Bahadur Singh and Others vs State of M.P.

N.K. Gupta, J.—1. The appellants have preferred the present appeal being aggrieved with the judgment dated 27/02/2006 passed by Special Judge under Madhya Pradesh Dakaiti & Vyapharan Prabavit Kshetra Adhiniyam, 1981 (herein after referred to as ''M.P.D.V.P.K. Act'') Dist. Shivpuri in Special Case No. 02/2006, whereby, each of the appellant has been convicted of offence under section 393 r/w section 34 of IPC r/w section 398 of IPC and sentenced of seven years rigorous imprisonment with fine of Rs. 1,000/-. They have also been convicted of offence under section 11/13 of M.P.D.V.P.K. Act, but no separate sentence was passed for similar offence under section 11/13 of M.P.D.V.P.K. Act.

The prosecution case, in short, is that the complainant Ghanshyam Pathak (PW-1) an Advocate of Kolaras was coming back to Kolaras from village Rai on 02/11/2005. At about 3.30 Pm near the field of one Kuchmundia, one unknown person gave signal to stop the motorcycle, therefore, the complainant slowed his motorcycle, but when he found that person was unknown, he raised the speed of his vehicle. That person shouted "hold and assault", in the meantime two more persons came on the road and tried to stop the complainant. One culprit having Lohangi assaulted him on left back of the complainant, whereas, another person had shown the Katta (hand made pistol). The complainant raised alarm that he would run over his motorcycle upon the person who had shown the Katta (hand made pistol). However, in the meantime Sudhanshu Pathak (PW-2) brother of the complainant along with one Harish Bhargava came by another motorcycle from the back and, therefore, the culprits ran away. The complainant Ghanshyam Pathak (PW-1) had lodged an FIR Ex. P-1 on the same very day and thereafter the investigating officer R.B.S. Bhadoria (PW-9) sent the victim Ghanshyam Pathak (PW-1) for his medico legal examination and treatment. Thereafter, he went to the spot and examined various witnesses. On the same day, the appellants were found in the jungle of Sangwara. The dress descriptions of the culprits were similar as told by the complainant and therefore the I.O. arrested the appellant No. 1 Bahadur Singh and appellant No. 2 Soneram. One fire arm was recovered from the appellant No. 1 Bahadur Singh, whereas, one Lohangi was recovered from the appellant No. 2- Soneram. In the test identification parade the complainant identified the appellants. After due investigation, charge sheet was filed before the Special Court.

The appellants abjured their guilt. They did not take any specific plea in their statement and hence no defence evidence was adduced.

After considering the prosecution evidence, the trial court has convicted and sentenced the appellants as mentioned above.

I have heard learned counsel for the parties at length.

In the present appeal only two points are to be considered. Firstly, that an attempt to commit robbery was done with the complainant Ghanshyam Pathak (PW-1) after assaulting him with Lohangi and secondly whether the crime was committed by the appellants. The complainant Ghanshyam Pathak (PW-1), Sudhanshu Pathak (PW-2) & Harish Bhargava (PW-3) have stated that the complainant Ghanshyam Pathak (PW-1) was coming back to Kolaras on motorcycle then one person gave a signal to stop the vehicle and two other persons came out of bushes on the road. One had shown a Katta upon the complainant Ghanshyam Pathak (PW-1) and another person gave a blow of Lohangi on the back of the complainant Ghanshyam Pathak (PW-1). However, in the meantime Sudhanshu Pathak and Harish Bhargava reached to the spot on the second motorcycle and, therefore, the culprits ran away. The testimony of these witnesses is duly corroborated by timely lodged FIR Ex. P-1 which was lodged within one hour and five minutes, whereas, police station was four kilometres away from the spot. The testimony of these witnesses has also proved by Dr. H.V. Sharma (PW-8) who found contusion on the left side of the waist of the complainant Ghanshyam Pathak (PW-1) and gave his report Ex. P-12.

The learned counsel for the appellants has submitted that looking to the description of the incident, possibility may not be ruled out that one person tried to stop the complainant Ghanshyam Pathak (PW-1) and after getting his signal two persons came out of the bushes and assaulted the victim due to enmity of the culprit with client of the complainant Ghanshyam Pathak (PW-1), who is an Advocate. However, such contentions appear to be remote and it cannot be accepted. If the complainant was a target so that he should be injured by the culprits to take revenge then there was no problem to the culprit who had Katta to fire upon the complainant and they could cause injuries to the complainant Ghanshyam Pathak (PW-1). On the other hand, assault of Lohangi was done on the back of the complainant Ghanshyam Pathak (PW-1) when he did not stop his motorcycle, which clearly indicates that culprits were interested to stop the complainant and thereafter they could commit robbery with him.

The complainant Ghanshyam Pathak (PW-1) in the FIR Ex. P-1 has clearly mentioned that the person who gave a signal to the complainant stopped his motorcycle and shouted that the victim be assaulted and robbed and thereafter two other culprits came out of bushes. Under these circumstances it would be apparent that the culprits wanted to commit robbery with the complainant Ghanshyam Pathak (PW-1) and therefore, they tried to stop him. One of them gave a blow of Lohangi on the left waist of the complainant whereas, another had shown Katta. Hence, it cannot be said that no offence under section 393 read with section 398 of IPC is made out against the culprits.

The second important question is relating to identification of the accused persons. Out of three witnesses viz. Ghanshyam Pathak, Sudhanshu Pathak and Harish Bhargava all of them had stated that they saw the culprits and they gave the description of height, face and dresses of the culprits. However, the witnesses Sudhanshu Pathak & Harish Bhargava were not invited to identify the culprits in the Test Identification Parade arranged by Executive Magistrate Shri P.L. Gurjar (PW-10). The complainant Ghanshyam Pathak (PW-1) has accepted in para 5 of his statement that before arrival of his brother Sudhanshu Pathak and Harish Bhargava, the culprits had already disappeared. Hence, Sudhanshu Pathak and Harish Bhargava could not view the culprits. They are telling the description about the height, face and dresses of the culprits as told by the complainant Ghanshyam Pathak (PW-1) and, therefore, for identification of the culprits there is no role of these witnesses.

The Executive Magistrate P.L. Gurjar (PW-10) has accepted that he went to arrange the Test Identification Parade at Sub Jail Kolaras and he prepared the identification memo Ex. P-3. Other eight persons were present in the parade as provided by the concerned Jailor. However, the complainant Ghanshyam Pathak (PW-1) has accepted that all the persons sitting for identification were covered with blanket and the face of the appellants were already covered and he identified the appellants by putting his hand on their respective heads. For an appropriate identification it is for the authority to cover the entire body of the various persons with the bed sheet or blanket, but faces cannot be covered. If faces are covered then the identification done by the complainant Ghanshyam Pathak (PW-1) comes into doubt that he identified the culprits by fluke. In the present case, when the faces of the appellants were covered and faces of the remaining persons were not covered then it was a clear cut indication to the complainant to identify the appellants. Hence, description of identification parade as given by the complainant Ghanshyam Pathak (PW-1) indicates that the identification parade was not done according to the settled principle of identification.

Also the activities of the investigating officer Shri R.B.S. Bhadoria (PW-9) who arrested the appellants on the same day and recovered one Lohangi and a Katta from them are doubtful. According to Shri R.B.S. Bhadoria (PW-9) he went to the spot, traced the spot map (Ex. P-2), examined various witnesses and thereafter he went to search the culprits. Near Sangwara jungle he could get the appellants. He thought that the appellants were culprits because their dresses, faces and heights as told by the complainant in the FIR were similar and seizure memos were prepared on the spot. He did not give any explanation as to how the witnesses viz. Rameshwar Bhadoria (PW-4) & Neeraj Goswami (PW-5) who were residents of Kolaras were available to him at that time to witness the arrest & seizure memo. In arrest memos Ex. P-4 & P-5, it is mentioned that the appellants were arrested at about 10.30 Pm in the night. It is surprising that Shri Bhadoria (PW-9) located the culprits in the night at about 10.30 Pm in the jungle and two witnesses residents of Kolaras were available to him at the place of arrest. Looking to the time of arrest, seizure, etc. the explanation given by Shri Bhadoria cannot be accepted that the appellants could be located in the jungle. Near the spot, the appellants could be located before sun set or in the day light and if they were located at about 6.30 Pm then what was the reason that arrest memo was prepared at 10.30 Pm in the night, whereas, Neeraj Goswami (PW-5) a student has accepted that he found the crowd at a place of arrest then due to anxiety he went inside the crowd and found that the appellants were already arrested and thereafter he participated in the procedure of recovery, etc. Neeraj Goswami (PW-5) could see the crowd in the day light, if spot was out of township of Kolaras then being a lonely place out of any village or city there was no possibility of light so that the crowd could be gathered after arrest of the culprits and Neeraj Goswami (PW-5) could have visited near Shri Bhadoria (PW-9) when he saw the crowd. The entire procedure adopted by Shri Bhadoria (PW-9) clearly indicates that the appellants were arrested from different places. They were brought to the police station at about 10.30 Pm. Various memos were prepared by calling the witnesses of the Kolaras itself. Hence, Shri Bhadoria (PW-9) took the interested witnesses and his entire investigation relating to the seizure of fire arm or Lohangi comes in a doubt. It is highly doubtful that any weapon was found with any of the appellant or they could be located in a particular jungle near the place of incident.

When seizure, etc. is doubtful then possibility cannot be ruled out that arrested appellants were shown to the complainant on the same day and thereafter a formal Test identification Parade was arranged. If the evidence given by the complainant Ghanshyam Pathak (PW-1) is considered then he has claimed that due to accident he was in shock and he could not forget the faces of the culprits, but his evidence was recorded in presence of the appellants and he did not utter a single word that the appellants present in the dak had committed the crime. He could not say before the trial court that out of the appellants who had shown Katta or who had assaulted him with Lohangi. When blow of Lohangi was given from the back then possibility cannot be ruled out that the complainant Ghanshyam Pathak (PW-1) could not see the culprit who assaulted him with Lohangi. Under these circumstances, the identification of the appellants is highly doubtful. In the present case, the possibility cannot be ruled out that since it was a case of an Advocate, police could not take the risk or blame that it could not catch the culprits of such an incident and, therefore, the police would have arrested two persons and shown to the complainant Ghanshyam Pathak (PW-1) and thereafter arrest of them was shown. Since the factum of recovery of the weapon is doubtful and, therefore, by that factum no corroboration is available to the identification proceedings.

On the basis of aforesaid discussion, when identification of the appellants was highly doubtful, it could not be held that the appellants were the persons who tried to commit robbery with deadly weapon or assaulted the victim with Lohangi. The trial court has committed error in convicting the appellants of offence under section 393 r/w section 34 of IPC r/w section 398 of IPC and section 11/13 of M.P.D.V.P.K. Act. When a doubt is created then benefit of doubt is always to be given to the accused. Under these circumstances, the appeal filed by the appellants viz. Bahadur Singh and Soneram appears to be acceptable and, therefore, it is hereby allowed. The conviction as well as sentence recorded by the trial court against the appellants for offence under section 393 r/w section 34 of IPC r/w section 398 of IPC and section 11/13 of M.P.D.V.P.K. Act are hereby set aside. Each of the appellant is acquitted from all the charge.

It appears that the appellant No. 2 Soneram is in jail and, therefore, it is directed that he be released from jail by issuance of release warrant without any delay. The appellant No. 1- Bahadur Singh is on bail. His presence is no more required before this Court and, therefore, it is directed that his bail bond shall stand discharged.

Copy of this judgment be sent to the court below along with its record for information and compliance and to return the fine amount of the appellants, if it was deposited before the trial court.