Mohar Singh & Ors vs State Of Madhya Pradesh

This appeal has been filed being aggrieved by judgment dated 30.04.2012 passed by the Special Judge (MPDVPK Act, 1981) Gwalior in Special Case

No. 112/2005. It has come on record that Ramswaroop S/o Hargovind Jatav has died during the trial.

Prosecution case is that on 20.07.2005 at about 23.30 hours complainant Pramod Sharma alongwith two of his relatives were coming from Girraj Ji

(Mathura) U.P. on his Boxer motorcycle No. MP 07 G-5336 when they were intercepted by three persons and on their request, motorcycle was

stopped. These three accused persons were joined by another person and they had beaten the complainant party consisting of Promod Sharma,

Bhagwandas Sharma and Radheshyam and had taken them on a small hillock infested with deep forestand had tied their hands. Two of the accused

discharged duty of watchman while two others had gonedown theroadand after sometime they heard noise of starting of engine of motorcycle and

after that two other accused persons, who were acting as guard, had left the scene of crime. Thereafter, complainant party with the help of each

other had loosen their ropes and had approached the police station on 21.07.2005 and had lodged the FIR against four unknown persons on 21.07.2005

at 6.30 a.m. vide Ex.P/3. Author of FIR is Pramod Sharma (P.W.3)

Learned counsel for the appellants submits that no description of accused persons is mentioned in the FIR. First arrest was made in regard to

Ramdeen Jatav, who was arrested on 24.07.2005 vide arrest memo (Ex.P/5). Thereafter Ramswaroop was arrested. Memorandum(Ex.P/10) of

Ramdeen was prepared on 24.07.2005 in which Ramdeen confessed to have committed an offence alongwith Ramswaroop and further confessed

that with the help of Katta and axe they had threatened the complainant party and had looted the material out of which two watches were at his

house.

Vide seizure memo (Ex.P/9) prepared on 24.07.2005 one axe and one HMT watch worth Rs. 300/- were seized from his custody. It is submitted

that in the FIR (Ex.P/3) there was mention of only one watch of Titan company. Another memo (Ex.P/8) was prepared on 24.07.2005 vide which one

Titan watch, one Katta and two live cartridges were seized from the custody of Ramdeen. In seizure memo (Ex.P/8) it is mentioned that one Titan

watch, one Katta of 315 bore and three live cartridges were seized as per the information given by Ramdeen from his room, whereas in Ex.P/9, it is

mentioned that seizure of one HMT watch and an axe was made as per the information given by Ramswroop. It is pointed out that there is

contradiction in arrest memo (Ex.P/5), inasmuch as in column 8, date of arrest of Ramdeen has been shown as 21.07.2008 at 21.55 hours at Sirol,

whereas date of arrest in column-2 has been shown as 24.07.2005 and signatures of the Sub-Inspector Rammurti Shakya have also been made onÂ

24.07.2005. Whereas arrest of Ramswaroop has been shown as made on 24.07.2005 at 22.10 hours at Sirol. It is submitted that in the memorandum

under Section 27 given by Ramdeen, there is no mention of name of the present appellants Mohar Singh and Munna.

Mohar Singh was arrested on 13.08.2005. Though there is mistake in the arrest memo (Ex.P/13) date of arrest is shown as 13.07.2005 but I.O.

Rammurti Shakya (P.W.13) has admitted the correct date of arrest to be 13.08.2005. A memo (Ex.P/11) of Mohar Singh was drawn on 13.08.2005

and thereafter a bag was seized from the custody of Mohar Singh on 14.08.2005 vide Ex.P/12. It is submitted that ingredients of this bag namely

clothes were not sealed on the spot and there is no mention of sealing of such material in the seizure memo. This fact has been admitted by the I.O. as

well. Witness to seizure (Ex. P/12) Gangaram (P.W. 8) and he has been declared hostile and has not supported prosecution story.

It is further submitted that though memorandum (Ex.P/11) was prepared as was given by Mohar Singh but no attempt was made to seize

motorcycle from the custody of Munna till 24.08.2005 when seizure memo (Ex.P/12) was prepared in presence of witness Manoj Sharma (P.W.11).

It is pointed out that Manoj Sharma (P.W.11) in his examination-in-chief has admitted that police had seized registration card and insurance policy of

Boxer motorcycle No. M.P.07-KG-5336 vide Ex.P/7 and at the same time had seized a motor cycle from the custody of the accused Munna Jatav on

being presented by Munna vide Ex.P/14. It is pointed out that Munna Jatav was brought before the Court on production warrant on 05.08.2006 though

such memo is not exhibited but it is available on record and it is mentioned that he was produced on production warrant and his formal arrest was

shown on 05.08.2006. Therefore, it is pointed out that when Munna was in custody and was produced on production on 05.08.2006, then there is

contradiction in the seizure memo (Ex.P/14) and the evidence of seizure witness Manoj Sharma (P.W.11) because as per Manoj Sharma (P.W.11),

motorcycle was sized on being presented by Munna Jatav from his house. Shri Dhengula has rebutted this and submitted that this is typographical

error. In cross-examination Manoj Sharma (PW.11) has admitted that as per Ex.P/14, motor cycle was standing at the police station itself. This makes

the seizure of motor cycle from the house of the appellant Munna Jatav doubtful. In view of such facts, contradictions and omissions, it is submitted

that firstly in the memo of Ramdeen there is no mention of name of Mohar Singh and Munna Jatav. Secondly, though seizure of a bag containing

clothes has been shown from Mohar Singh but such clothes were not sealed by the police at the time of seizure. Recovery of motor cycle has been

shown from the appellant Munna but I.O. has not explained two things that firstly, when memo of Mohar Singh was obtained on 13.08.2005, then why

seizure was not made till 24.08.2005. Secondly, when seizure was made from the house of the Munna, then why witness of seizure Manoj Sharma

(P.W.11) has given a contradictory version, namely; that such seizure was made at the instance of Munna Jatav presenting seized property and

secondly the motor cycle was standing at the police station. It is also submitted that in fact Manoj Sharma (P.W.11) is also witness to seizure of

registration card and insurance policy of the motor cycle vide Ex.P/7 at Police Station, Utila on 24.08.2005 at 21.00 hours. Ex.P/14 has been prepared

at 23.35 hours on the same date at Mauji-Ka-Pura Police Station Gormi, District Bhind. It is submitted that in fact both the seizure memos were

prepared simultaneously obtaining signatures of the same witnesses at the police station and this fact is fortified by admission of Manoj Sharma

(P.W.11) in his cross-examination that motor cycle was standing at the police station only.

Learned counsel for the appellants has also pointed out that T.I. of Police Station, Lahar-Chandrabhan Singh Raghuvanashi (P.W. 10), who was

working as SHO Police Station, Utila on 13.08.2005 has admitted that there is no mention of sealing of the clothes recovered vide Ex.P/12. It is also

pointed out that he has admitted that there is no reason or explanation for not seizing the motor cycle uptill 24.08.2005, whereas memorandum of co-

accused Mohar Singh was obtained on 13.08.2005.

Learned counsel for the appellants has also drawn attention of this Court to the statement of Gangaram (P.W.8), who is a witness to seizure

memos (Ex.P/11 and P/12) to point out that he has admitted of signing a seizure memo at the police station in para 3 of his cross-examination. Thus,

he has neither supported the prosecution story nor supported the case of the prosecution. It is also pointed out that Narayan Singh (P.W. 9), who is a

witness to identification of seized goods for which memo (Ex.P/11) was prepared deposed that the Daroga, who had brought such seized material for

identification had kept it in open and the persons, who had come to identify them were also standing there. He has further admitted that the material,

which was brought by Daroga for identification was shown to the persons, who were brought to identify such material at police station itself. He has

in fact admitted that firstly in front of the identifying witnesses seized goods were opened, thereafter other material was mixed in front of them and

thereafter process of identification was started.

Learned counsel for the appellants has also read thestatements of Pramod Sharma (P.W.3) and Radheshyam (P.W.4) and has pointed out that

Pramod Sharma (P.W.3) has narrated in his examination-in-chief that accused persons had left a diary on the scene of crime and on the basis of such

diary, accused persons were arrested. It is submitted that there is no mention of any such diary in whole of the investigation. There is no seizure

memo nor it was ever exhibited before the trial Court.

It is further submitted that Pramod Sharma (P.W.3) has admitted that he is not a witness to the seizure as was made from Ramdeeen. It is pointed

out that seizure memos (Ex.P/8 and Ex.P/9) were signed by him but police had not seized any material in front of him. He has also mentioned that

when police had interrogated Ramdeen at that time he was alone and there was nobody else, that means memorandum (Ex.P/10) of Ramdeen, which

makes mention of presence of two witnesses namely Pramod Sharma (P.W.3) and Bhagwandas (P.W.5), has a material omission, inasmuch as

presence of another witness has been denied by Pramod Sharma (P.W.3). It is also admitted in cross-examination that no TIP was ever carried out

for identification of the accused persons. He further admitted that he was not knowing names of the accused persons but was only knowing them by

faces. He further admitted that he has visited Court twice prior to the date of his deposition i.e. 01.09.2007 and he had seen the accused persons going

from Court to the custody. When he had seen them, there was no cover on their face.

Similarly, Radheshaym (P.W.4) in para 2 of crossexamination has admitted that though he had not visited the police station to lodge the report but

after arrest of the accused persons he had visited police station and he has seen accused persons at the police station. He has also admitted that police

had not taken his statements under Section 161 and no interrogation was made vis-a-vis Radheshyam. It is also pointed out that in para 4 of cross-

examination, Radheshyam has admitted that names of the accused persons were given to him by the police. He has, in fact, admitted that when he

had visited police station alongwith his brother Bhagwandas and brother-inlaw Pramod Sharma to see the seized goods, then names of the accused

persons were given by the police personnel and they had shown the accused persons to the witness Radheshyam and others. In view of such facts, it

is submitted that it a case where appellants have been falsely implicated and the judgment of conviction convicting them under Section 394 read with

Section 13 of MPDVPK Act needs to be set aside.Â

Learned Public Prosecutor Shri Prakhar Dhengula on the other hand, submits that minor omissions and aberrations cannot be used to record a

finding of acquittal in favour of the appellants. He submits that Manoj Sharma (P.W.11) has admitted that motorcycle was seized in his presence. If

there is an aberration that Munna, who is an accused and appellant, produced such motorcycle, then such contradiction or aberration or typing mistake

will not come in the way of the prosecution. He has placed reliance on the judgment of Hon'ble Supreme Court in case of Sheo Shankar Singh Vs.

State of Jharkhand & Anr. as reported in AIR 2011 SC 1403. In the said judgment, it has been held that failure to hold test identification parade does

not have effect of weakening of evidence of identification in Court. The ratio of the judgment is as to what should be the weight attached to such

identification in court is a matter which Court will determine in peculiar facts and circumstances of each case. It has been held that evidence of eye

witnesses will have more weight than anything else. Similarly, it has been held that if there is any deficiency in investigation, then it will not be fatal to

the case of the prosecution and such deficiency of not seizing some articles associating with the crime and not forwarding them to the forensic science

laboratory will not be sufficient to reject the version given by the eye witnesses. In this backdrop he submits that the conviction, which has been

recorded by the learned Special Judge needs to be affirmed.

Shri Dhengula further submits that Pramod Sharma (P.W.3) has been declared hostile for certain piece of evidence like seizure memo etc. and

thereafter he has affirmed the original version as was given by him in the FIR or in his case diary statements. In view of such reaffirmation by the

witness, contradictions or aberrations cannot be used to acquit the appellants.

After hearing the arguments of rival parties and going through the judgment rendered by the Hon'ble Supreme Court in case of Sheo Shankar

Singh (Supra), this court is of the opinion that there are several loop holes in the conduct of investigation as well as prosecution.

As far as investigation is concerned, there is no explanation for not attempting to seize motor cycle till 24.08.2005 when memorandum of Mohar

Singh was prepared on 13.08.2005 and seizure of bag was shown from his custody on 14.08.2005. Investigation has also failed to point out that why

clothes, which were seized from possession of Mohar Singh, were not sealed on the spot.

As far as version of eye witnesses is concerned, eye witnesses have admitted that they were not knowing the accused persons by their name.

They could have identified them on seeing them. No reason has been assigned as to why TIP was not carried out. Even if, this is over looked for a

minute, then even for dock identification, it should have been carried out on the very first date. Radheshyam (P.W.4) has admitted that police had

shown them accused persons in the police station. There is no contradiction or re-examination on this aspect as far as Radheshyam is concerned.

Similarly, Pramod Sharma (P.W.3) has admitted that he had seen accused persons before their identification while going from Court to the Hawalat

and there is again no re-examination on the part of the prosecution on this aspect. Thus, the names of the accused were given to the witnesses by the

police, they were shown by the police as has been admitted by Radheshyam (P.W. 4) at the police station and this looses the sanctity of dock

identification on which lot of emphasis has been placed by learned Public Prosecutor Shri Dhengula. In fact Hon'ble Supreme Court in the case of

Sukhbir Singh & Anr. Vs. State of Punjab as reported in (2011) 11 SC 436 has held that though there is no inflexible rule that identification made

for first time in court has to be always ruled out of consideration but broad principle is that in absence of no other evidence against accused

identification in court made long after the event is clearly not acceptable.Â

In view of such facts, when eye witnesses have themselves admitted that they were not knowing the names of the accused persons and they

could have recognize them on seeing them, lack of TIP and then act of the police to show them at the police station prior to their presence in the

Court, creates ample doubt about the efficacy or impartiality of the investigation. Thus, the judgment rendered by Hon'ble Supreme Court in case of

Sheo Shankar Singh (Supra) looses its value.

Similarly, as has been pointed out above, there are several contradictions like date of arrest of Ramdeen as has been shown in the arrest memo

(Ex.P/5) as 21.07.2005, whereas the Arresting Officer had signed it on 24.07.2005. Similarly, arrest of Mohar Singh has been shown on 13.07.2005

in seizure memo (Ex.P/13), whereas I.O. has admitted that arrest was made on 13.08.2005. As far as conduct of prosecution is concerned, when

Manoj Sharma (P.W.11) as per the version and arguments advanced by learned Public Prosecutor made an statement, which was not recorded

correctly in regard to seizure of motor cycle in presence of accused Munna, then it was incumbent upon the learned Public Prosecutor before the trial

Court to have reexamined such witness Manoj Sharma (P.W.11) but no attempt was made by learned Public Prosecutor to re-examine Manoj Sharma

(P.W.11). These are few examples to testify these observations given by this Court that there have been serious lapses in investigation so also in

conduct of prosecution before the trial court and all these lapses have been over looked by the learned Special Judge while recording a finding of

conviction.

As far as seizure of motorcycle is concerned, star witness of seizure is Manoj Sharma (P.W.11) and he is the only witness, who has been

examined as other witness Pintu @ Chandrabhan has not been examined. He has categorically admitted that motorcycle was standing at the police

station, therefore, seizure could not have been attributed from the house of Munna. Seizure from the house of Munna also becomes doubtful because

memorandum of Mohar Singh was obtained on 13.08.2005 and seizure was attempted on 24.08.2005, which shows the laxity of the Investigating

Officer so also lack of urgency to conduct the investigation properly. He allowed sufficient time to lapse after preparation of memorandum of Mohar

Singh to make seizure of the motorcycle. This seizure as has been pointed out above, becomes doubtful, inasmuch as it has been admitted by

Prosecution witness Manoj Sharma (P.W.11) to have been made at the police station as motor cycle was reportedly standing at the police station.

Another glaring discrepancy, which has not been appreciated by the learned Special Judge, is to the effect that Ramdeen in his memorandum

under Section 27 (Ex.P/10) had given name of only Ramswaroop as an accused person. There is no mention of name of Mohar Singh and Munna

Jatav as accused persons.

Pramod Sharma (P.W.3), who is the complainant and author of the FIR, has clearly deposed that accused persons had left a diary at the scene of

crime and that became basis for arrest of the accused persons. When diary was left, then it was incumbent upon the I.O. to have prepared a seizure

memo and to have exhibited such diary on the basis of which such arrest was made. In fact I.O. Rammurti Shakya (P.W. 13) has admitted that he

had arrested Ramdeen Jatav and Ramswaroop Jatav on 24.07.2005 in front of witnesses Pramod Sharma (P.W.3) and Bhagwandas (P.W. 5)at Sirol.

There is also an admission of T.I. Chandrabhan Singh Raghuvanshi (P.W.10) son of Randhir Singh that there was already evidence in regard to

Mohar Singh and, therefore, he had arrested Mohar Singh from Gohad Chouraha. But source of such evidence against Mohar Singh has not been

brought on record by any of the witnesses. If diary, as has been reported to be the source by Pramod Sharma (P.W.3), is discarded as it has not been

produced on record by the Investigating Officer, then, it is a clear case of false implication of the present appellants, who have been falsely implicated

by the police because police already had certain past record in regard to the present appellants but at the same time the prosecution has failed to make

out a case of either recovery of clothes or of motorcycle from the present appellants and even their identification is a big question mark and that

cannot be brushed aside lightly and discarded in the light of the law laid down by Hon'ble Supreme Court in case of Sheo Shankar Singh (Supra)

because admittedly the accused persons were shown to the prosecution witnesses at the police station. Thus, in the light of the law laid down in case

of Sukhbir Singh (Supra), failure of TIP is also one of the contributory factor due to which this Court quashes the impugned judgment and set the

appellants free.

It has been pointed out by the learned Public Prosecutor that appellants have already undergone their sentence and have been released from jail on

01.01.2014. Under such facts and circumstances, appellants will be free to prosecute the State to claim compensation in appropriate proceedings, if

they so deem fit.

Before parting, I would like to put a word of appreciation for Shri Ravindra Dixit, who has prepared the case in a professional manner and has

assisted this Court wholeheartedly.