Yasin and Ors vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred being aggrieved by the judgment dated 21/08/2000 passed by the Court of Shri Devendrasingh Solanki, 8th A.S.J., Indore in S.T. no. 129/1998, by which appellants Yasin and Shakil have been convicted under sections 302 read with section 120B of the IPC with life imprisonment along with fine of Rs. 10,000/- and under sections 307 read with section 120B of the IPC with rigorous imprisonment of ten years with fine of Rs. 5,000/- and under sections 394 read with 120B of the IPC with rigorous imprisonment often years with fine of Rs. 5,000/- as well as accused Adnan & Vinod @ Binnani have been convicted under sections 302/34 read with section 120B of the IPC with life imprisonment along with fine of Rs. 10,000/-; and under sections 307/34 read with section 120B of the IPC with rigorous imprisonment of ten years along with fine of Rs. 5000/-and under sections 394/34 read with section 120B of the IPC with rigorous imprisonment often years with fine of Rs. 5,000/-. According to the prosecution case, on 27/01/1997 at about 10.45 am, complainant Indarsingh along with Mohanlal went to Dena Bank for depositing a cash amount of Rs. 1.5 lacs from petrol pump. As soon as they reached before the bank, two gun shots were fired from the left side. He saw that near the scooter stand, one person aged 30-32 years was standing with small gun in his hand. He tried to snatched the bag from Mohanlal, but Mohanlal did not allow him, then he fired on his neck, due to which Mohanlal fell down and he snatched the bag. At that time, one suzuki motorcycle came there, on which the person who snatched the bag and his companion ran away. Complainant Indarsingh pelted 2-3 stones at him and cried. At the same time, one Pappu Sardar chased the accused persons by his scooter and as soon as they reached before the Central Bank, Pappu Sardar tried to catch them, then accused person sitting as pillion rider fired on him and ran away towards Janki Nagar. Gun shot injured Pappu Sardar in the stomach. Then Pappu Sardar and Mohanlal were rushed to hospital by Rajendra etc. This incident was witnessed by Ashok who was the peon of the bank, Anil Tentwale, Sonu of STD and others. The complainant will identify the assailants. One assailant who fired with gun was aged 30-32 years with 5ft. 10-11 inch hight, slim in structure. Other accused was nearabout 25 years of age; he was wearing jurkin and the accused who was driving motorcycle was nearabout 25 years with 5 ft 8 inch hight and was having light beard. The cash bag was of black canvas in which cash detail slips of notes and diary of pump were kept. The complainant will identify them. This report was lodged as dehati nalishi report of police station - Bhanwarkua, Indore, on the basis of which, FIR Ex.-P/25 at crime no. 33/1997 was registered at police station - Bhanwarkua, Indore under sections 394, 397, 307 of the IPC and section 25 of the Arms Act against unknown persons. During investigation, it was found that accused Yasin, Vinod, Adnan and Kazi Durrej were involved in this offence. Kazi Durrej became approver during investigation. Hence after completion of the investigation, challan was filed against four accused persons. After trial, the accused / appellants have been convicted and sentenced as mentioned hereinabove, hence this appeal.

During pendency of the appeal, appellants Yasin and Vinod died in encounter in Delhi on 12/06/2011 and appellant Adnan died on 16/06/2004 in police encounter in Mumbai. Hence the appeal abated against appellants Yasin, Vinod and Adnan.

It has been argued by the appellants'' counsel on behalf of accused / appellant Shakil that there is no evidence against him. None of the prosecution witnesses identified and implicated him. He has been falsely implicated in this case. Only Indarsingh PW-6 named him, but his identification was not reliable. The report was lodged against unknown persons and he deposed that earlier he saw the accused persons in police station and on the basis of which, he identified them in jail. Hence this appeal be allowed.

It has been argued by the respondent''s counsel that on the basis of the evidence produced before the Trial Court, the appellant was rightly convicted. He has been identified by the witnesses, hence this appeal being devoid of merits be dismissed accordingly.

Considered the circumstances and record of the trial Court perused.

Indarsingh PW-6 lodged Dehati Nalishi Ex.-P/11, on the basis of which, FIR Ex-P/25 was registered. In this case, the FIR was lodged against unknown persons. Co-accused Kazi Durrez became approver; his statement was recorded. Thereafter, he was examined as prosecution witness no. 5, but he became hostile and did not support the prosecution case.

Sajjan Kumar Joshi PW-1 has given details of prosecution case, but in court statement, he identified accused Adnan only. He confirmed the fact that during identification in jail, he identified Adnan, but in cross-examination, he admitted that earlier he saw him at police station. Rajkumar Mishra PW-4 who was the receptionist of the Hotel Samrat, did not identify any person in the Court and about identification in jail, he has not confirmed it and said that he is unable to say that to whom, he identified in jail; he does not know their names. He could not identify the accused persons present in Court that whether they were the accused persons.

Dinesh PW-7 who was the manager of the Hotel Samrat deposed that he does not remember that the accused persons stayed in his hotel or not on 24/01/1997. He does not remember that he told the police about their stay. He did not see them earlier. Shahid Anwar stayed in the hotel, but he is unable to speak about his identification. About identification in jail, he said that he does not remember that he identified five persons during identification parade in jail. He was said to identify three persons, hence he identified three persons, hence he put his hand on their head, but he was not knowing any person. Due to lapse of time, he is unable to say that he identified the persons present in Court. In para 7, he deposed that he is unable to give identification of Shahid Anwar who stayed in the hotel on 24/01/1997. Further, he has deposed that he does not remember that in jail he identified accused Kazi Durrez, Yasin, Vinod and Adnan by putting his hand on their heads. It is wrong to say that after their identification, he signed the identification memos Ex.-P/1 & Ex.- P/2. Further he has deposed that he was told to identify three persons. Before this identification parade, he did not see the accused persons anywhere. In this way, he has not confirmed the identification parade and he has been unable to identify the accused persons present in Court.

Anil PW-10 has deposed that at the time of the incident, accused Vinod snatched the bag from Mohanlal and accused Adnan was having pistol in the hand. He identified both of them, but both these accused persons are dead. He has not deposed anything about the presence of accused Shakil and his identification. Dadusingh PW-12 was the security guard at Hotel Samrat. He has deposed that he does not know about the incident and he did not identify any person. About his signature on identification memo Ex.-P/2, he said that they are like his signature, hence he was declared hostile. He further stated that on 03/05/1997, he went to jail for identification, but he does not remember that there he identified accused Vinod and Adnan. About identification of accused Shakil, he did not depose anything. Yogendra Sharma PW-13 was having a pan shop at the place of the incident. He identified only accused Adnan and Vinod present in the Court. He also said that one person was also identified by him in jail, but he is not present today, but from his statement, it is not clear that who was the third person. In this way, he has not implicated the accused Shakil.

Bholanath PW-17 who is the witness of seizure of the bag, has said that accused Yasin and Adnan were brought on the spot from where the bag was seized. He has not deposed anything about the involvement of the accused Shakil in this case. Ashok PW-24 has deposed that after the incident, he reached on the spot. Ahsan PW-25 was hostile and he said that he does not know any accused person. Pankaj PW-27 was also hostile; he was working at the photo copy shop and he has not identified any accused person. Vijay Sahgal PW-44 who was having STD PCO shop, but he did not identify the person who made phone calls from the shop. In this way, all these witnesses have not confirmed the fact that accused Shakil was involved in the incident and they have not identified the accused Shakil.

Complainant Indarsingh PW-6 deposed that on the date of the incident, with Mohanlal he went to Dena Bank to deposit the amount of Rs. 1.5 lacs at about 10.30 am. When they reached near the courtyard of the bank, he heard noise of gun shot fire. Someone caught him; he does not know him, but can identify; they were two persons present in the Court, they were accused Shakil and Adnan. Accused Shakil fired and snatched the bag and other accused persons took the bag in his hand and ran way by vehicle. At that time, by gun shot Mohanlal sustained injury in the neck and bag was snatched from the hand of Mohanlal. He cried to catch them and chased them for some distance. Thereafter, one Sardarji came by scooter and chased them, then accused Shakil fired on him; due to which he fell down and sustained injury in the stomach. Thereafter, accused persons ran away. Mohanlal was rushed to hospital by him and he was also with him. He told the incident to his master Sampat Kumar Ramchandra Nehati and lodge report Ex.-P/11 to police. He has further deposed that in jail, he attended the identification parade and identified accused Shakil & Adnan during identification. The identification memo Ex.-P/2 bears his signature.

In this respect, it has been argued by the learned counsel for the appellants that Indarsingh PW-6 was not knowing any accused person by name, hence in Dehati Nalishi Ex.-P/11, no accused person has been named and it was against the unknown persons. In jail this witness has deposed that he identified accused Shakil and Adnan, but in this respect in cross-examination, he has deposed that he saw these persons in police station earlier to identification parade and on the basis of which he identified them in jail, therefore, this identification is not reliable and cannot be used against the appellants.

In reply, it has been argued by the respondent''s counsel that this witness Indarsingh was present at the time of the incident with Mohanlal and he saw the whole of the incident, hence his statement about identification is reliable.

Considered the arguments.

From the Dehati Nalishi Ex.-P/11, it reveals that it was lodged against unknown persons, on the basis of which, FIR Ex.-P/25 was registered against unknown persons. Name of the accused persons was not mentioned in the FIR. According to the identification memo Ex.-P/1 & Ex.-P/2 which was conducted by Nayab Tehsildar Dr. D.S. Sharma PW-32. Accused Kazi Durrez and Shakil were identified in identification parade and identification memo Ex.-P/1 was prepared and accused Yasin, Vinod and Adnan were identified in identification parade and identification memo Ex.-P/2 was prepared. From identification memo Ex.-P/2, it reveals that accused Yasin was identified as a person who was having revolver in his hand and accused Vinod was identified as a person who snatched the bad. Accused Adnan was identified as a person who was having pistole before the bank. Accused Vinod snatched the bag and Adnan fired by pistol. They were also identified as the person who stayed in the Hotel Samrat. Indarsingh PW-6, during identification has deposed that accused Adnan is the person who fired by pistol and accused Vinod snatched the bag, but in court statement, Indarsingh has not supported this fact and has deposed that accused Shakil fired by pistol and snatched the bag. In this way, he has not supported the identification memo Ex.-P/2. In identification parade, accused Shakil was identified by identification memo Ex.-P/1, of which Indarsingh was also a witness and he identified accused Kazi Durrez as a person who was on motorcycle, but he did not identified accused Shakil by this identification memo. In this way, the statement of Indarsingh PW-6 that at the time of the incident, accused Shakil fired by pistol is not reliable. Further in cross-examination, Indarsingh PW-6 has deposed in para-16 that after the incident, he went to police station three times and saw the accused persons in police station, on the basis of which, he identified them. In paragraph-12, he has deposed that he saw four persons in police station and then saw them in jail. He says that the accused persons were shown to the witness at the police station before his identification parade and thereafter, identification parade was held, in which the accused persons were identifed, but from the identification parade, identification memo Ex.-P/1, it reveals that Indarsingh did not identify accused Shakil during identification parade. As regard to Ex-P/2, it reveals that in this identification parade, accused Shakil was not put in identification, therefore, the statement of Indarsingh that he identified accused Shakil in identification parade is not reliable and the fact that at the time of the incident, accused Shakil fired by pistol and snatched the bag is also not reliable. There is not other evidence as regard the identification of the accused Shakil.

Therefore, on the basis of the above discussions that there was no evidence to prove the fact that accused Shkil was present at the time of the incident and he fired on Mohanlal and snatched the bag from him and after chasing by Sardarji @ Pappu, he fired on him, due to which he died.

Hukumsingh Yadav PW-47, the investigating officer deposed that during investigation, he collected the sample of hand writing and signature of accused Shakil and Kazi Durrez and they were sent to hand writing expert for examination. Samples of accused Shakil are Ex.-P/59 to Ex.-P/64 and sent them for examination. According to Rajendra Verma PW-45, the hand writing expert, after examination of the samples of hand writing and signature, he gave report Ex.-P/71 and Ex.-P/72 and found that the person, who wrote the red enclosed writings stamped and marked S/1 to S/2, also wrote red enclosed writings similarly stamped and marked Q/1 and the person, who wrote the red enclosed signatures stamped and marked A/1 to A/6, also write the red enclosed signatures similarly stamped and marked Q/2 and Q/3. Hukumsingh Yadav PW-47 has deposed that by letter Ex.-P/77 of S.P. Indore, signatures of accused Adnan, Kazi Durrez and Shakil were sent for examination. By these documents it is not proved that the accused Shakil had stayed in Hotel Samrat because Dinesh PW-7, the manager of the Hotel Samrat and Rajkumar PW-15 waiter of hotel Samrat have not identified the accused Shakil that he was staying in Hotel Samrat. Bills of the Hotel Samrat were prepared in the name of Shakil Anwar, but Dinesh PW-7 has not identified any of the accused as Shakil Anwar who stayed in the hotel. Waiter of the hotel Rajkumar PW-15 has not identified any of the accused in this respect that he stayed in the hotel. There is no evidence that Shakil was present at the time of the incident, when the bag containing the amount of Rs. 1.5 lacs was snatched from Mohanlal and Pappu Sardar was murdered by one of the accused person. There is no evidence that Shakil was the person, who fired on Mohanlal and Pappu Sardarji.

Therefore, on the basis of the above discussions, we are of the view that in this case, from the prosecution evidence, it was not proved that the accused Shakil was involved in this incident and he was present at the time of the incident and he fired on Mohanlal and snatched the bag containing the amount of Rs. 1.5 lacs from him and thereafter, fired on Pappu Sardarji and murdered him. Therefore, appellant/accused Shakil was not liable to be convicted, hence the appeal filed by the appellant Shakil deserves to be allowed. Therefore, on the basis of the above discussions, this appeal is allowed and the appellant Shakil is acquitted from the charges under sections 302 read with section 120B, 307 read with section 120B and 394 read with section 120B of the IPC. He is in jail; he be released immediately, if not required in any other offence. Hence ordered accordingly.