Madhya Pradesh High Court
Dharam Singh vs The State Of Madhya Pradesh on 21 January, 2025
Author: Anuradha Shukla
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
1 CRA-475-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 21st OF JANUARY, 2025
CRIMINAL APPEAL No. 475 of 2011
DHARAM SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vishal V. R. Daniel - Amicus Curiae for the appellants.
Shri Akshay Namdeo - Government Advocate for the State.
Reserved on : 04.12.2024
Pronounced on : 21.01.2025
JUDGMENT
Per: Justice Smt. Anuradha Shukla
The appellants herein have preferred this appeal against the judgment
dated 13.1.2011 passed by the First Additional Sessions Judge, Chhatarpur,
in Sessions Trial No.239/2008 whereby the appellants were convicted for the
offence of Section 396 of IPC and were sentenced to life imprisonment with
fine of Rs.1,000/-. They were also convicted for the offence of Section
25(1B)(a) of Arms Act and were sentenced to rigorous imprisonment for two
years with fine of Rs.500/-. Additionally, a term of imprisonment was
awarded in case of non-payment of fine.
2. Brief facts relevant for the decision of this appeal are that complainant
of this case, namely Lala Yadav, and his parents were the residents of village
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
2 CRA-475-2011
Maharajpur where they had a private temple which was located nearby their
residential house; in the intervening night of 8th and 9th June, 2008 all the
three persons were sleeping outside their house on separate cots and the
temple was locked from outside; around 1:00 a.m. complainant Lala Yadav
heard the noise of breaking open something but before he could realize the
situation, he was surrounded by five assailants; they forcibly gagged his
mouth and assaulted him with lathis and also with blunt part of the gun
causing him injuries; meanwhile, the other assailants were busy in breaking
open the gate of temple; they all thereafter threw the complainant in a dry
well located nearby; ten minutes later his father Sukhdeen and again after
fifteen minutes his mother Shivkali were also thrown into that well where
they both succumbed to their injuries; from inside the well the complainant
heard the noise of breaking open the door of temple for sometime but later
there stood silence.
3. In the morning around 6:00 a.m. complainant Lala Yadav shouted for
help and upon hearing them, the villagers rescued him from the well; the
dead bodies of his parents were also recovered from there; complainant Lala
Yadav reported the matter to the police; he was medically examined and the
post-mortem of dead bodies was conducted; senior scientist from FSL unit of
Chhatarpur examined the spot and prepared a report; the weapons and other
items were recovered; on 14.6.2008, appellant no.1 Dharmsingh was arrested
and interrogated; an idol of God as well as a firearm was recovered upon his
information from the house of Nirmala Singh; it was revealed that appellant
no.2 Rakesh Singh alias Raju Pawar was also involved in the commission of
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
3 CRA-475-2011
crime and after his arrest and interrogation, another idol of God along with a
32 bore revolver was recovered; appellants along with co-accused persons,
namely Lala alias Jagannath and Sanjay Shukla, were charge-sheeted and the
trial was held. Upon its conclusion, the appellants Dharmsingh and Rakesh
Singh were convicted and sentenced as discussed earlier while co-accused
persons Lala alias Jagannath and Sanjay Shukla were acquitted of all the
charges.
4. The grounds raised in this appeal are that the impugned judgment is
against the facts and evidence and, therefore, it is bad in the eyes of law; the
identification of appellants and the articles seized was not proved
convincingly; the FIR was highly doubtful for the reason that it was ante-
timed and the statements of complainant Lala Yadav (P.W.13) were also
highly doubtful as they were full of contradictions and omissions. It has also
been submitted that on same set of evidence, other accused persons were
acquitted by the trial court. A request has, therefore, been made to allow the
appeal and acquit the appellants.
5. State has opposed this appeal claiming that appellants were involved in
the commission of double murder and also causing injuries to complainant
Lala Yadav (P.W.13) while committing dacoity. It was, therefore, requested
to dismiss this appeal.
6. Counsel for both the parties have been heard and the record has been
perused.
7. FIR, Ex.P-27, in this case was registered against ten unknown persons
and it reveals that the incident occurred in the night of 9.6.2008 between 1:00
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
4 CRA-475-2011
a.m. and 2:30 a.m. and the report was made to the police on 9.6.2008 itself at
around 7:30 a.m. From the facts narrated earlier, it can be drawn that though
the FIR was lodged against ten unknown persons but only five of them came
near complainant Lala Yadav and rest were at a distance, engaged in
breaking open the lock of temple; therefore, before being thrown into the
well, complainant had the occasion to see only five members of dacoit-gang
while other dacoits were at a distance; resultantly, he neither saw nor could
identify these remaining gang members. Spot-map, Ex.P-19, shows that the
cot of complainant was at a significant distance from the temple gate and
similar layout is shown in the map prepared by senior scientist from FSL
mobile unit of Chhatarpur, which has been marked as Ex.P-28. From this, it
can be gathered that complainant Lala Yadav (P.W.13) had although lodged
the FIR against ten unknown persons but he had the occasion to see only five
of them and his statements cannot be relied upon about the number and
identity of remaining dacoits.
8. In his court testimony, Lala Yadav (P.W.13) has claimed that he saw
appellant Dharmsingh along with 2/3 other persons giving a beating to the
father of this witness and they were demanding keys of temple gate. He has
further stated that when he went to his father to protect him, the assailants
gave him too a beating and after forcibly throwing him on the parapet wall of
the well they later threw him inside it. Admittedly, complainant Lala Yadav
(P.W.13) did not personally see the remaining part of incident as he claims
that he regained his consciousness only when the bodies of his parents were
thrown into the well.
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
5 CRA-475-2011
9. From this, it clear that complainant Lala Yadav did not see the entire
incident and he also did not have occasion to see and identify all the ten
members of dacoit-gang. From the prosecution story, it is also clear that none
of the other prosecution witnesses was present on the scene of crime during
its commission. Although Kripal Ahirwar (P.W.2), Pappu (P.W.3), Hirasingh
(P.W.6) and Shivcharan (P.W.8) were the villagers, but their testimony did
not help to prove the involvement of appellants in the questioned crime. Dr.
S. Prajapati (P.W.1) had medically examined complainant Lala Yadav and
Dr. J. P. Nayak (P.W.11) had conducted the post-mortem of deceased
persons but their testimony only proved the injuries caused to victims and
not the fact that offence was committed by the appellants. Natthu (P.W.4)
and Halke (P.W.5) were the witnesses to memorandum and seizure regarding
the proceedings held in reference to accused Lala alias Jagannath, who was
acquitted by the trial court itself. Brijbhan Singh (P.W.7), Anil (P.W.9) and
Sub-Inspector Umrao Singh (P.W.15) were the witness regarding similar
proceedings held in reference to accused Sanjay Shukla, who too was
acquitted by the trial court, and the witnesses. Therefore, testimony of these
witnesses have no relevance in this criminal appeal. Witnesses Satyendra
Tiwari (P.W.10) and Mahaprasad Yadav (P.W.12) have given testimony on
formal aspect of investigation.
10. Dr. Azad Shrivastava (P.W.14), senior scientist of FSL mobile unit of
Chhatarpur, prepared a report, which is Ex.P-28. This report and his
statements prove the fact that he found clews about commission of murder
and theft by breaking open the door of temple but his observation had its
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
6 CRA-475-2011
own limits, therefore it is silent about the identity of persons who committed
the crime.
11. Discussion undertaken so far reveals that besides the testimony of
complainant Lala Yadav the prosecution has not been able to establish its
case on the basis of direct testimony. Another facet of investigation is
recovery and identification proceeding. Tahsildar K. L. Kori (P.W.16)
conducted the identification proceedings regarding appellant no.1
Dharmsingh. His memo is Ex.P-29. Another Tahsildar Dinesh Shukla
(P.W.20) conducted the identification proceedings of articles and prepared
the identification memo, Ex.P-33. Additional Tahsildar Satish Awasthi
(P.W.17) had conducted similar proceedings regarding Nirmala Singh but
she was not on trial before the court below. From the testimony of K. L. Kori
(P.W.16) and Dinesh Shukla (P.W.20), prosecution has attempted to
establish that appellants Dharmsingh and Rakesh Singh alias Raju Pawar
were involved in the commission of crime. Interestingly, name of appellant
Rakesh Singh alias Raju Pawar is not mentioned in any of the identification
memo prepared by Tahsildar K. L. Kori (P.W.16). Further, only appellant
Dharmsingh was identified in this test identification parade by complainant
Lala Yadav. This shows that prosecution failed to establish its case against
appellant Rakesh Singh alias Raju Pawar through test identification parade
despite the fact that he was not named in the FIR.
12. The evidence relied upon by prosecution against appellant Rakesh
Singh alias Raju Pawar is the seizure of idol of Lord Krishna. For this, the
identification memo prepared is Ex.P-33 and it is proved by Dinesh Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
7 CRA-475-2011
(P.W.20) but the important aspect of this proceeding is that only one idol was
placed before complainant Lala Yadav for the purpose of identification and
no other idol was available there to test whether complainant Lala Yadav was
able to identify the correct idol among the numerous. Further, there is
contradiction in the description of idol given in seizure memo, Ex.P-8, and
identification memo, Ex.P-13. Interestingly, no description of idol was given
in the FIR or at any later stage of investigation by complainant party. The
availability of an idol of God is a normal feature in any Hindu household and
recovery of an idol from the place identified by accused cannot connect him
with the crime unless it is shown that the same idol was stolen or looted. In
the absence of any evidence to prove the identity or the special features of
stolen idol, mere recovery or seizure would not establish the crime against
appellant Rakesh Singh alias Raju Pawar.
13. Tahsildar Dinesh Shukla (P.W.20) has given similar testimony
regarding the identification of idol of Lord Radha and the prosecution case is
that the same idol was removed from the temple and recovered upon the
information given by appellant Dharmsingh. FIR, Ex.P-27A, reflects that the
octo-alloy (Asthdhatu) idols of Lord Radha, Lord Krishna and Lord Baldau
were removed from the temple during dacoity. Besides this, no other
description has been given in the FIR or at any subsequent stage of
investigation and no other idol of almost identical features was mingled
during the identification proceedings to test the ability of complainant about
identifying the correct idol belonging to him.
14. Learned counsel for the appellants has drawn the attention of this Court
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
8 CRA-475-2011
to the statements of complainant Lala Yadav regarding features of stolen
idols and their dissimilarity with the idols seized during investigation. The
idols which were identified by complainant Lala Yadav were in damaged
condition. Further, the colour of idol of Lord Krishna was not the same as
described in seizure memo. The "bansuri" (flute), which was originally along
with the idol, was not there when the idol was produced before the Court.
The complainant gave no specific identification features to claim that the
idols belonged to him. On the basis of this weak kind of evidence regarding
identification of property recovered on the alleged information given by
appellants, the prosecution case cannot be considered as proved.
15. Appellant Dharmsingh was correctly identified during the test
identification parade by complainant Lala Yadav and for this, prosecution
has placed reliance on the identification memo, Ex.P-29, and the testimony
of Tahsildar K. L. Kori (P.W.16). It is evident from the arrest memo, marked
as Ex.P-36, that appellant Dharmsingh was arrested on 14.6.2008 but the test
identification parade for his identification was conducted on 14.8.2008 i.e.
almost two months after his arrest. No evidence has been led to establish that
appellant Dharmsingh was being produced before the Court during this
period under mask. Complainant Lala Yadav (P.W.13) has claimed in para
21 of his statements that he was knowing appellant Dharmsingh by name as
he was acquainted with this appellant from before. If there was any such
acquaintance, then it was for complainant Lala Yadav to explain why the FIR
did not mention the name of Dharmsingh. He was cross-examined in para 7
for not mentioning the name of this appellant in FIR but he insisted on the
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
9 CRA-475-2011
fact that appellant Dharmsingh was known to him prior to the incident and he
had named him in the FIR. Contrary to it, FIR, Ex.P-27A, does not mention
the name of any dacoit. Raamveer Singh Sikarwar (P.W.18), who was Thana
Prabhari and had scribed the FIR, has admitted in para 7 that name of any
dacoit was not disclosed by the complainant when FIR was written. Ex.P-29
is the test identification parade memo and it suggests that complainant Lala
Yadav identified appellant Dharmsingh for the reason that this appellant did
not have four of his upper teeth and the said appellant was also identified
through his face, but during court testimony complainant Lala Yadav
(P.W.13) has given a totally different version wherein he claimed that he
identified appellant Dharmsingh because the latter had four fingers of his
right hand amputated.
16. From the above facts, it is established that the evidence of prosecution
regarding the identification of person and also the recovered articles suffers
from infirmity and, therefore, no credence can be given to this piece of
evidence for believing the prosecution story.
17. Based on foregoing discussion, we are of the considered opinion that
prosecution has failed to prove the culpability of appellant Dharmsingh and
Rakesh Singh alias Raju Pawar in the alleged offence of dacoity. It is
although claimed by prosecution that the firearms were recovered from these
two appellants but these recoveries were not personally made from the
appellants. Both the firearms were recovered from the house of Nirmala
Singh. Though it is claimed that the place of recovery was disclosed by the
present appellants, but witnesses to memo of Section 27 of the Indian
NEUTRAL CITATION NO. 2025:MPHC-JBP:2670
10 CRA-475-2011
Evidence Act have not given credible evidence to support this claim.
18. In the light of foregoing discussion, the appeal is allowed and the
impugned judgment is set aside. The appellants are in jail. They be released
forthwith, if not wanted in any other case and the fine amount, if any,
deposited by the appellants be refunded to them.
19. Let a copy of this judgment along with its record be send to the trial
court for information and necessary compliance. A copy of the same be also
send to the concerned jail authority for ensuring immediate release of
appellants.
20. This Bench appreciates the valuable assistance extended in this case by
Shri Vishal V. R. Daniel, learned Amicus Curiae .
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
ps
PRASHANT SHRIVASTAVA
2025.01.22 10:53:17
+05'30'
