Madhya Pradesh High Court
Mukesh vs The State Of Madhya Pradesh on 7 August, 2024
Author: Hirdesh
Bench: Vijay Kumar Shukla, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 8th OF AUGUST, 2024
CRIMINAL APPEAL No. 893 of 2011
MUKESH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Singh, learned counsel for the appellant.
Shri Amit Rawal, learned counsel for the respondent/State.
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CRIMINAL APPEAL No. 1144 of 2011
KISHORERAO PATIL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rajat Raghuwanshi, learned counsel for the appellant.
Shri Amit Rawal, learned counsel for the respondent/State.
JUDGMENT
Per: Hirdesh, J.
These criminal appeals have been filed by the appellants being
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aggrieved by the judgment dated 28.07.2011 passed by 12 th Additional
Sessions Judge, Indore in Session Trial No.142/2006 whereby the trial court
has convicted the appellant- Mukesh under Section 460 of IPC and
sentenced him to undergo life imprisonment with fine of Rs.10,000/-; under
Section 396 of IPC and sentenced him to undergo life imprisonment with
fine of Rs.10,000/-; under Section 395/397 of IPC and sentenced him to
undergo R.I. for 10 years with fine of Rs.2000/- and under Section 307 of
IPC and sentenced him to undergo R.I. for 7 years with fine of Rs.2000/-
and the appellant - Kishorerao under Section 460 of IPC and sentenced
him to undergo life imprisonment with fine of Rs.10,000/-; under Section
396 of IPC and sentenced him to undergo life imprisonment with fine of
Rs.10,000/-; under Section 395/397 of IPC and sentenced him to undergo
R.I. for 10 years with fine of Rs.2000/- and under Section 307 of IPC and
sentenced him to undergo R.I. for 7 years with fine of Rs.2000/- and under
Section 25(1-b) A of Arms Act, with default stipulation.
2. Brief facts of the case are that PW-6 Omprakash resided at EG 22,
Scheme No.54, Vijay Nagar, Indore and did construction work and his
nephew Neeraj @ Palak also resided with him. In the night of 3 rd-4th
October, 2005 at about 11 p.m., he went to sleep with his wife- Archana and
daughter- Sohani and his nephew- Neeraj @ Palak was watching T.V. in the
hall. In the mid-night at about 2 O'clock, 4 persons entered the house and
asked for switching on the light and then complainant-Omprakash and his
wife woke up and asked the persons, who are you? Upon it, they started
assaulting him with knife on his body as well as on the body of his wife.
When complainant and his wife cried, they were threatened not to cry
otherwise they would be killed. They took off golden chain, two rings, ear
tops and rings of the wife of PW-6 and also demanded key of almirah and
looted Rs.5000-6000/- along with camera and other articles and took with
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them. The accused persons tied PW-6 Omprakash and his wife-Archna in the
store room and shut the door from outside. When, in the morning, garbage
collector -Veena PW7 came then his wife cried then after people living
nearby came and opened the door. When, Archna wife of PW-6 saw the
bedroom of Neeraj @ Palak, she found that Neeraj @ Palak was lying
drenched in blood in the bed room with injuries on his body. He was taken to
Bhandari hospital where he was declared dead.
3. All the 4 persons were wearing pants and shirts and 3 of them were of
normal body of wheatish color and one of them was blackish and fatty. All
of them ran away from the window and after taking golden articles and cash
with them after murdering Neeraj @ Palak. Police station-MIG, Indore
registered F.I.R. at Crime No.952/2005 under Section 460, 396, 395/397 and
307 of IPC and under Section 25 of Arms Act against the appellants.
4. Police investigated the matter and during investigation, police arrested
the accused persons and took their memorandum and seized the articles and
after taking statements of prosecution witnesses and after due investigation,
charge-sheet was filed before the Magistrate court then after case was
committed to sessions court for trial.
5. Trial court framed the charges against the appellants and appellants
abjured their guilt and sought trial.
6. In turn, the prosecution in order to prove its case examined 18
witnesses and appellants were examined under Section 313 of Cr.P.C.
Appellants took defence that they have not committed offence and they have
been falsely implicated in the offence.
7. After hearing the learned counsel for both the parties, trial court found
the appellants guilty of the charges and convicted and sentenced as
aforesaid.
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8. Being aggrieved by the impugned judgment, appellant - Kishorerao
Patil ( in Cr. A. No.1144/2011) filed the appeal on the ground that PW-15
Munnalal admitted in his cross-examination that articles were brought by
police in open condition and Archana and Omprakash came with police and
articles. He further admitted that police men went for bringing other similar
articles for identification, at that time, Archnaand Omprakash were sitting
with him and the learned trial court has committed error in not considering
such evidence. He further submitted that PW-5 Archna and PW-6
Omprakash and PW-17 Sohani improved their version in the court. Accused
removed their scarf from their faces for drinking cold drinks and eating
chips. Accused covered their faces with semi-transparent scarfs. These facts
were not written in Dehati Nalishi Ex.P-18. The trial court has committed
error in not considering these facts. Prosecution was unable to prove
complete chain of circumstances and trial court has committed error in
convicting the appellant without corroborative evidence. There are so many
material contradictions and omissions in the statements of prosecution
witnesses. The trial court has committed error in discarding defence version
and relying upon the prosecution version which is fully contradictory and no
such reliance upon the same can be placed in convicting the appellants.
Hence, it is prayed that appeal be allowed and impugned judgment be set
aside and the appellant - Kishorerao be acquitted from all the charges.
9. The appellant- Mukesh (in Criminal Appeal No.893/2011) has filed
the appeal being aggrieved by the impugned judgment by submitting that the
judgment of the trial court is contrary to law and facts on record. He further
submitted that the judgment of the trial court is neither legal nor proper nor
correct. PW-5 Archna and PW-6 Omprakash have not identified the present
appellant as an assailant. So trial court has wrongly convicted the appellant-
Mukesh and prayed for setting aside the impugned judgment and acquittal of
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the appellant- Mukesh from all the charges.
10. On the other hand, learned counsel for the respondent/State supported
the impugned judgment passed by trial court and prayed for rejection of the
appeal.
11. The first question arises before this Court is whether the death of the
deceased -Neeraj @ Palak is homicidal in nature or not.
12. PW-5 Archna has stated in her examination-in-chief that in the
morning when people living nearby opened the door then they found Neeraj
@ Palak dead in his bedroom and blood was oozing from his body. This
version was supported by PW-6 Omprakash and PW-17 Sohani. PW-18 B.P.
Mishra, Investigating Officer stated in his examination-in-chief that he
lodged F.I.R., Dehati Nalishi Ex.P-18 and inspected the spot where he saw
that Neeraj @ Palal was lying dead in his bedroom and he prepared Laash
Naksha Panchayatnama and sent the dead-body for postmortem. PW-9
Dr. M.N. Unda, who conducted postmortem of the deceased stated that
on 05.02.2005, he was posted as instructor in MGM Medical College,
Indore and conducted postmortem of the deceased and found following
injuries:-
"pksVa dz-a 1%& dVk gqok ?kko diky ij lkeus dh rjQ feMykbZu
ds Hkkx esa HkkSga ls mij Ms<+ ls0eh0 ds yxHkx vkMk gksdj ftldk vkdkj
3-5 ls0eh0 xqf.kr 0-5 ls0eh0 Fkk rFkk xgjkbZ iwjh ijr rd Fkh A
pksVa dza 2%& dVk gqok ?kko nkfgus rjQ gM~Mh rd xgjk
gksdj ,yoks ds fdukjs ds Hkkax esa pksVa dk vkdkj ls0eh0 xqf.kr 0-5 ls0eh0
rFkk gM~Mh esa dVus dk vkdkj 0-2 ls0eh0 xqf.kr 0-1 ls0eh0 FkkA
pksVa dza 3%& ?kksik gqok ?kko nkfgus rjQ o{k ij fuIIky ls 9
ls0eh0 fups o Ms<+ ls0eh0 fdukjs dh rjQ pksVa dk vkdkj 2-5 ls0eh0
rFkk xgjkbZ fyoj ds fHkrj rd 12 ls0eh0 xgjh FkhA pksaV dh fn'kk
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lkeus ls fiNs dh rjQ FkksM
a +k lk mij ,oa fHkrj dh rjQ Fkh tgka
dk ,d fljk ldjk nwljk FkksMk+ lk daVhT;wt gksdj 'ks"k fdukjs lkQ dVs
gqos FksA
pksVa dz-a 4%& ?kksik gqok ?kko o{k ij lkeus dh rjQ esU;wfczy;e
bLVukbZl ls 3-5 fups ds rjQ vkMk gksdj ekStnw Fkk A ftlesa pksVa
QsaQM+s esa fHkrj rd xgjh Fkh rFkk g`n; ls fudyus okyh lcls cM+h jDr
okfguh (,vksVk) dVh gqbZ gksdj blesa pksVdk vkdkj rFkk QsaQM+s esa pksaV
dk vkdkj 1-5 ls-eh- xqf.kr ,d ls0eh0 dk Fkk] QSaQMk] g`n; ,oa o{k ds
Hkkx es jDr Hkjk gqok FkkA pksaV dh fn'kk lkeus ls fiNs ds rjQ ,oa FkksM
a +h
lh mij ,oa fdukjsa ls fHkrj dh rjQ FkhA
pksVa dza 5%& ?kksaik gqok mnj ij thQh LVjue ls 6ls0eh0 fupsa
rFkk 3-5 ls0eh0 ck;h rjQ fdukjs dh vksj ekStwn Fkh ftldk pksaVdk
vkdkj 2-5 ls0eh0 xqf.kr 1-5 ls0eh0 rFkk xgjkbZ mnj dh xqgk rd FkhA
pksaV dh fn'kk lkeus ls fiNs ds rjQ rFkk FkksaMk+ fups ls mij dh rjQ
FkhA blesa fyoj dk Hkkx dVk gqok gksdj ?kko dh dqy xgjkbZ 6ls0eh0
FkhA ?kko dk ,d fljk ldjk rFkk ,d fljk FkksaMk+ lk dVh;qt gksdj 'ks"k
fdukjs lkQ dVs FksA
o{k dh xqgk esa jDr Hkjk gqok Fkk rFkk mnj dh xqgk esa Hkh jDr
Hkjk Fkk ;g mnj dh xqgk esa 0-9 fy0 rFkk o{k dh xqgk esa ,d
fyVj ds yxHkx jDr ekStwn FkkA nksuksa QsaQM+s pksaV ds vfrfjDr
lqdMs gqos gksdj g`n; jDrfgu FkkA mijksDr o.kZu ds vfrfjDr
'kjhj ds lHkh fHkrjh vo;o;ksa esa jDr L=ko ds dkj.k lnesa ds
fpUg ekStwn gksaus ds vfrfjDr lHkh LokLF; gSaA e`rd ds vkek'k;
esa Bhd ls pck;k gqok igpkuus ;ksX; 250xzke ftruk HkksT; inkFkZ
ekStwn FkkA lHkh pksaVksa esa ykyjax dh bdkbZeksfll ,oa ykyjax dk
tek gqok jDr ekSatwn FkkA dVsa gqosa ?kko dM+s cM+s /kkjnkj rFkk ?
kksais gqos ?kko cM+s /kkjnkj ?kksais tkus oLrq ls vkuk ik;k Fkk pksVsa
rkth gksdj e`R;q ds 12 ?k.Vsa ds iwoZ dh vof/k ds fHkrj vkuk
ik;h gksuk tkdj izdzfr ds lkekU; mn~ns'; esa e`R;qdkfjrk djus
ds fy;s i;kZIr FkhA"
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13. PW-9 stated in his examination-in-chief that the injuries found on the
body of the deceased were sufficient to cause death in ordinary course of
nature. No amount of cross-examination could cause scratch on the
statement of this witness. Statements of PW-9 Dr. N.M. Uunda was
unrebutted so this witness appears to be reliable hence, from the statement of
this witness it is proved that deceased died due to those injuries so it is
proved that death of the deceased was homicidal in nature.
14. Learned counsel for the appellant - Kishorerao argued that trial court
has committed error in holding the appellant guilty under Section 395 and
397 of IPC because prosecution is unable to prove that there were 5 or more
than 5 accused committed the offence. He further argued that for the offence
under Section 395 of IPC, there must be required 5 or more than 5 persons
for committing the offence. But, in Dehati Nalish and F.I.R., it was
mentioned that 4 persons entered the house so conviction under Sections 395
and 397 of IPC is bad in the eye of law.
15. In this regard, considering the evidence of PW-18 and memorandum
of the accused, it is established that there were 5 persons who were adjoining
for committing the offence and investigation in regard to absconded person
is under process under Section 173 (8) of Cr.P.C.
16. Learned counsel for the appellant - Kishorerao has placed reliance
upon the judgment of the Apex Court delivered in the case of Rajkumar @
Raju Vs. State of Uttaranchal, 2008 (3) SCC (Cri) 888, in which the Apex
Court has held that if prosecution is unable to prove that if it is not
established that 5 persons or more than 5 persons have committed the
offence then Sections 395 and 397 are not proved. But, in the aforesaid case,
the Apex Court has held that :-
"19. It is thus clear that for recording conviction of an
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offence of robbery, there must be five or more persons. In absence
of such finding, an accused cannot be convicted for an offence of
dacoity. In a given case, however, it may happen that there may be
five or more persons and the factum of five or more persons is
either not disputed or is clearly established, but the Court may not
be able to record a finding as to identity of all the persons said to
have committed dacoity and may not be able to convict them and
order their acquittal observing that their identity is not
established. In such case, conviction of less than five persons or
even one- can stand. But in absence of such finding, less than five
persons cannot be convicted for an offence of dacoity."
17. In the present case, it is clear that police filed charge-sheet against 4
persons and another person - Kaalu was not found by the police so it is clear
that 5 persons have committed the offence. In the present case, finding has
not been given by the trial court that less than 5 persons have committed the
offence so argument of the learned counsel for the appellant - Kishorerao
has no substance in this regard.
18. Learned counsel for the appellant - Kishorerao further submits that
identification of appellant-Kishorerao by PW-5 Archna, PW-6 Omprakash
and PW-17 Sohani is doubtful. In Dehati Nalishi and F.I.R., no identification
mark of the accused was mentioned and according to them, accused were
covering their face by scarfs. So identification by PW-5 Archna and PW-6
Omprakash in identification parade is suspicious and not proved beyond
reasonable doubt.
19. According to Dehati Nalishi, which was lodged by PW-6 Omprakash,
all accused persons were covering their faces by scarfs and it is mentioned in
Dehati Nalishi that 3 persons were of normal physique with wheatish color
and were wearing pants and shirt.
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20. PW-5 Archna Vijaywargiya stated in para 5 of her examination-in-
chief in this regard that she identified 3 persons out of 4 who committed
crime and she indicated face of the appellant-Kishorerao at the time of
recording of evidence before the trial court. PW-6 Omprakash also stated in
para No.3 of his examination-in-chief that accused persons were covering
their faces with semi transparent scarfs in which their faces were visible and
during the recording of statements before trial court, PW-6 Omprakash
identified appellant-Kishorerao.
21. Identification parade was also done by prosecution during
investigation and in identification parade, PW-5 Archna and PW-6
Omprakash identified the appellant- Kishorerao. PW-17 Sohani identified
appellant-Kishorerao during recording of the statement before trial court in
para 7.
22. As per Section 9 of the Evidence Act, facts which establish the
identity of an accused are relevant. Identification parade belongs to
investigation stage and if adequate precautions are ensured, the evidence
with regard to test identification parade may be used by the court for the
purpose of corroboration. The purpose of test identification parade is to test
and strengthen trustworthiness of the substantive evidence of a witness in
court. It is for this reason that test identification parade is held under the
supervision of a magistrate to eliminate any suspicion or unfairness and to
reduce the chances of testimonial error as magistrate is expected to take all
possible precautions.
23. Regarding identification parade, the Hon'ble Apex Court in the matter
of Sheo Shankar Singh Vs. State of Jharkhand, 2011 (3) SCC 654, has
held as under:-
"46. It is fairly well settled that identification of the accused in the
Court by the witness constitutes the substantive evidence in a case
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although any such identification for the first time at the trial may
more often than not appear to be evidence of a weak character. That
being so a test identification parade is conducted with a view to
strengthening the trustworthiness of the evidence. Such a TIP then
provides corroboration to the witness in the court who claims to
identify the accused persons otherwise unknown to him. Test
identification parades, therefore, remain in the realm of
investigation.
47. The Code of Criminal Procedure does not oblige the
investigating agency to necessarily hold a test identification parade
nor is there any provision under which the accused may claim a
right to the holding of a test identification parade. The failure of the
investigating agency to hold a test identification parade does not, in
that view, have the effect of weakening the evidence of
identification in the court. As to what should be the weight attached
to such an identification is a matter which the court will determine
in the peculiar facts and circumstances of each case. In appropriate
cases the court may accept the evidence of identification in the
court even without insisting on corroboration.
48. The decisions of this Court on the subject are legion. It is,
therefore, unnecessary to refer to all such decisions. We remain
content with a reference to the following observations made by this
Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746]: (SCC
pp. 751-52, para 7).
"7. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions of
this Court. The facts, which establish the identity of the
accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence
of a witness is the statement made in court. The evidence
of mere identification of the accused person at the trial for
the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,
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however, is subject to exceptions, when, for example, the
court is impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon the
accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of
identification even without insisting on corroboration.
(See Kanta Prashad v. Delhi Admn. [AIR 1958 SC
350], Vaikuntam Chandrappa v. State of A.P. [AIR
1960 SC 1340], Budhsen v. State of U.P. [(1970) 2
SCC 128 ] and Rameshwar Singh v. State of J&K
[(1971) 2 SCC 715].)"
49. We may also refer to the decision of this Court in Pramod
Mandal v. State of Bihar [(2004) 13 SCC 150 ] where this Court
observed: (SCC p. 158, para 20).
"20. It is neither possible nor prudent to lay down
any invariable rule as to the period within which a test
identification parade must be held, or the number of
witnesses who must correctly identify the accused, to
sustain his conviction. These matters must be left to the
courts of fact to decide in the facts and circumstances of
each case. If a rule is laid down prescribing a period
within which the test identification parade must be held, it
would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear
clue about their identity, they being persons unknown to
the victims. They, therefore, have only to avoid their
arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as
rape. The offender may be unknown to the victim and the
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case depends solely on the identification by the victim,
who is otherwise found to be truthful and reliable. What
justification can be pleaded to contend that such cases
must necessarily result in acquittal because of there being
only one identifying witness? Prudence therefore
demands that these matters must be left to the wisdom of
the courts of fact which must consider all aspects of the
matter in the light of the evidence on record before
pronouncing upon the acceptability or rejection of such
identification."
50. The decision of this Court in Malkhansingh case
[(2003) 5 SCC 746]: and Aqeel Ahmad v. State of U.P.
[(2008) 16 SCC 372 ] adopt a similar line of reasoning.
24. Further, the Hon'ble Apex Court in the case of Prakash Vs. State of
Karnataka (2014) 12 SCC 133 has held as under :-
''15. An identification parade is not mandatory nor can it be
claimed by the suspect as a matter of right..The purpose of pre-trial
identification evidence is to assure the investigating agency that the
investigation is going on in the right direction and to provide
corroboration of the evidence to be given by the witness or victim
later in court at the trial. If the suspect is a complete stranger to the
witness or victim, then an identification parade is desirable unless
the suspect has been seen by the witness or victim for some length
of time. In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was
held: (SCC pp. 751-52, para 7)
"7. ... The identification parades belong to the
stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon the
accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact."
25. Further, the Hon'ble Apex Court in the matter of Mukesh & another
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Vs. State (NCT of Delhi) & Others, (2017) 6 SCC 1, has held as under:-
"143. In Santokh Singh v. Izhar Hussain, it has been observed that
the identification can only be used as corroborative of the
statement in court.
144. In Malkhansingh v. State of M.P., it has been held thus:
"7. ... The identification parades belong to the stage
of investigation, and there is no provision in the Code of
Criminal Procedure which obliges the investigating
agency to hold, or confers a right upon the accused to
claim a test identification parade. They do not constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. ..."
And again:
"16. It is well settled that the substantive evidence is the
evidence of identification in court and the test
identification parade provides corroboration to the
identification of the witness in court, if required.
However, what weight must be attached to the evidence
of identification in court, which is not preceded by a test
identification parade, is a matter for the courts of fact to
examine. ..."
26. In the present case, PW-5 Archna, PW-6 Omprakash and PW-17
Sohani identified the appellant during the recording of statements before the
trial court and PW-5 and PW-6 identified the appellant- Kishorerao in
identification parade during the investigation. In this regard, PW5, PW6 and
PW-17 are intact in their cross-examination and no contradictions and
omissions were found in the evidence of these witnesses. So far as
substantive evidence is concerned, PW-5. PW-6 and PW-17 have identified
the appellant in court and PW-5 and PW-6 also identified him in
identification parade during course of investigation so considering the
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evidence of these witnesses, in the considered opinion of this Court, there
are sufficient evidence against the appellant-Kishorerao in this regard.
27. In view of the foregoing discussion, in the considered opinion of this
Court, the trial court has rightly believed the evidence of PW-5, PW-6, PW-
17 and identification parade done by executive magistrate during
investigation in this regard. So no interference is made out with the findings
of the trial court in this regard as the presence of the appellant-Kishorerao in
the crime is proved.
28. Learned counsel for the appellant-Kishorerao submits that
identification of the articles was not duly proved. He submitted that PW-15
Munnalal has admitted in cross-examination that articles were brought by
the police in open condition and PW-5 Archna and PW-6 Omprakash came
with police with articles and police men went for bringing similar articles for
identification and at that time, PW-5 Archna and PW-6 were sitting with
him. In this regard, considering the evidence of PW-15, it is found that PW-
15 Munnalal was intact in his cross-examination. He never stated that seized
articles were shown to PW-5 Archna and PW-6 before identification. So
evidence of PW 15 is reliable in this regard.
29. PW-18 arrested the appellant- Kishorerao and seized camera and
mobile and golden articles on the basis of the memorandum given by
appellant- Kishorerao to him and also seized Katta and knife and 2 rounds of
Kaartoos. Evidence of AW-18 was substantially unrebutted. These seizure
was supported by PW-12. Considering the evidence of PW-12 and PW-18, it
is found that there is no substantial contradiction and omission in their cross-
examination so considering the evidence of PW-18 and PW-12 in this
regard, they are are found intact. There is no reason to discard them. So in
view of the aforesaid, in the considered opinion of this Court, appellant-
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Kishorerao was identified by PW5, PW6 and PW-17 and looted articles were
seized from him so it is found proved that appellant-Kishorerao is guilty of
committing the offence as aforesaid and trial court has not committed any
error in holding the appellant - Kirshorerao guilty. Hence, the appeal
(Cr.A. No.1144/2011) filed by the appellant - Kishorerao is dismissed.
30. Learned counsel for the appellant - Mukesh in Cr.A. No.893/2011
has argued that Mukesh was not identified by any of the witnesses and
seized articles were not not produced before the trial court during trial. It is
true that PW-5, PW-6 and PW-17 have not identified the appellant- Mukesh
so identity of the appellant- Mukesh was not proved by the prosecution.
Appellant-Mukesh was held guilty by the trial court on the basis of the
recovery of the looted articles. The looted articles were not produced before
the trial court during recording of the evidence by the prosecution witnesses.
31. In the present case, perusal of the evidence adduced in proof of the
circumstances against appellant - Mukesh, it is found that he was not
identified by any of the prosecution witnesses so his presence at the time of
the commission of the offence is not proved. Prosecution has also failed to
establish that seized articles were not or could not be tampered before
keeping in Maalkhaana. Evidence was not led by the prosecution to indicate
as to what mark was given in the seal and seal was intact. Seized articles
from appellant Mukesh were not produced and exhibited during trial for the
reasons best known to the prosecution and unknown to the court. In view of
the aforesaid discussion, in lack of this infirmity and not identification of
appellant- Mukesh by prosecution witnesses, we are unable to sustain the
conviction of appellant- Mukesh.
32. In view of the aforesaid discussion, the appeal (Cr.A. No.893/2011)
filed by the appellant- Mukesh is allowed. He is acquitted from all the
NEUTRAL CITATION NO. 2024:MPHC-IND:24084 --16-
charges. The impugned judgment so far as the appellant - Mukesh is
concerned is set aside. The appellant- Mukesh is on bail. His bail bonds shall
stand discharged.
33. Copy of this judgment along with the record of the trial court be sent
to the trial court for information and necessary action. The appellant, who is
serving jail sentence, he be intimated about the outcome of this appeal
through Superintendent of Jail and a copy of the judgment be also supplied
to him through Superintendent of Jail.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
N.R.
