Bhagwan Singh vs State of M.P.

This Criminal Appeal has been filed against the judgment and sentence dated 27-5-2009 passed by 1st Additional Sessions Judge, Vidisha in

Sessions Trial No. 203/2006 by which the appellant and the co-accused Diwan Singh have been convicted under Section 395 read with Section

397 of I.P.C. and have been sentenced to undergo the rigorous imprisonment for a period of 10 years and a fine of Rs. 5,000/-, with default

imprisonment.

The co-accused Diwan Singh had filed a separate Criminal Appeal which was registered as Cr.A. No.426 of 2006. An application was filed by

the co-accused Diwan Singh seeking permission to withdraw the appeal, accordingly, this Court by order dated 27.11.2017 permitted the

appellant Diwan Singh to withdraw the appeal and the appeal was dismissed as withdrawn. Thus, the facts of the case shall be considered in the

light of the allegations made against the appellant.

The case was called for number of times, but no one appeared on the behalf of the appellant. The appellant was never granted bail. Shri

Rishikesh Bohare, Advocate, who is in the panel of High Court Legal Aid Committee and has a vast experience of arguing criminal matters, is

present in the Court. He was requested to go through the record and argue on behalf of the appellant. Shri Bohare, Advocate, graciously accepted

the request made by the Court. He went through the record for near about 2 hours and argued the matter at length on behalf of the appellant.

The necessary facts for the disposal of the present appeal in short are that on 30.3.2006 at about 7:30 PM, near Talaiya Baba, along with other

co-accused persons who were total seven in number looted the complainant Brijesh Lodhi and his brother Shailendra Singh and took away their

gold ring, gold chain, an amount of Rs.1,53,000/-,three pass books of the banks, Bills of Medicine Point and while doing so, they caused injuries

to the victims by lathi, sticks etc.

The complainant Brijesh Lodhi, lodged a report that on 30-3-2006, at about 2:00 P.M. he went to State Bank of India situated in village Atari

Khejada along with his brother Shailendra Singh and Virendra Singh for depositing Rs.1,50,000. As the bank hours were over and the bank was

closed, therefore, he could not deposit the amount and came back to village Sihod. At about 7:00 P.M., he along with Shailendra, went towards

Vidisha on their Bullet Motor Cycle. When they reached near Talaiya Baba, all of a sudden 10-12 miscreants came in front of them. 2 miscreants

started assaulting them by lathis as a result of which, they fell down. The remaining miscreants, also started assaulting them. They dragged them

towards the agricultural fields. A threat to their life was extended. One person took the gold ring, gold chain, and an amount of Rs.10,000/-, and

another person took out the documents and an amount of Rs.1,53,000/- kept in the bag. The hands and legs of the complainant and his brother

were tied. In the meanwhile, another motorcycle came near the place of incident, as a result of which all the accused persons except two, went

towards the road and stopped the said motorcycle. Two accused persons were standing there in order to keep a watch over them. As the

attention of the accused had diverted, therefore, taking advantage of the situation, the complainant and his brother, somehow got themselves free

after opening their hands and legs and ran away. They reached near a temple and sent an information to the police station. By that time, Ajay

Sharma also came there as he and his father were also beaten by the miscreants. The complainant had seen two accused persons. On the report of

the complainant, the police registered the F.I.R. The victims were sent for medical treatment. Their M.L.C.s were received. The statements of the

witnesses were recorded and the spot map was prepared. The appellant and another were arrested and their confessional statements under

Section 27 of Evidence Act were recorded. A gold ring was recovered from the possession of the appellant which was got identified from the

complainant. The appellant was arrested and the police after completing the investigation filed a charge sheet against the appellant. Remaining

accused persons remained absconding. The co-accused Divan Singh was arrested at a later stage, therefore, a supplementary charge sheet was

filed against Divan Singh.

The Trial Court framed charges under Section 395 read with Section 397 of I.P.C. The appellant and co-accused abjured their guilt and

pleaded not guilty.

The Trial Court, after recording evidence, convicted the appellant and the co-accused Diwan Singh for offence under Section 395 read with

397 of I.P.C. and sentenced them to undergo the rigorous imprisonment of 10 years and a fine of Rs. 5000/- with default imprisonment.

Challenging the findings of conviction recorded by the Trial Court, it is submitted by the Counsel for the appellant, that the prosecution has failed

to prove the guilt of the appellant beyond reasonable doubt.

Heard the amicus curaie and the learned Counsel for the State.

The prosecution in order to prove its case, has examined Kailash Narayan (P.W.1), Chandrabhan Raghuvanshi (P.W.2), Smt. Saroj Singh

Parihar (P.W.3), Dr. R.L. Singh (P.W.4), Uma Shanker (P.W.5), Ajay Kumar Chaturvedi (P.W. 6), M.P. Niranjan (P.W.7), Shailendra Lodhi

(P.W.8), Brijesh Lodhi (P.W.9), Golu (P.W.10), Jitendra Tiwari (P.W.11), Virendra (P.W.12), D.S. Thakur (P.W.13), and Charan Singh Lodhi

(P.W.14).

Shailendra Lodhi (P.W.8), and Brijesh Lodhi (P.W.9), have stated in their evidence that on 30-3-2006, they had gone to deposit the amount

in the bank and they reached the bank at about 2:30-3:00 P.M. As it was a half day, therefore, the amount could not be deposited in the bank.

Thereafter, they went to village Sihod and after leaving their younger brother came to Vidisha. At a place in between Palaki and Tharra, 10-11

persons were standing along with lathi and sticks. They assaulted them by lathis, as a result of which, they fell down. They were dragged towards

the agricultural fields and snatched the bag which was containing Rs. 1,50,000/-. Shailendra was having Rs. 3000/- and Brijesh was having Rs.

5000/-, that too was taken away. The gold ring of Brijesh was also taken away. Their hands and legs were tied. At that time, they noticed one

more motor cycle coming on the road, therefore, after leaving two persons with them, the remaining persons went towards the road. As the

attention of the accused got diverted, therefore, taking advantage of the position, the victims ran away from the spot after getting themselves free.

The motor cycle which was coming was also attacked. Shailendra and Brijesh reached near a temple and some how informed the police.

Shailendra remained admitted in the hospital for near about 20-22 days. Thereafter, they came to know that an accused has been arrested. They

were called in a jail for identifying the accused. They identified the appellant Bhagwan Singh. The identification memo is Ex. P/3. These witnesses

were cross examined in detail, however, nothing could be elicited from their evidence, which may make their evidence unreliable or suspicious.

Uma Shanker (P.W.5) and Ajay Kumar Chaturvedi (P.W.6) are the two persons who were coming on a motor cycle. They have also

narrated the incident. However, the appellant was not got identified from these witnesses by the police, but Uma Shanker (P.W.5) and Ajay

Kumar Chaturvedi (P.W.6), identified by the appellant in the Court.

Chandrabhan Raghuvanshi (P.W.2) is a seizure witness, who has stated that the appellant Bhagwan Singh had made a confessional statement,

Ex. P.1 and vide seizure memo Ex. P.2, a gold ring was recovered at his instance.

The test identification parade of the gold ring was conducted by Jitendra Tiwari (P.W.11), who was the elected Councillor. This witness has

stated that the complainant Brijesh Lodhi (P.W.9) had identified his gold ring. The identification memo of gold ring is Ex. P.15.

Smt. Saroj Singh Parihar (P.W.3), was working on the post of Naib Tahsildar, Vidisha and had conducted the test identification parade of the

appellant Bhagwan Singh. The complainant Brijesh Lodhi (P.W.9) and Shailendra Lodhi (P.W.8) had correctly identified the appellant Bhagwan

Singh. The identification memo is Ex. P.3.

Dr. R.L. Singh (P.W.4) had medically examined the injured witnesses. On the body of Shailendra (P.W.8) total eight injuries were found and

his M.L.C. report is Ex. P.4. On the body of Brijesh Lodhi (P.W.9), total 7 injuries were found and his M.L.C. report is Ex. P.7. Three injuries

were found on the body of Uma shanker (P.W.5) and his M.L.C. report is Ex. P.8 and 4 injuries were found on the body of Ajay (P.W.6) and his

M.L.C. report is Ex.P.9. One Deendayal was also medically examined and as many as 5 injuries were found on his body and his M.L.C. report is

Ex.P.10. This witness vide Ex.P.5 and P.6 had given an information to the police regarding the fact that injured persons have been brought to the

hospital who have stated about the marpeet.

Thus, it is clear that victims Uma Shanker (P.W.5), Ajay Kumar Chaturvedi (P.W.6), Shailendra (P.W.8) and Brijesh Lodhi (P.W.9) were

looted by the accused persons and were caused injuries. Shailendra (P.W.8) and Brijesh Lodhi (P.W.9) had identified the appellant Bhagwan in

the test identification parade, Ex.P.3, conducted by the police.

It is submitted by the Counsel for the appellant that since, the appellant Bhagwan Singh was not got identified by the Police during the

investigation, therefore, his identification by Uma Shanker (P.W.5) and Ajay Kumar Chaturvedi (P.W.6) in the Court, cannot be relied upon. The

submission made by the Counsel for the appellant cannot be accepted and hence, rejected. The Supreme Court in the case of State of Rajasthan

Vs. Daud Khan reported in (2016) 2 SCC 607 has held as under :

Dock identification: Submissions and discussion

It was contended by Daud Khan that the three chance witnesses, PW 7 Mahabir Singh, PW 23 Narender Singh and PW 24

Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further

contended that no test identification parade (for short ""TIP"") was conducted and reliance could not have been placed only on their

dock identification.

No such argument was raised by Daud Khan either in the trial court or in the High Court and we see no reason to permit such an

argument being raised at this stage.

That apart, it was recently held in Ashok Debbarma v. State of Tripura that while the evidence of identification of an accused at a

trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of

evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and

reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In

arriving at this conclusion, this Court relied upon a series of decisions. Earlier, a similar view was expressed in Manu Sharma v. State

(NCT of Delhi).

In any event, there were two other witnesses to the shooting, namely, PW 11 Narendra Kumawat and PW 19 Suraj Mal who

were local residents and knew Nand Singh and Daud Khan and could easily identify them.

Five witnesses have testified to the events that took place at Bathra Telecom on the night of 19-6- 2004. We see no reason to

disbelieve any of them, particularly since they have all given a consistent statement of the events. There are some minor discrepancies,

which are bound to be there, such as the distance between the gun and Nand Singh but these do not take away from the substance of

the case of the prosecution nor do they impinge on the credibility of the witnesses.

Thus, it is clear that where the evidence of the witnesses is credible, then the identification of the accused in the Court, cannot be discarded merely

on the ground that the police had not conducted any T.I.P. during investigation. Thus, the recovery of gold ring from the appellant, couple with the

fact that the said gold ring was duly identified by Brijesh Lodhi (P.W.9) as well as the fact that Shailendra (P.W.8) and Brijesh Lodhi (P.W.9) had

not only identified the appellant in the test identification parade conducted by the police but the appellant was identified by Uma Shanker (P.W.5),

Ajay Kumar Chaturvedi (P.W.6), Shailendra (P.W.8) and Brijesh Lodhi (P.W. 9) in the Court also. The appellant has not claimed that the gold

ring recovered from him, belongs to him.

Thus, in view of the facts and circumstances of the case, this Court is of the considered opinion, that the prosecution has proved the guilt of the

appellant for offence under Sections 395/397 of I.P.C. beyond reasonable doubt. Accordingly, the appellant Bhagwan Singh is held guilty of

committing offence punishable under Section 395/397 of I.P.C.

So far as the question of sentence is concerned, the Trial Court has sentenced him to undergo the rigorous imprisonment of 10 years and a fine

of Rs. 5000/- with default imprisonment. The appellant was arrested on 7-7- 2006 and during trial, he was not granted bail. Even after conviction,

the appellant Bhagwan Singh was not granted bail by this Court. Thus, it appears, that Bhagwan Singh must have undergone the entire jail

sentence. Thus, the judgment and sentence dated 27-5-2009 passed by 1st Additional Sessions Judge, Vidisha in Sessions Trial No. 203 of 2006

is hereby affirmed.

The appeal fails and is hereby dismissed.