Prasad & Ors Vs. State of M.P  Insc 625 (8 November 2005)
Arun Kumar & A.K. MATHUR W I T H : Criminal Appeal No. 177 of 2000 A.K. MATHUR, J.
Both these appeals are directed against the common judgment dated 27.8.1999
passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur,
therefore they are disposed of by this common order.
These appeals are directed against the judgment passed by the learned
Division Bench of the Madhya Pradesh High Court at Jabalpur dated 27.8.1999
wherein the learned Division Bench has reversed the acquittal of the accused
persons and accepted the State appeal and convicted the appellant namely Kishan
Lal, Mihilal, Labru, Ramswaroop, Mukundi, Phulloo and Mustapha Khan for the
offences of dacoity and murder under Section 395 and 396 IPC and sentenced each
of them to life imprisonment on both counts with fine of Rs.1000/- each, in
default of which they shall undergo further rigorous imprisonment for two years
each. However Lalu, one of the accused, died during the pendency of appeal in
High Court as such appeal abated against him due to his death. Learned Division
Bench also convicted Abbas Khan, Rahim Khan and Narayan Prasad under Section
412 IPC and they were sentenced to rigorous imprisonment for 10 years each and
fine of Rs.2000/- each in default they will further suffer rigorous
imprisonment for two years each. Aggrieved against the aforesaid order appeals
have been filed by the appellants.
We have heard the learned counsel for the parties and perused the record.
The brief facts which are necessary for the disposal of these appeals are
that the FIR was lodged by one Ram Kishore, PW-3 at 1.40 p.m. at P.S. Barahi.
It is alleged that he was sleeping in the Parchhi of the house while his wife
Sushila was sleeping in the inner room of which the doors had been chained from
the outside. At about mid night he noticed 3 persons tying his feet. He woke up
and sat down. One person was lighting a torch and another was tying his feet.
The third was hitting him with a hunter(Koda). Then two persons entered the
room after opening the chain. One person ran out of the house and exploded some
bomb and again approached him and started hitting him. After sometime this man
went to some distance, therefore, he opened his rope and ran to the house of
Bare Gond. Along with Bare Gond he went to the Basti of Dhimars and returned
along with about 20 persons. He then saw three persons running towards the
village. Many other persons from the village had also come there and they chased
the miscreants but returned without catching anybody. On reaching home he
noticed his wife tied with rope and was bleeding from her head. The rope had
been tied around her neck also and she was unconscious. She ultimately
succumbed to injuries. The box was found open and ornaments of gold and silver
were found missing. The details of gold ornaments, sliver ornaments and other
valuable articles were furnished by him.
However, no specific name was mentioned in the FIR. After recovering from
shock, he gave the further list of the gold and other valuable articles missing
from his house. The police took up the investigation and during the course of
the investigation they caught hold of the accused and they were got identified
by Ram Kishore, complainant. It was alleged that there was one more identifying
witness that is Ram Naresh but he was not examined as a witness in court. The
various test identification memos Ex.P-5 to P-15 were prepared identifying the
articles which were recovered from various places on the disclosure made by the
accused persons. Accused Mr.
Kishan Lal made a disclosure statement ex.P-23 on 20.10.1982 which led to
the recovery of 6 silver lachha and one hunter in his village and further led
to the recovery of one pair of silver Bagaliya and one Dhagaliya chikni. These
articles were identified by PW- 3 Ram Kishore before Naib Tehsildar PW-6 Nirmal
Tigga as well as by PW- 20 Kammobai. Likewise a recovery was made from the
Phulloo, Mihilal, Ramswaroop, Abbas Khan, Narayan Prasad, Labru, Mustapha,
Rahim Khan, Lalwa @ Makbhool, Mukundi @ Munanuar.
All these articles recovered at the instance of these accused persons were
duly identified by PW-3 Ram Kishore in identification parade before Naib
Tahsildar. Learned Division Bench has detailed all these recoveries as well as
identification by Ram Kishore & Kammobai, therefore, no useful purpose will
be served by giving out them in detail here.
PW-6 Naib Tehsildar Nirmal Tigga has appeared in witness box and has proved
the identification memos. Shri R.N. Tiwari, the Investigation Officer has given
out the detail about the information given by the accused persons and the
recoveries made thereof.
Investigation was made by the investigation officer from 20.10.82 to
25.10.82. The accused denied the information given by them which led to the
recovery but they did not claim the ornaments. However, the accused Narayan
Prasad asserted that the police took from him 2 pairs of Bagaliya, 2 pairs of
Payal, 2 lachhas, patti, Addhi, these belonged to him and he had purchased them
from Raghuveer on a receipt. He alleged that Thanedar had asked him for a
motorcycle which he declined, so he has been falsely implicated. The important
features in this case is that PW-10 Chanderbhan, PW-11 Ramnarayan Gupta, the
recovery witnesses who have turned hostile. They did not support the testimony
of the prosecution case with regard to recoveries. Learned Division Bench held
that though these persons have turned hostile nonetheless the recovery of these
ornaments of large quantity cannot be planted by the police and secondly that
these ornaments were not claimed by the accused persons except Narayan Prasad.
The trial Judge disbelieved the prosecution version & acquitted them but in
appeal the High Court had reversed the acquittal of these persons and held that
the recoveries of these huge quantity of ornaments which were not claimed by
the accused persons (except Narayan Prasad) is self- evident and learned
Division Bench after reviewing all the evidence of the recovery as well as the
identification, felt persuaded that accused persons are guilty and accordingly
convicted as aforesaid.
Hence the present appeal.
Learned counsel for the appellant has informed us that out of appellants, 3
more appellants died during pendency of appeal, viz.
Ramswaroop, Phulloo and Mustafa Khan. So far as Lalu was concerned, he died
during the pendency of appeal before the High Court as such appeal qua him
stood abated. Accused Ramswaroop, Phulloo & Mustapha Khan died during the
pendency of this appeal here, the appeal qua these appellants also stand
abated. Hence, the present appeal against remaining accused persons.
Learned counsel for the appellant has strenuously urged before us that the
information as well as the recovery which is crucial in this case were not
supported by the independent witnesses, therefore the view taken by the learned
Division Bench cannot be sustained.
Learned counsel for the appellant has urged before us that in view of the
fact that the PW-10 Chanderbhan and PW-11 Ramnarayan both were recovery and
identifying witnesses turned hostile, therefore the information and recovery do
not stand proved.
It is also submitted that identification was done before Naib Tehsildar
Nirmal Tigga but the evidence of Naib Tehsildar also does not inspire
confidence and his evidence does not disclose that whether the ornaments of
similar nature were mixed up or not.
We have considered the testimonies of all these witnesses.
We have gone through the evidence of investigation officer Shri R.N.
Tiwari (PW-4) as well as Naib Tehsildar Nirmal Tigga PW-6, Gulraj Singh
(PW-23) as well as the testimony of Kammobai (PW-20) and Ram Kishore (PW-3).
Statement of these witnesses read together, establishes guilty of these accused
persons despite recovery witnesses turn hostile. The testimony of Ram Kishore
(PW-3) and Kammobai (PW-20) who is worthy of credit and there is no reason to
disbelieve them. Since Sushila Bai wife of PW-3 Ram Kishore died because of the
assault by dacoit PW-20 Kammobai wife of brother of Ram Kishore has identified
the ornaments. Likewise, PW-3 Ram Kishore has identified the accused persons at
the time of identification parade therefore the testimony of all these witneses
support the prosecution case. In cases of such dacoity at mid night it takes
little time for the prosecution to collect evidence as they have to interrogate
many people during the course of the investigation to nab the real culprit. It
is also not unlikely that witnesses fear dacoits, they shirk to come out and
support the prosecution case. But the fact is that the recovery which has been
effected at the instance of the accused persons have not been claimed by
accused persons except Narayan Prasad. However, Narayan Prasad has claimed that
these were purchased by him under a receipt. We will deal the cases of these
three accused persons in the appeal No.175 of 2000 at a later stage. So far as
the accused persons in the appeal 177 of 2000 is concerned, they were charged
under Sections 395 and 396 and none of these accused has claimed this property
which has been recovered at their instance. It is also unlikely that the police
will plant these ornaments so as to implicate these accused persons. some delay
in identification parade or identification of property is likely in cases of
dacoity at mid night and the recovery of the ornaments. The delay is natural in
such cases, it is not fatal as to throw the prosecution case outright. We
failed to understand the reasoning given by the learned trial court as it has
proceeded purely on mechanical way and threw the prosecution case. The fact
that the recovery of these huge quantity of the ornaments have been made at the
instance of the accused persons duly identified by PW 10 & PW- 20 and there
is no possibility of planting the case against the accused persons by the
police. Delay in recovery in such cases is not unusual. Therefore, we are of
the opinion that the view taken by learned Division Bench has correctly found
accused persons guilty and there is no reason to disbelieve the prosecution
Now coming to the three accused persons namely, Narayan Prasad, Rahim Khan
and Abbas Khan under Section 412 IPC for the receiver of the stolen property
pertaining to dacoity and their being sentenced to ten years imprisonment. We
are of the opinion that there is no evidence to show that these accused persons
had full knowledge that the ornaments purchased by them were of subject to
dacoity. These ornaments were recovered from them and Narayan Prasad has
claimed the property as purchased from some person under receipt but that
person has not been examined as a defence witness. Therefore all these accused
persons can at best be charged under Section 411 IPC for receiver of stolen
property. Therefore we convert their offence from 412 IPC to 411 IPC and reduce
their sentence and punish them with imprisonment for three years instead of 10
years under Section 412 IPC. Therefore the appeal No.175 of 2000 is partly
accepted and accused Narayan Prasad, Rahim Khan and Abbas Khan are convicted
and sentenced for a period of three years under Section 411 IPC. They are on
bail, their bail bonds should be cancelled and they should immediately be
arrested and sent to jail to serve out their remaining sentences.
Now coming to the appeal No.177 of 2000 against accused Kishan Lal, Mihilal,
and Mukundi, the conviction and sentence ordered by the learned Division Bench
is maintained. The appeal of appellants; Ramswaroop, Phulloo, Mustapha Khan
stand abated as they have died during pendency of this appeal. The accused are
on bail, their bail bonds are cancelled and they should be sent to jail to
serve out their remaining sentences.