Haseeb @ Guddu vs State of Madhya Pradesh

This judgment shall govern the disposal of Criminal Appeal No.204/1999 [Haseeb @ Guddu vs State of MP] & Criminal Appeal

No.245/1999 [Ritesh vs State of MP] as they arise out of the common judgment of conviction and order of sentence dated 21.1.1999 passed by

the Additional Sessions Judge Jaora, District Ratlam in Sessions Trial No.170/1997.

These appeals under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as ''''Cr.P.C'''') have been fled being

aggrieved by the judgment of conviction and the sentence dated 21.1.1999 passed by the Additional Sessions Judge Jaora, District Ratlam in

Sessions Trial No.170/1997 convicting the present two appellants, namely, Haseeb @ Guddu and Ritesh for the charge of Section 392 of the

Indian Penal Code (hereinafter shall be referred to as ''''I.P.C'''') and sentencing them to undergo rigorous imprisonment for fve years and to pay a

fne of Rs.500/- in default to undergo rigorous imprisonment for three months each and also convicting them for the charge of Section 397 of the

I.P.C and sentencing them to undergo rigorous imprisonment for seven years and to pay a fne of Rs.500/- in default to undergo rigorous

imprisonment for three months each.

The case of the prosecution is that on 27.1.1997, the complainant Ashok (PW.5) had gone from Neemuch to Jaora in connection with the

business. After fnishing his work, he boarded on a Jeep of Bhanwar bearing registration No.MP-14/1733 for proceedings towards Mandsaur

alongwith a briefcase having Rs.7000/- cash in it. When the said Jeep reached near the culvert in between the Village Richhachanda and Parwalia,

two persons stopped it and after showing Deshi Katta and a knife, they snatched the briefcase of complainant Ashok and ran away towards the

forest area.

The report of the incident was lodged by complainant Ashok (PW.5) and it was reduced in writing by Sub Inspector Prempal Singh (PW.4) of

Police Station Kalukheda vide Exhibit P/2 at Crime No.9/97 whereupon the ofence under Section 392 of the I.P.C was registered. When the

present two appellants were taken into custody in some other case, Shahjama (PW6) prepared their arrest memo vide Exhibit P/5 & P/6 and

thereafter their memorandum was recorded under Section 27 of the Indian Evidence Act on 9.6.1997. The Test Identifcation Parade of appellants

was conducted on 13.6.1997 by H.O.Bhindwal (PW.3) and they have been identifed by Bhanwar Singh (PW.2) and complainant Ashok (PW.5).

The Challan was fled in the Court of Judicial Magistrate Jaora, District Ratlam but as the case was triable by the Court of Sessions, therefore, it

was committed to the Court of Sessions fromwhere it was received by the Additional Sessions Judge Jaora, District Ratlam for trial where the

charges of Sections 392 and 397 of the I.P.C were framed against the present two appellants and one Fazil @ Farukh.

The appellants have abjured their guilt and taken a defence of false implication. The prosecution examined as many as six witnesses in support of

their case but the accused persons did not examine any witness in support of their defence.

The Trial Court relying upon the testimony of Bhanwar Singh (PW.2), complainant Ashok (PW.5) and the Test Identifcation Parade (Exhibit

P/1) convicted the appellants and directed them to undergo the sentence as hereinabove described.

Learned counsel representing the appellant Haseeb @ Guddu and learned amicus curiae representing the appellant Ritesh have strenuously

urged that the conviction of appellants is not based on due appreciation of the evidence brought on record by the prosecution. It is a case wherein

there was no doubt against the present two appellants regarding commission of the ofence. They were taken into custody with respect to the

present ofence because they were already in custody in connection with some other ofence. After taking them into custody, the memorandum of

Section 27 of the Indian Evidence Act was prepared on 9.6.1997 and their Test Identifcation Parade was conducted on 13.6.1997, which is

completely doubtful. Merely on the basis of the Test Identifcation Parade without corroborating the same with any other evidence that includes the

recovery of the weapon and the looted articles, they have been convicted by the Trial Court. In the alternative, it is urged that in case no recovery

of the weapon allegedly used in commission of the ofence, is made by the prosecution then the ofence under Section 397 of the I.P.C cannot be

made out proving use of deadly weapon. In such circumstances, it is prayed that the present two appellants may be acquitted from the charge of

Section 397 of the I.P.C and sentence already undergone by them for the charge of Section 392 of the I.P.C would be sufcient in the facts and

circumstances of this case.

On the other hand, learned Government Advocate for the State has opposed the prayer as made by learned counsel for the appellants and

argued in support of the fndings as recorded by the Trial Court interalia contending that it is a case wherein as per the allegation of complainant

Ashok (PW.5), the present two appellants appeared to have used the weapon in commission of the ofence but looking to the contents of the frst

information report (Exhibit P/2), it is the duty of the defence to rebut such evidence. In absence thereto, the charge of Section 392 read with

Section 397 of the I.P.C has rightly been proved by the Trial Court, therefore, the conviction of appellants for the charge of Sections 392 & 397

of the IPC does not warrant any interference in the facts and circumstances of this case.

After having heard learned counsel for the parties and on perusal of the facts of this case, it appears that the incident took place on 27.1.1997

at about 2:30 pm in the noon. The frst information report was lodged against the unknown person vide Exhibit P/2. No evidence has been brought

on reco0rd by the prosecution as to how the prosecution raises any doubt regarding commission of the ofence by the present two appellants. It is

merely said by Shahjama (PW.6) that the present two appellants were taken into custody by the Police in connection with some other ofence and

he had prepared the formal arrest in this case on 15.5.1997. The basis of the said arrest is not available on record. It is a case wherein the present

two appellants were sitting in the Jeep of Bhanwar Singh and other persons were also there but evidence of none of those persons sitting in the

Jeep was recorded by the prosecution. The conviction is solely based on the Test Identifcation Parade (Exhibit P/1) conducted by H.O.Bhindwal

(PW.3) on 13.6.1997 identifying the present two appellants by Bhanwar Singh (PW.2) and complainant Ashok (PW.5). It is to be noted here that

the memorandum of Section 27 of the Indian Evidence Act was prepared on 9.6.1997 but no recovery is made from the present two appellants by

the Police that includes the looted articles as well as the weapon used in commission of the ofence.

In my considered opinion, the argument as advanced by learned Government Advocate for the State that mere allegation in the frst information

report regarding use of the weapon is sufcient and it is required to be rebutted is not acceptable. It is the duty of the prosecution to establish its

case bringing the charge of Section 397 of the I.P.C at home. However, the allegation of use of weapon must be supported by the corroborative

evidence because the frst information report itself cannot be treated to be a substantive piece of evidence. In that view of the mater, the recovery

of weapon, which is alleged to have been used in commission of the ofence of Section 397 of the I.P.C, has not been proved by the prosecution

establishing the ingredient to bring the said charge at home, therefore, the conviction of present two appellants for the charge of Section 397 of the

I.P.C is hereby set aside.

Insofar as the conviction of the present two appellants for the charge of Section 392 of the I.P.C is concerned, it reveals that nothing is

available on record to connect the present two appellants with the commission of the ofence. But, the Test Identifcation Parade, which was

conducted on 13.6.1997 vide Exhibit P/1, has not been made doubtful by the accused persons, therefore, on account of identifcation of these two

appellants, which cannot be doubted looking to the cross examination made on Bhanwar Singh (PW.2), H.O.Bhindwal (PW.3), complainant

Ashok (PW.5), the Trial Court has rightly proved the charge of Section 392 of the I.P.C. In that view of the matter, the conviction of the present

two appellants for the charge of Section 392 of the I.P.C is is hereby maintained.

Appellant Haseeb alias Guddu remained in custody for 76 days during trial and in appeal, his jail sentence was suspended vide order dated

29.10.1999 but he was again taken into custody vide order dated 14.11.2014. Thus, appellant Haseeb alias Guddu has served the total jail

sentence of more than 3 years, 5 months & 24 days. Appellant Ritesh also remained in custody for 76 days during trial and in appeal, his jail

sentence was suspended vide order dated 12.5.2000 but he was again taken into custody vide order dated 12.3.2014. Thus, appellant Ritesh has

also served the total jail sentence of more than 4 years, 2 months & 6 days. However, the jail sentence already served by both the present

appellants for the charge of Section 392 of the I.P.C would be sufcient in the facts and circumstances of this case.

Resultantly, these appeals succeed and are hereby allowed in part. The conviction of appellants Haseeb alias Guddu and Ritesh for the charge

of Section 397 of the I.P.C stands set aside. The conviction of appellants Haseeb alias Guddu and Ritesh for the charge of Section 392 of the

I.P.C is hereby maintained. The jail sentence already served by them would be sufcient for the charge of Section 392 of the I.P.C, therefore, the

jail sentence with respect to the charge of Section 392 of the I.P.C is reduced to the period already undergone by them. Appellants are in jail.

They be set at liberty forthwith, if not required in other case.

At the end, it is my duty to record the words of appreciation in favour of the amicus curiae, who assisted the Court in the disposal of these

appeals, which are pending since 1999 and in which the appellants are in jail.