Bharat Alias Sooraj Jain vs State Of Madhya Pradesh

This appeal has been filed under 374(2) of Cr.P.C on 26.02.2018 on behalf of appellant Bharat alias Sooraj Jain, against the judgment dated

07.01.2013 passed by Shri O.P. Tiwari, Additional Sessions Judge, Hoshangabad (M.P.) in Sessions Trial No.122/2011. By the order impugned, the

learned lower Court convicted the appellant for the offence punishable under Sections 328 and 379 of IPC and sentenced to undergo rigorous

imprisonment for 5 years with fine of Rs.1,000/- in Section 328 of IPC and 3 years rigorous imprisonment in Section 379 of IPC. It is also ordered that

if the fine amount of Rs.1,000/- is not deposited then the accused will serve six months additional imprisonment. Both the sentences shall run

concurrently.

It is submitted by the learned counsel for the appellant that the trial Court passed the judgment contrary to law and decided the case without proper

appreciation of evidence. In this case, no Test Identification Parade was conducted. The appellant was not present when the complainant was

examined before the Court, therefore, the Court below failed to conduct face to face identification parade. There was no witness or direct witness of

the occurrence. Therefore, it is prayed that the conviction and sentence passed by the learned lower Court be set-aside and the appellant be acquitted

from the aforesaid charges.

On the other side, State has strongly opposed the appeal and submitted that lower Court passed the judgment after proper appreciation of evidence.

The case is based on strong evidence. The accused having a criminal background and so many cases have been registered against him related to

same nature. Therefore, no interference is required in the judgment passed by the learned lower Court, hence appeal is liable to be dismissed.

It appears from the record that the complainant Jitendra Bhuyia (PW-6) was travelling in Katni Bhusawal passenger on 23.08.2000, and was going

to his home Khurd Morli Bihar, when the train arrived at Itarsi Station the appellant Bharat alias Sooraj came into the train and sat with the

complainant. After some time they became friend and they also eat together foote and bheege chane. During the course of chit-chat after some time

the accused brought a cup of tea for the complainant. When the complainant consumed the tea he became unconscious. When the train reached at

Katni Station the police found the complainant in unconscious condition, thereafter he was admitted in Katni Hospital by G.R.P. Police. Dr. Jyotsna

Batwe (PW-4) examined the complainant and given the report (Ex.P/4). She also admitted the complainant in the hospital for further treatment. The

complainant was unconscious when he became conscious on 23.08.2010 he lodged the First Information Report (Ex.P/1) at G.R.P. Katni.

A.S.I. B.M. Dwivedi (PW-1) registered the crime No.0/26/2010 under Sections 328 and 379 of IPC. The police found that the offence was

committed in the territorial jurisdiction of G.R.P. Katni, therefore, aforesaid FIR was sent to G.R.P. Itarsi where Crime No.169/2010 was registered

on 29.08.2010. During investigation police arrested the appellant and information given by the appellant was note down in Ex.P/4. The appellant

admitted his offence and he gave the information to the Police that he mix Antiwan tablet in the tea and when the complainant became unconscious he

theft Rs.6,000/- from his pocket and suitcase of the complainant. He also gave the information that he kept Rs.3,000/- in his residence at Indore.

Thereafter, police seized Rs.3,000/- from the possession of the appellant and prepared memo (Ex.P/5).

After Investigation the Police filed the charge-sheet before JMFC Itarsi on 28.03.2011 and JMFC registered the case as Criminal Case

No.328/2011. Because offence was tribal by the Sessions Court, therefore, the Magistrate committed the case to the Sessions Court on 08.04.2011.

On 21.04.2011 the case was received by Sessions Court Hoshangabad and on 29.04.2011 the case was made over to the Court of Additional Sessions

Judge to the Court of First Additional Sessions Judge, Hoshangabad.

Trial Court framed charges under Section 328 and 379 of IPC on 04.05.2011. During trial the prosecution examined B.M. Dwived (PW-1),

Tulsiram (PW-2), Dr. Jyotsna Batwe (PW-4), J.P. Pandey (PW-5), Jitendra Bhuyia (PW-6) and B.S. Chouhan (PW-7). No witness has been

examined as PW-3. The accused did not examine any witness in support of his defence. Thereafter on 07.03.2013 the trial Court passed the judgment

and held guilty appellant and also passed the sentence, which has been already mentioned in para No.1 of this appeal. The main point raised by the

appellant in this appeal is that no Test Identification Parade was conducted and face to face identification was also not done before the trial Court

because the appellant was not present at the time when the complainant was examined before the lower Court.

It is true that the Test Identification Parade was not conducted in this case. The Investigating Officer (PW-7) admitted this fact in para 3 of his

statement. Learned counsel for the appellant draws attention of this Court towards case law reported in (1997) 8 SCC 495 Shabad Pulla Reddy and

others Vs. State of A.P. In that case matter was related to offence under Sections 302/149, 148 and 449 of IPC. Test Identification Parade was

conducted after three or four months from the arrest of the accused person and no explanation was given by the prosecution. But in this case no

benefit can be given to the appellant. Because no Test Identification Parade has been conducted in this case, therefore, the question of delay does not

arises. In this case, complainant was having sufficient time to recognize the accused because they became friend at Itarsi station and spent

considerable time with each other. The complainant is an educated person having sharp memory, therefore, he was in position to identify the accused.

On 15.12.2011, the complainant was examined before the lower Court. It appears from the file of the trial Court that at the time of examination of

aforesaid witness, the defence counsel did not raise any objection regarding non production of accused or regarding identification of the accused. It is

also mentioned in the order-sheet that the accused was not produced from Bhopal jail and only his warrant was submitted to the Court. Advocate

Vinay Kushwaha was appeared before the Court and he duly cross-examined the witness. If the defence counsel did not raise any objection before

he cross-examined the witness, then aforesaid objection cannot be raised first time in this appeal.

Whether the identification of an accused for the first time in the court in absence of any test identification parade can be made the basis of

conviction ? Apex court said in Simon Vs. State of Karnatak, AIR 2004 SC 2775, that no hard and fast rule can be laid down. In the case of Roony

Vs. State of Maharastra, 1998 Cr.L.J. 1638, The Apex Court said that where the accused was known to the witness from an early period or where

the witness had a chance to interact with the accused or that, in a case, where the witness had an opportunity to observe the distinctive features of the

accused, his evidence of identification in the court, would be admissible. And non-holding of T.I. parade in such case is neither fatal not necessary.

It is also appeared from the evidence of Jitendra Bhuyia (PW-6) that after perusal of the photo pasted upon the arrest memo he identified the

accused and said that the person is same, who committed the incident with him. It is mentioned in his statement in hindi language that - “izdj.k esa

lyaXu vkjksih dk QksVks ns[kdj lk{kh dk dguk gS fd ;g ogh O;fDr gS ftlus esjs lkFk ?kVuk dkfjr dh Fkhâ€.†The clear photograph has been pasted

upon the arrest memo Ex.P-6 and anybody can recognize / identified the person and his face by perusal of aforesaid photographs. The complainant

was in the position to identify the accused by his photograph because he had spent sufficient time with the accused in the train. Witness had a chance

to interact with the accused and had an opportunity to observe the distinctive features of the accused. The evidence of complainant is found reliable.

In his cross examination, no ground has been raised for creating any suspicion. Therefore, his evidence is reliable upon the point that the accused was

the same person who given the tea and committed the offence of theft.

B.M. Dwivedi A.S.I., (PW-1) supported the FIR (Ex.P/1) and deposed that the report was written by him upon the information given by the

complainant Jitendra Bhuyia (PW-6). Dr. Jyotsna Batwe (PW-4) is the doctor who has also supported the case of prosecution. She deposed that on

20.08.2010 the complainant Jitendra Bhuyia (PW-6) was brought in the hospital by Constable Uma Shanker Dubey No.74 of G.R.P. Katni. She

deposed that the patient was travelling in the train and some poisonous substance was administered by him at about 07:00 pm. She admitted the patient

and referred to the opinion of medical specialist including further treatment. J.P. Pandey (PW-5) is the S.I of G.R.P, Itarsi who proves the registration

of original FIR (Ex.P/5-A). As per his statement offence was registered upon the basis of report No.0/26/2010 received from G.R.P. Katni.

Tulsi Ram (PW-2) is the witness of memo Ex.P-4 prepered under Section 27 of Evidence Act and the seizure Ex.P/5. He admitted his signatures

upon both the documents. He also support the fact that the information was given by the accused to the police that he administered some poisonous

substance in the tea of the complainant and took his money when became unconscious. As per prosecution case Rs.3000/- was seized from the

possession of the accused, which was kept in the house situated at Indore. Even the witness Tulsi Ram did not support the fact that money was seized

at Indore, but the evidence of B.S. Chauhan (PW-7) is found reliable on this point. Learned lower court discussed the statement of PW-7 and did not

find any reason to disbelieve the testimony of the aforesaid witness. If we see the statement of aforesaid witness then it appears that Ex.P/4 and P/5

are duly proved by his evidence. In his cross examination there is no reason is found to disbelieve the witness.

Therefore, it appears from the entire evidence that the trial Court has not committed any mistake by convicting the appellant for the offence

punishable under Sections 328 and 379 of IPC. As far as sentence is concerned, it appears from para-19 of the impugned judgment that as per the list

submitted with the challan seventeen other cases of the same nature have been registered against the appellant. Looking to the criminal record of the

accused it can be said that sentence passed by the lower Court is just and proper. Therefore, no reason has been found to interfere in the conviction

or sentence. Hence, this appeal having no force, is hereby dismissed.

One copy of this judgment be sent to the accused, who is in custody and one copy to the trial Court along with record.