CF000005857 1 T L HIuH pCURP OF MADHYh PRaD:Sh kT UA ALPUR G Cr;A.&o. v g2? of i994 Ampellants: f§1. Mishrilgl‘éliés Mishriya{:a§é& 4S yéars: Accu ed W sén 0f Rama>Par&i, resident of Muradpur, (1n Jail} E 1 E i ‘ \ .1‘t‘ L f L673 \fi ; \2 "°§C(t/ > _],+mJ/¢1QQ;%ww P.5.Bajranggarh/fDigtrict Gunai >/"A; r ‘I2i B%bulal£a1ias Bavadiyaf'aged 50 years, ‘ son of‘Ramsar ?ardi, resident o£ Muradpur. 9 S Bajrgnggarh, 3istrict Guna/ ‘33 Daulat alias Daula, aged 25 years, sonaof‘Mehtab Pardi, resident of Muradpur, P.S.Bajranggarh, District Guna.i ‘1 ‘ Pavallya/allds ynvan, aged 35 years, E51 QC,” son bi Uaans1ngh ?ardl, rasidegt of " ,é Blluyat&ala. / / Euasg, age& 25 yeaxs, son of wevratl .~ alias Revatl Pari1 rLSldent c£ Muradpur, P v.3ajranggdrh, Dlstrlct 3ané, ‘ # Mltthllal,lage& 35’yearS, 50m $f Bhaiyaial iJardi, resident cf .Aloepibagm$¢1ahaba§,U.P. Pasvaya,}agad 2g yeaE£¢‘son of Udansihgh " Par&i, resident o£ Bilayatkala, P.&. Eadvara, 91ctrLCt Jabalpur // 1 Anup allas Anop,(aged 30 years, son of Arjun Parél, roslueno of Muradpur. “ ;n~hu allas $hambhu Olngh, agad 4O years, ‘son ofAQOV}na Pardl. re¢1&ont of Muradpur .SBarngarh, Districtrwuna. ?.jag N o ,v, ; _ 2 _ _10. Dauliyg/alias Daulatf’aged'40 years, s0n70£ Udesingh Pardi, residepk of Bilayatkala,-P.S.Badvara, Bistrictl%aba1§ur. ’ ‘J V€r5u5’ J i ‘ ‘ i x ‘ ‘ } VéRespondent: Th$ State of Qadhya Fradesh[/ l I I ‘CRIMINAL AF?EAL‘UNDER $Ec“I0N 374 (2y‘ GE?THE CODE OF CRIMINAL PROCEDURE11973 / -ll'v<_ “ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mt. Justice Pritinker Diwaker) Criminal Appeal No. 329 of 1994 Mishrilal alias Mishriya and others APPELLANTS VERSUS RESPONDENT State of Madhya Pradesh Shri Ravi Bhagat counsel for the appellants. Shri Vlvek Sharfma PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE V . JUDGMENT (07.07.2010) This aQpeal is girected against the judgment angl order dated 25.3.1994 passed by Additional Sessions Judge, Durg in Sessions Trial No. 343/1992 convicting the accused/appellants under Segtions 450, 395 and 397} IPC and sentencing each of them to undergo rigorous imprisonment for five years, ten years and seven years respectively. 2. Case of the prosecution in brief is that on 4.2.1992 at about 2—3 am. accused/appellants had committed dacoity in the house of one Ratan Singh (PW-1) and took away the gold and silver ornaments worth Rs. 43,000. FIR Ex. P-2 was lodged by Bakhtawar Singh (PW-2) on the same day at about 3.35 a.m. alleging that 8~1O persons who had covered their faces with cloth entered the house of Ratan Singh (PW-1) and took away various articles. All the accused/appellants were arrested by the police on r 3.3.1992 for commission of some other dacoity. lt is the case of the prosecution that on 3.3.1992 itself identification parade was conducted vide EX. P-1, P-3, P-5, P-6 and P-8 in which the accused/appellants have been identified by Ratan Singh (PW—1), Bhaktawar Singh (PW-2), Gopinath (PW-3), Rakesh Kumar (PW-4) and Tuman Lal Sahu (PW-5). 3. (in order to prove th‘e guilt efthe accused/appellants, prosecution has examined six witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case . -2_ 4. After hearing the parties and perusing the material available on record the Court below has convicted‘ and sentenced the accused/appenants as mentioned above; 5. Counsel for the appellants submits that admittedly wherf‘ all the accused: persons have committed the offence after covering their faces‘ questionj of their identification does not arise. He submits that in the FIR itself it Has been categorically mentioned that all the accused persons had covered their faces with cloth. Even in the statements recorded under Section ;161 of the Code of Criminal Procedure, the witnesses to the identification parade have categorically stated that the accused persons had coveFed their faces with cloth. He submits that no seizure whatsoever thas been made from the accused/appellants. According to him, the test identificatiom parade was conducted by the Executive Magistrate namely GM. Ansari but he has-not been examined by the prosecution. He submits that even the investigating officer has not been examined in this case. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that though as per the FIR and the statements recorded under Section 161 of the Code of Criminal Procedure, the accused persons had covered their faces with cloth yet Ratan Singh (PW-1), Bhaktawar Singh (PW—2) and Gopinath (PW—3) have categorically stated that when the offence was being committed, due to their face being uncovered, they could see their faces. He submits that even if no seizure has been made from the accused/appellants and the executive magistrate has not been examined‘by the prosecution, it will not vitiaete the entire trial and thus conviction of the accused/appellants is in accd'rdance with law. He submits that non examination of the investigating officer will be of no help to the accused/appellants. 7. Heard counsel for the parties and perused the material available on record. 8. Ratan Singh (PW-1) in whose house the dacoity was committed has stated that on the date of incident in one room of the first floor of his house he and his Wife were sleeping while m the other his daughter was sleeping and his other daughters and nephews were in the ground floor According to him, after hearing the v0ice of some persons when he went in that a? hi ,i‘l l l i U .¢:\ @3. —3_ direction, he found that 10—12 persons were there together in one room. When he asked them as to what was the matter, they surrounded him and started beating him However when he raised hue and cry the accused/appeiiants fled away With the ornaments This Witness has stated that as the light was on he could see the accused persons ln paragraph 20 of his cross examination this Witness admits that before the police he had disclosed that the persons Who entered his house had covered their faces With cloth but when the scuffle ensued, faces of some of them got uncoyered. On being asked as to why he had not disclosed this thing earlier, ihe has stated that as he was injured at that time, he could not do so. Bakhtawar Singh (PW-2) — the lodger of the FIR has stated that on the date of incident after hearing the bark of the dogs he got up and switched on the light of his room, four persons had caught hold of him. According to him, one oflthem had'put the sword on his neck and asked him not to raise hue and cry. However, in the identification parade When this Witness was asked to identify the two persons out of ten, he could net do that. Thus if the statement of this Witness is compared with the FIR and the statement recorded under Section 161 of the Code of Criminal Procedure it is clear that at the time of entry in the house accused persons had covered their faces. Gopinath (PW~3) has stated that at the relevant time he was working as watchman of Ratan Singh (PW-1). He has stated that on the date of incident 15—20 dacoits came there, caught hold of him and asked him to keep quiet or else they would finish him. ln paragraph 8 of his deposition, this Witness has stated that the faces of 4-5 persons got uncovered and therefore he could identify them. Hovgever, before the i police this Witness stated that all the persons had covered their faces With cloth. According to this Witness, he informed the police that he had‘ identified the accused persons but as to Why it is not mentioned in his 1 statement recorded under Section 161 Cr.P.C. he could not tell the reason there for Rakesh Kumar (PW 4) has stated that on the date of incident 3— l 4 persons came there and asked for the lighter and after smoking Cigarette ’\ Lu e . they enqutred about the house of Ratan Singh ln respect of identification E of the accused persons, statement of this Witness made in the Court does not tally with one recorded under Sec‘tion 161 of the Code of Criminal Procedure. Tuman Lal Sahu (PW—5) Who was the guard of the colony has stated that-some persons were seen by him at the place of incident but as i ‘ \\(I‘\' \lI _q’_ their faces were covered. Dilip Chandrikapure (PW—6) is the Patwari who had prepared the spot map. 9. The only question to be decided by this Court is whether identification of the accused persons was heid properly and whether the statements of the eyewitnesses to that effect are in accordance with law? in their statements under section 161 of the Code of Criminal Procedure aii the witnesses have categoricaiiy stated that the persons who entered the house of Ratan Singh (PW 1) had covered their faces Even the FIR also mentions the same thing However in the statement recorded before the Court the Witnesses have stated that while committing the offence faces of some of the accused persons got uncovered and thus they could see and identify them in the identification parade. Keeping these inconsistencies in the‘statements of the witnesses, this~Court does not think it proper to implicitly rely on the same. Secondly, as no seizure has been made from any of the accused persons, the case otthe prosecution appearsf to be doubtful. Most important fact is that test identification parade “was conducted by the Executive Magistrate but he himself has not been examined by the prosecution and not even the investigating officer has %‘3 been put to examination before the Court. All these lacunae in the case of the prosecution create doubt regarding the truthfulness of its stand. 10. in view of what has been discussed above, the findings of the Court below convicting and sentencing the accused/appellants as mentioned above are not sustainable in the eye of law Accordingly, the appeal is allowed Judgment under challenge is set aSide Accused/appellants are acqUitted of the charges levelled against them As they are already on bail their bail bonds stand discharged. r "f; ’ Sdl- Pntmker Dtwaker V Judge i