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HIGH COURT OF MADHYA PRADESH: JABALPUR
CRIMINAL APPEAL NO.984 OF 1995
Shera alias Sher Mohd.
Vs
State of Madhya Pradesh
Present : Hon. Shri Justice J.K. Maheshwari
For appellant: Shri Anil Khare, Advocate
For respondent : Ms Sheetal Dubey, Government Advocate
JUDGMENT
(25/06/2010)
This judgment shall also govern the disposal of Criminal Appeal
No.817/1995 (Lakhansingh Vs. State of M.P.) and Criminal Appeal
No.917/1995 (Pappoo alias Vijay Singh Vs. State of M.P.).
2. All the three appeals have been filed against the judgment dated
30/05/1995 passed by II Additional Sessions Judge, Panna in Sessions Trial
No.32/1990, whereby all the accused persons were convicted for the offence
under Section 399 read with Section 402 of IPC and directed to suffer five
years’ rigorous imprisonment to each and fine of Rs.1000/-, in default of
payment of fine, further six months’ imprisonment each under Section 399 of
IPC and to suffer three years’ rigorous imprisonment to each and fine of
Rs.500/-, in default of payment of fine, further three months’ rigorous
imprisonment each under Section 402 of IPC.
3. As per prosecution case, SHO, Dharampur R.P.S. Parihar (PW-9)
received an intimation on 19/1/1990 from the informer that accused Shera and
other co-accused persons are making a plan for the commission of
robbery/dacoity in the house of Munshilal (PW-8) of village Nizampur for which
they are assembled near the Devi temple situated at village Ramnagar along
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with deadly weapons. Rojnamcha entry was made and the intimation was given
to the Superintendent of Police, Panna and two other police stations calling the
force at Police Station Dharampur. The Deputy Superintendent of Police came
along with the force and Azim Khan, SHO, Shah Nagar also reached to
Dharampur Police Station. Independent witnesses were also called. Then the
police party proceeded to the spot. Before village Ramnagar three police parties
were constituted to surround the accused persons by three sides. At that time
accused persons were sitting along with other associates on the spot and
planning to commit robbery/dacoity in the house of Munshilal (PW-8). The
police parties alarmed them. Four accused persons were caught hold at the
spot and some of them succeeded in fleeing away, hence the offence under
Section 399/402 of IPC was registered.
4. After investigation challan was filed before the Judicial Magistrate First
Class, Fatehgarh , Ajaygarh and as the case is triable by the Court of Session,
however committed the case to the competent court. Charges under Section
399 read with Section 402 of IPC were framed against all the accused persons
and they were tried together. During the trial one of the accused, namely, Jhallu
Raja alias Rudra Pratap Singh has died, however, proceedings stood abated
against him and remaining three accused persons, namely, Shera alias Sher
Mohammad, Pappu alias Vijay Singh and Lakhan Singh were convicted by the
impugned judgment and directed to undergo the imprisonment as
aforementioned.
5. The Trial Court after considering the statement of R.P.S. Parihar (PW-9)
recorded a finding that no plausible explanation is available of assembling the
accused persons at such a far place near Devi Temple. It is also held that no
explanation has been put forth by the accused persons as to why they were
assembled near Devi Temple. Considering all these aspects, charge under
Section 399/402 of IPC has been found to be proved against all the accused
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persons.
6. Shri Anil Khare and Shri Siddhartha Datt, learned counsel appearing for
the appellants submit that no cogent evidence is available to show that on the
basis of merely assembling the accused persons at one place it can be inferred
that they have assembled for the commission of robbery/dacoity. However, the
finding recorded by the Trial Court is unsustainable in law. Reliance has been
placed on the judgment of the Apex Court in the case of Chaturi Yadav and
others Vs. State of Bihar, AIR 1979 SC 1412. It is urged by the learned
counsel that the Apex Court has opined that merely assembly of the accused
persons at the lonely spot with deadly weapons does not by itself prove that
they had assembled for the purpose of committing the dacoity or for making
preparations to accomplish that object. In addition to the aforesaid contention,
my attention has been drawn to the fact that the intimation from the informer
was received at about 3.00 P.M. On 19.1.1990 and the raid was conducted at
12.30 A.M. Of 20.1.1990. However, from the time of receiving the information,
more than 9 hours have passed away, therefore, it cannot be presumed that the
accused persons who wanted to commit robbery/dacoity shall remain sitting at
one place for such a long time. My attention has further been drawn to the fact
that the FIR has been lodged in the Police Station at 2.30 A.M. on 20.1.1990.
The crime number may be indicated after registration of the FIR while on the
Dehati Nalish (Ex.P-9) which is registered at 9.30 P.M. on 19.1.1990 by the
same SHO near Devi Temple and the crime number has been specified therein.
Further mere Arrest Memo (Ex.P-1) of the accused Shera, Pappoo, Jhallu and
Lakhan which is at 2.30 A.M. on 20/1/1990 bears the same crime number, in
fact, on conduction of the raid at 12.30 A.M. and they should have been
arrested on the spot, because the FIR has been lodged at 2.30 therefore the
crime number may not be possibly mentioned on Arrest Memo. In view of the
aforesaid fact, the entire prosecution case has been concocted at the police
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station for the reasons best known to the prosecution agency. Therefore, the
learned counsel urged that the conviction of the appellant and the sentence
passed by the Trial Court may be set aside.
7. On the other hand Ms Sheetal Dubey, learned Government Advocate
appearing on behalf of the respondent/ State has argued in support of the
finding recorded by the Trial Court and it is urged that as per the statement of
R.P.S. Parihar (PW-9) it is apparent that he has heard the conversation of the
accused persons about 12-15 foot steps regarding commission of the
robbery/dacoity. Some of the accused persons were caught hold and arrested
on the spot, however, the prosecution story cannot be doubted merely on
account of putting the crime number in Dehati Nalish registered at 9.30 on
19.1.1990 and in the Arrest Memo. It is further urged by the learned
Government Advocate that merely mentioning the crime number in the Arrest
Memo as well as the Dehati Nalish would be amounting to only irregularity.
However on such irregularity the prosecution case cannot be doubted,
particularly when the finding of the guilt and conviction has been recorded by
the Trial Court. In view of the said submission, it is urged that the finding of
conviction and the judgment of the Trial Court deserves to be upheld.
8. Having heard the rival contentions of learned counsel appearing for the
parties, I find much substance in the argument of learned counsel appearing on
behalf of the accused/appellant. Looking to the prosecution story, it is apparent
that an information was received by R.P.S. Parihar, SHO of Police Station,
Dharampur from informant at 3.00 P.M. on 19/1/1990. The raid was conducted
at 12.30 in the night. It cannot be accepted by a man of common prudence that
a person who wants to commit robbery/dacoity shall wait at one place for about
more than 9 hours. Simultaneously the Dehati Nalish recorded by the
prosecution agency at 9.30 bears the crime number though the FIR was
registered for the said incident at 2.30 on 20/1/1990 i.e. the next day. However,
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prior to the registration of FIR, crime number cannot be mentioned in the Dehati
Nalish. It is apparent that the raid was conducted at 12.30 on 20/1/1990. Four
persons, namely, Shera @ Sher Mohammad, Pappoo alias Vijay Singh, Jhallu
Raja alias Rudra Pratap Singh and Lakhan Singh were arrested from the spot.
The Arrest Memo was prepared at 2.30 near Ram Nagar Devi Temple while the
FIR has been registered at the same time at 2.30 in the Police Station. In the
Arrest Memo the crime number has been specified. No explanation has come
forth in the prosecution case regarding such discrepancies. The Apex Court in
the case of Chaturi Yadav (supra) in para 4 of its judgment has observed as
under :-
“The courts below have drawn the inference
that the appellants were guilty under both the
offences merely from the fact that they had
assembled at a lonely place at 1 A.M. and
could give no explanation for their presence
at that odd hour of the night, Mr. Misra
appearing for the appellant submitted that
taking the prosecution case at its face value,
there is no evidence to show that the
appellants had assembled for the purpose of
committing a dacoity or they had made any
preparation for committing the same. We are
of the opinion that the contention raised by
the learned counsel for the appellants is well
founded and must prevail. The evidence led
by the prosecution merely shows that eight
persons were found in the school with guns,
some had cartridges and others ran away.
The mere fact that these persons were found
at 1 A.M. Does not, by itself, prove that the
appellants had assembled for the purpose of
committing dacoity or for making preparations
to accomplish that object.”
9. In view of the aforesaid, this Court is of the considered opinion that the
charge under Section 399 read with Section 402 of IPC has not been
established by the prosecution against the appellant beyond reasonable doubt.
10. Resultantly, the appeal is allowed. The conviction and the sentence as
directed by the Trial Court by the impugned judgment is hereby set aside.
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Appellant is acquitted of the charge under Section 399 read with Section 402 of
IPC, consequently his bail bonds shall stand discharged.
(J.K. Maheshwari)
Judge
dv