Jitendra Alias Kalli vs State Of Madhya Pradesh

1- Regard being had to the commonality of the facts and arising out of the same judgment dated 10-11-2017 by the Special Judge, Morena in S.T.

No.44/2015. Common judgment has been passed and for convenience sake, facts of Criminal Appeal No.5845/2017 have been taken.

2- Both these appeals arise out of the judgment dated 10-11-2017 passed by the Special Judge, Morena wherein the appellants have been convicted

for the offence under Sections 148, 307/149 of IPC read with Section 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra

Adhiniyam, 1981 (hereinafter referred to as ‘the MPDVPK Act’) and Section 25(1-b) (a)/27 of Arms Act and sentenced to 2 years RI with

fine of Rs.1,000/-, 7 years RI with fine of Rs.5,000/- and 3 years RI with fine of Rs.1,000/- each respectively with default stipulation.

3- As per the case of the prosecution, the complainant/Sub Inspector Hitendra Singh Rathore, Police Station Saraichhola, District Morena received an

information during patrolling on 15-02-2009 that notorious Dacoit Rajendra Gurjar along with his companions namely Samokhan, Jitendra, Surendra,

Ramdeen, Ramsewak, Ranajeet, Komar Gurjar, Machal Singh, Karua and Harveer etc. have abducted and taken one person latched in chain with

them in Naduapura ravines of Chambal and on such tip of informer, complainant along with other 10 persons of police patrolling party (total 11 in

number as per FIR), reached the spot and divided them in two parties to nab the culprits. As per contents of FIR, party No.1 comprised of

Complainant Hitendra Singh, PSI Anil Bhadoriya, Head Constable Siyaram Dhakad, Head Constable Bharat Singh, Constable Ramavtar Bohre,

Constable Vishambhar and party No.2 under the command of Sub Inspector Akhilesh Puri Goswami with PSI Narawi, Head Constable Shivram,

Constable Kok Singh and Ramavtar Singh. After division of police parties, complainant briefed both members of the parties by which party No.2 was

directed to encircle the dacoits from eastern direction whereas party No.1 moved from western side. They had searching night vision with them and

through that party No.1 saw one dacoit with rifle in his hands placed over a mound and was guarding against any intruder, therefore, he was

challenged by the police party to show his identity and reason for his presence in ravines.

4- In reply thereof, he shouted with the name of Mukhiya Rajendra, Banti, Jitendra, Samokhan that police has arrived and cried for firing over police.

Thereafter, dacoits opened indiscriminate fire which endangered the lives of police personnel. Complainant briefed party No.2 over wireless set and

moved in the direction of dacoits. He also commanded the dacoits to surrender but in reply they opened fire, therefore, police personnel also opened

fire and moved further towards their direction. Head Constable Siyaram Dhakad and Ramavtar caught hold of three dacoits who tried to escape from

their grip and to save themselves, they fired over these two police personnel through their Katta in their hands but could not succeed. Other dacoits

escaped and above-mentioned three persons came into the hold of police party. On interrogation; they referred their names as (i) Jitendra Gurjar

(caught by Sub Inspector Hitendra Singh Rathore), (ii) Ramsewak (caught by Head Constable Siyaram) and (iii) Ramdeen (caught by Constable

Ramavtar Bohre).

5- 315 bore Katta along with two live cartridges were seized from Jitendra Gurjar vide Ex-P/1, one 315 bore Katta along with two cartridges from the

possession of dacoit Ramsewak Gurjar vide Ex-P/2 and 315 bore Katta with one live cartridge from the possession of dacoit Ramdeen vide Ex-P/3.

During search one Katta with plastic grip and other provisions like wheat, pulses, rice, match box and lock and key etc. were seized vide Ex-P/4.

Arrest memos were prepared on the spot and other accused persons were later on arrested.

6- When this process was going on, one person screamed for help and police party tracked down the person and retrieved one person who referred

his name as Sushil Rathi, resident of Morena and he was the abductee/victim in the case. He was recovered vide Ex-P/8 and after return from the

spot, FIR at Police Station was registered vide Ex-P/13. During investigation, statements of witnesses Sushil Rathi, Sub Inspector Akhilesh Puri

Goswami, Anil Singh Bhadoriya, Roman Singh Narawi, Head Constable Bharat, Kok Singh, Shivram Singh and constable Ramavtar Bohre were

taken. Thereafter charge-sheet was filed in the Court.

7- Trial Court framed the charges against accused persons for the commission of offence under Sections 148, 307 read with Section 149 and Section

11/13 of MPDVPK Act against all accused (total 12 in number) and against the accused Jitendra Singh, Ramdeen, Ramsewak additional charge of

Section 25(1-b)(a)/27 of Arms Act was also framed.

8- Accused persons abjured their guilt and sought trial. Total six witnesses were examined on behalf of prosecution and accused in their statements

under Section 313 of Cr.P.C. pleaded the defence that they are innocent and falsely implicated.

9- The trial Court after considering the evidence led by the parties and after considering the rival submissions, found the appellants Jitendra Gurjar,

Ramdeen and Ramsewak guilty of offences as referred above and other accused persons were acquitted from the charges referred above. In the

case, co-accused Surendra and Achal Singh remained absconded, therefore, trial conducted in respect of 10 accused other than Surendra and Achal

Singh. Against the judgment of conviction/sentence, these appeals have been preferred by the accused/appellants.

10- Shri A.K. Jain, learned counsel appeared on behalf of appellants namely Ramdeen and Ramsewak in Cr.A.No.5845/2017 and Shri Vinay Kumar

appeared on behalf of accused Jitendra Singh through Legal Aid Department. Arguments were advanced by Shri Jain in Cr.A.No.5845/2017 and duly

supplemented by Shri Vinay Kumar in Cr.A.No.5717/2017.

11- Learned counsel for the appellants submitted that the trial Court erred in convicting the appellants and awarding jail sentence because weapons

were not sealed on the spot and once they were not sealed at the place of incident then presumption goes that they might have been sealed later on

and papers have been prepared to implicate appellants. It is material omission on the part of prosecution wherein weapons have not been sealed on the

spot itself. It is possible that weapons have been added subsequently to frame appellants. It is further submitted that no evidence surfaced in the

record about seizure of arms and placing it in Malkhana by properly sealing them. Learned counsel referred the testimony of Ramavtar (PW-1) and

Hitendra Singh (PW-4) in support of his submission wherein they accepted that weapons were not sealed properly. Learned counsel placed reliance

on the decision of Apex Court in the matter of Nand Kishore Vs. State of Haryana, 1998 SCC (Cri.) 568 in this regard.

12- It is further submitted that no injuries have been caused to the police officers who were present on the spot through firearms. Therefore, the story

of prosecution creates doubt. Similarly, whether the seized weapons were used in commission of offence, could not be connected by the prosecution.

They referred the testimony of armourer (PW-3) in support of their submission. Sufficient period of custody has already been suffered by the

appellants. They prayed for acquittal of appellants because according to them, prosecution story suffers from severe omissions, contradictions and

apparently it is a case of false implication just to get awards by police officers.

13- On the other hand, learned Public Prosecutor opposed the prayer and supported the impugned judgment. He referred clause 12 of report of

armourer vide Ex-P/15 to Ex-P/17 in which it has been referred that weapons were received by him in sealed position. He referred clause 12 of

property seizure memo in which Kattas have been seized vide Ex-P/1, P/2 and P/3 respectively and submitted that on the spot seal was not available,

therefore, it was not possible to endorse seal in Jungle. In the presence of witnesses, memos were prepared and later on weapons were sealed at

Police Station. Hitendra Singh Rathore (PW-4) testified about such eventuality in his Court statement and clarified the position. Thus, prayed for

dismissal of both the appeals.

14- Heard learned counsel for the parties at length and perused the record.

15- It is a case conducted before the Special Court of MPDVPK Act and this Act has been enacted looking to the specific socio economic and law

and order situation of districts covered in the Act where once upon a time dacoity, robbery or abduction were rampant and ravines of Chambal

reverberated in the world of crime with such eventualities including murders and attempt of murders. It is part of folklores and records both, that at

times, these stringent provisions were used to frame the opponents or police was used to settle the scores. Even this MPDVPK Act has been used

suo moto by the police personnel (not always but at times) for getting awards, medals and out of turn promotions. Therefore, harsh reality referred

above is required to be kept in mind while considering the cases and their factual details, falling under the ambit of Special Act namely, MPDVPK

Act.

16- In the instant case, Ramavtar Bohre, Police Constable (retired) appeared as PW-1 and he referred the incident in his examination â€"in â€"chief

which opened with the word that he was posted as constable at Police Station Saraichhola on 15-02-2009 when his Station In-charge Hitendra Singh

Rathore (PW-4) received tip off from informer about movement of dacoits in the ravines of Chambal at Naduapura. Along with Station In-charge and

other members as referred in para 1 of examination -in -chief, he proceeded for spot. This fact shows that at the time of information, he was present

at the Police Station. Although his statement under Section 161 of Cr.P.C. must have been taken by the police because judgment of trial Court refers

so but same has not been exhibited. On the other hand, Station In-charge Hitendra Singh (PW-4) in his complaint (FIR vide Ex-P/13) referred the fact

that he received the information through his informer when he was patrolling in his area. This witness Hitendra Singh (PW-4) reiterated the said facts

in his Court statement also. Both these witnesses were members of police department (at the relevant point of time) and are well versed with such

type of eventualities, therefore, such omission is not expected from them with two versions appeared over the information received. Whether they

were at Police Station (as per PW-1) or they were patrolling (as per PW-4) when information was received. Therefore, since beginning the case

starts with doubt.

17- It is a mandatory requirement for any police personnel to mark the information received at the police station and record it in Rojnamcha of the

police station and therefore, format of FIR contains clause 3(a) in form No.1 about Rojnamcha Sanha number (serial number of Rojnamcha Sanha).

No such entry is made in FIR nor Rojnamcha was produced to indicate that information was received by police party when they were at police station

or when they were patrolling. SHO, Hitendra Singh (PW-4) further admits that Rojnamcha entry regarding dispatch (Rawanagi) and return (Wapasi)

are to be registered compulsorily but no such Rojnamcha has been filed along with charge-sheet.

18- How many vehicles were used by the police party to reach the spot is also a doubtful preposition. No witness could able to tell the registration

number of vehicles used in the operation whereas it is common knowledge that any police station contains one or two vehicles at best at their disposal

for patrolling (and other operations) and it is highly surprising that no prosecution witness (police personnel) was able to refer registration number of

vehicles. Be that at it may, even number of vehicles used in operations are variable. Ramavtar (PW-1) in para 8 referred the fact that they went with

a four wheeler but he do not remember the number but in para 16 he says that we rode over two vehicles which were government vehicles of police

department. Station House Officer, Police Station Hitendra Singh (PW-4) in para 14 admits that only one vehicle was used during the operation.

Siyaram Dhakad (PW-6) was Head Constable at the relevant point of time and he admits in para 8 that one vehicle was used in the operation but he

did not remember registration number of vehicle and name of driver, therefore, whether the team started from Police Station or from patrolling is

doubtful and whether team rode over two vehicles or one vehicle is also in the realm of doubt.

19- As per the contents of FIR Ex-P/13, no time has been mentioned to start for the operation but leader of operation Hitendra Singh (PW-4) in his

Court statement refers the fact that around 9 pm he received the information from his informer about movement of dacoits along with one abductee

latched up in chain and the operation was over, returned to Police Station and FIR was noted down around 2 am in the night but time referred in FIR

is 1:40 am in which 4 has been overwritten and he accepted such overwriting. Further in para 18 he admitted the fact that FIR was written around 2

am. Constable Ramavtar (PW-1) admitted in his cross-examination in para 9 that they moved from Police Station Saraichhola around 11:15 pm and

reached on the spot at 11:30 pm and returned back to the Police Station around 1 am in the night. He further admitted in para 8 that distance between

Police Station and the place of incident was around 8-9 kms. He was member of Police party and since inception he maintained the fact that they

started the operation from Police Station which is a fact contrary to the one narrated by the Station House Officer, Police Station Hitendra Singh

(PW-4).

20- Another member of the team Siyaram Dhakad (PW-6) referred the fact in para 6 that Station House Officer of Police Station received

information around 10 pm and they reached the spot around 11 pm. He further narrated the fact in para 9 of his cross-examination that they travelled

6-7 kms. in ravines which took one and half hour and they left behind government vehicle at Nayakpura village. He referred the fact in para 7 that the

place of incident was around 100-200 ft. away from the Naduapura village. In para 6 in cross-examination (on behalf of one of the accused), he

referred the fact that he cannot remember how much distance they travelled and how much time they took to reach there. Statement of this witness

does not match with the factual details narrated by Ramavtar (PW-1) and Hitendra Singh (PW-4). All police personnel referred facts differently.

21- So far as number of persons constituting the group which took participation in rescue operation is also doubtful. As per contents of FIR, one party

was under the command of Hitendra Singh (PW-4) in which six members were referred operated over the spot. Beside Hitendra Singh (PW-4), PSI

Anil Singh Bhadoriya, Siyaram, Bharat Singh, Ramavtar and Vishambhar were in party No.1 (total six in numbers) and party No.2 under the

command of Sub Inspector Akhilesh Puri Goswami consisted of PSI D.S. Narawi, Head Constable Kok Singh, Shivram and Constable Ramavtar

(total five in numbers), therefore as per the contents of FIR 11 members were in two police parties for rescue operation. Ramavtar (PW-1) in para 16

refers the fact that during the operation they were around 5-7 or 8 members in the force. Hitendra Singh (PW-4) refers 11 members in the operation

(in his examination â€"in â€"chief as well as cross-examination) whereas Siyaram Dhakad (PW-6) admits the fact in para 8 of his deposition that total

8 persons were there in police party at the time of incident. This numerical discrepancy is to be seen with several other omissions referred above.

Several other omissions and contradictions are yet to be followed.

22- Interestingly, in FIR Hitendra Singh (PW-4) who happened to be the complainant refers Vishambhar in his party but in his Court statement he

refers Vishambhar in party No.2. Same is the case with Siyaram because in his police statement under Section 161 vide Ex-D/1 he refers Vishambhar

in party No.1 but in his Court statement he refers Vishambhar in party No.2 in his examination â€"in â€"chief itself.

23- In the present case, abductee was Sushil Rathi (PW-2) and as per his version he was abducted on 11-02-2009 around 5-5:30 pm and the incident

is after 4 days on 15-02-2009 in the night and meanwhile through mobile of abductee, the abducter talked to abductee's brother K.L. Rathi. Neither

the call details of such conversation were retrieved by the investigation from the concerned service provider to ascertain the allegations nor elder

brother of abductee was appeared in the Court to make statement about the demand of ransom especially because abductee Sushil Rathi did not

support the story of prosecution in full and declared hostile by the prosecution. He did not recognize the appellants and other co-accused persons. He

further denied Rs.5 lacs as ransom from his elder brother. He only admitted conversation with his elder brother, therefore, the best piece of evidence

for establishing the allegation of ransom would have been the testimony of elder brother of abductee but no such endeavour has been made by the

prosecution and in view of the fact that abductee himself retracted from his police statement and did not support the story of prosecution qua present

appellants, therefore, it is difficult to accept the story of prosecution about application of MPDVPK Act over the present appellants. Prosecution could

not prove the case beyond reasonable doubt so far as allegations of Sections 11/13 of MPDVPK Act are concerned. Therefore, the possibility cannot

be ruled out that Sushil Rathi (PW-2) masqueraded as abductee and used by police for false implication of present accused and to get service benefits

or awards for amelioration of their careers.

24- As per the contents of FIR, it appears that Station House Officer had knowledge that Rajendra Gurjar is a dacoit and his gang is in movement in

the area of complainant but no such criminal record of Rajendra Singh Gurjar or accused persons have been made available on record to establish the

fact that Rajendra Singh Gurjar was a dacoit and his gang was operating in the area in which present appellant and other accused persons were

members. No previous criminal record of accused persons have been placed to establish such fact. No effort has been shown to arrest the kingpin of

the gang, namely Rajendra Singh Gurjar and interestingly no specific allegation has been leveled against the leader of the gang Rajendra Singh Gurjar.

This further makes the case doubtful.

25- Head Constable Siyaram (PW-6) referred the incident in para 8 that gang opened fire with 100-200 fires. When such large rounds of firing were

exchanged then it is impossible to believe that any person in the vicinity or village could not have heard sound of such indiscriminate firing but any

independent witness has not been examined by the police which was essential to establish the case of prosecution through independent witnesses.

Although testimony of single witness or testimony of departmental witnesses cannot be ignored on the pretext of their number or nature of evidence

but their testimonies deserve scrutiny carefully.

26- Beside that it is highly improbable that dacoits opened fire indiscriminately and around 100-200 cartridges consumed/used as ammunition by

country made pistol because country made pistols cannot sustain such burden of firing so much rounds and can only be used for firing some

cartridges. Such barrage of firing and in retaliation thereof police party also fired several rounds but only four empty cartridges from 315 bore country

made pistol and 3 empty cartridges from 12 bore country made pistols were found on the spot and allegedly seized by the police party. Neither any

seizure memo is on record of those empty cartridges nor they were exhibited on record to show that some empty cartridges were recovered from the

place of incident. Looking to the nature of exchange of ammunition, loads of empty cartridges should have been recovered but no such thing

happened. This omission further renders the story of prosecution doubtful because it was the duty of the police party to recover some of the empty

cartridges and to prepare seizure memos. Same did not happen which further strengthen the case of accused.

27- One more important aspect on which case of prosecution falters is procedure adopted by the police authority for sealed cover of weapons. Station

House Officer, Police Station Hitendra Singh (PW-4) in para 21 admitted and pleaded ignorance about the fact that those country made pistols were

kept for 4 months at Police Station without his knowledge. He did not know where the weapons were kept. Neither the weapons were sealed on the

spot nor they were sealed when police party returned back to police station. In absence of weapons being sealed, inference can be drawn that

weapons were either tampered or were sealed at later stage and used by police to implicate the accused persons on false pretext. In the catena of

decisions in the matter of Kuldeep Singh Vs. State of Punjab, 1995 SCC (Cri) 810A, marjeet Singh Vs. State of Punjab, 1995 SCC (Cri) 828 S,ahib

Singh Vs. State of Punjab, 1997 SCC (Cri) 31 5and Nand Kishore (surpa), the Apex Court held time and again that arms and ammunition allegedly

recovered from the accused not packed and sealed then in absence of evidence to indicate with whom weapon was after seizure was sent to the arms

expert, then under the circumstances accused is entitled to the benefit of doubt. The Apex Court in those cases held that non-sealing of weapon on the

spot was a serious infirmity as the possibility of tampering could not be ruled out and therefore, report of expert that revolver was in working order

was insignificant since it could not be said with certainty as to what was the condition of weapon at the time of recovery, apart from the evidence of

expert that he did not test fire the weapon. In the present case such infirmity is writ large because the Investigating Officer/complainant/Station House

Officer himself accepted such fact. Even the witness Ramavtar (PW-1) in para 12 admitted that no seal was affixed over the sealed weapon on the

spot.

28- Another witness Siyaram (PW-6) who was present at the time of incident also pleads ignorance in his cross-examination about weapons being

sealed. In para 12 of his cross-examination he accepted that seal was not affixed in front of him. Apparently weapons were taken wrapped in clothes.

Therefore, prosecution could not prove the case regarding seizure and sealing of weapon, therefore, not only the case of prosecution regarding

provisions of Arms Act could not be proved beyond reasonable doubt but it is severely impacted on other counts also.

29- One more aspect deserves consideration is that no injury has been caused to any member of the police party and when the very incident is

doubtful and suffers from severe infirmities as discussed above then the allegation of offence under Section 307 of IPC is not able to be proved by the

prosecution. Even otherwise in the present set of facts when incident is doubtful, the provisions of Sections 147, 148 and 149 of IPC are not attracted.

Unlawful assembly consists of 5 or more persons and here only three persons have been convicted and rest of the accused have been acquitted giving

benefit of doubt. Therefore, neither rioting took place nor the appellants formed unlawful assembly as defined under Section 147 of IPC, therefore, the

case of prosecution on this count also lacks merits.

30- Complainant Station House Officer, Police Station Hitendra Singh (PW-4) in para 8 admitted that the lock and key used for keeping the seized

items (vide seizure memo Ex-P/4) were brand new and were not the used ones, therefore, it creates doubt because when police party got the tip off

while patrolling at night around 9 pm then how they could procure new lock and key is the question and same had not been explained by the

prosecution and perhaps it could not have been explained by them because of loops in the story about an incident which never happened or at least not

in the manner as tried to be explained by the prosecution.

31- When all these fragmented pieces of evidence admitted by prosecution witnesses are collected to form Prism, then Reflection of Innocence of

appellants comes out as noon day and no iota of doubt exists that appellants were framed without being involved in offence. In fact no report has been

lodged either by elder brother of abductee namely Dr. K.L. Rathi (PW-2) on 11-02-2009 or subsequent to it about abduction for ransom, nor abductee

supported the story of prosecution qua present appellants and other accused persons. Therefore, only two possibilities exist; one that abductee and his

family members paid the ransom to the real culprits and escaped and another is that no such incident took place and police framed the present

accused persons either to settle score or to get awards, medals or out of turn promotions.

32- In the considered opinion of this Court, prosecution miserably failed to prove its case beyond reasonable doubt and appellants consequently

deserve to be acquitted from all the charges referred above not only on the basis of benefit of doubt but on the basis of clean acquittal because

prosecution story faltered right from the beginning.

33- One miserable part of case is that one of the co-accused Samokhan suffered conviction since 19-04-2009 uptil 20-10-2016 about more than 7

years 6 months as undertrial whereas maximum jail sentence awarded by the trial Court is 7 years for the offence under Section 307 of IPC or under

Section 11/13 of MPDVPK Act. This is pathetic, therefore, before parting this Court intends to draw the attention of State Government; a Major

Stakeholder in the Administration of Justice to contemplate over such situation and if possible may come out with following measures:

i- A Scheme be prepared if possible for consideration of Rehabilitation of Undertrials as well as Convicts of trial Court who suffered confinement

more than half of their total Jail Sentence (which could have been awarded to them if found convicted) and/or to those Accused who are acquitted on

merits after due appreciation of evidence available on record (rather than getting benefit of doubt or getting benefit of witnesses turned hostile) in

Appeals/Revisions/Special Leave Petitions and said Rehabilitation may include giving avenues to their skills which they acquired during confinement or

impart new skill trainings if they wish or give some barren or some remotely placed land so that they may restart their innings in social sphere as

regular citizens of the country.

ii- State Government may contemplate a Mechanism to give regular Counseling or Healing Sessions to them after their release, availing the services of

Psychoanalyst, Psychologists or Psychiatrists; as the case may so that dark shadow of long tenure of confinement may be erased from their mind and

a probable rebel in society be utilized for the Welfare of Society if he intends to be like that. In short, a Healing Touch of Sovereign State is required

for.

34- In the opinion of this Court those undertrials or accused who get released after spending some years in jail and thereafter getting acquittal order in

their favour are severely disturbed and impacted; mentally and psychologically. At times, their families leave them or society treat them as criminals

and continues to do so which make these accused vulnerable and either they turn to crime again or go into deep depression. Their rehabilitation is need

of the hour.

35- Therefore, it is sincerely expected by this Court from the State and its concerned authorities to think over it and device a Mechanism or Scheme

for such neglected section of society and marginalized litigants in the Administration of Justice.

36- Copy of this order be sent to Chief Secretary, State of Madhya Pradesh, Vallabh Bhawan Bhopal, Principal Secretary, Law and

Legislative Affairs, Bhopal and Advocate General, State of Madhya Pradesh, Jabalpur to look into it and contemplate in this regard.

37- Resultantly, both the appeals preferred by the appellants namely Jitendra alias Kalli, Ramdin and Ramsewak deserve to be succeeded and hence

hereby allowed. Judgment passed by the trial Court suffers from illegality, perversity and impropriety, is hereby set aside. Appellants are already on

bail, therefore, their bail bonds stand discharged and they are set free.

38- Copy of this judgment be sent to the trial Court as well as to the authorities referred above for information and necessary compliance.

39- Appeals stand allowed and disposed of.

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