part of the impugned judgment.

A copy of this order be sent to the trial Court along with its record for compliance and information.

(ANURADHA SHUKLA) JUDGE ps/Nitesh

Digitally signed by NITESH PANDEY Date: 2023.07.20 17:02:56 +05'30' Adobe Reader version: 11.0.23