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Mahendra Adiwasi vs State Of M.P. on 25 May, 2018

1
Criminal Appeal No.182/2009

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DB : SHEEL NAGU, J. VIVEK AGARWAL, J.)

Criminal Appeal No.182/2009
Mahendra Adiwasi
Vs.
State of MP.

Ms. Sudha Shrivastava, learned counsel for the appellant from
Legal Aid.
Shri D.S. Tomar, learned Public Prosecutor for the respondent-
State.
Date of hearing : 21.05.2018.

JUDGMENT

(Delivered on 25th May, 2018)
Per Vivek Agarwal, J.

The appellant has filed this Criminal Appeal under the
provisions of Section 374 of the Criminal Procedure Code
being aggrieved by judgment dated 26.12.2008 passed in
Sessions Case No.40/2007 by the Court of Special Judge
(Dacoity Affected Area), Gwalior, whereby the appellant has
been convicted under the provisions of Section 364-A of the
Indian Penal Code (for short ‘IPC’) with life imprisonment and
fine of Rs.1,000/-; in default of payment of fine, further
rigorous imprisonment of 10 months.

2. The prosecution case in short is that in the intervening
night of 30-31.12.2003, appellant Mahendra Adiwasi alongwith
his four accomplices had abducted Chandan Singh, Papendra
Singh, Raju, Kalla Dubey, Bhagat Singh, Maan Singh, Maniram
and Harcharan from village Amraul and Mahuch falling under
Police Station Antri, District Gwalior. It is alleged that ransom
was demanded for their release and the abductees were
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Criminal Appeal No.182/2009

threatened to be killed. Therefore, the charges were framed
under the provisions of Sections 364-A and 302 of IPC and
Section 13 of the Madhya Pradesh Dakaity Avam Vyapaharan
Prabhavit Kshetra Ahdiniyam, 1981 (for short ‘MPDVPK
Adhiniyam, 1981’) looking to the fact that the area from where
abduction had taken place for ransom is a notified area under
the provisions of MPDVPK Adhiniyam, 1981.

3. As per the prosecution story, the abductees were
carrying out their agricultural operations when they were
abducted and during investigation, it was revealed that this
incident was given effect to by prized Gopal son of Banshilal
Gadaria, Pratap son of Banshilal Gadaria, Mahendra Adiwasi,
Hari Jatav, Ramdua and two other companions. It is also an
admitted position that on 12.01.2004, in an encounter,
abductees were released and in such encounter, dacoit
Ramdua was killed by the Police party, whereas abductee Maan
Singh was also killed.

4. Chargesheet was filed in absence of the accused under
the provisions of Sections 364-A, 365, 125-B of IPC read with
Sections 11/13 of MPDVPK Adhiniyam, 1981 and Sections 25
and 27 of the Arms Act. Appellant was formally arrested with
permission of the Court after he was arrested in some other
crime.

5. Learned Special Judge framed the following issues,
namely –

1) Whether accused Mahendra Singh in the intervening
night of 30-31.12.2003 alongwith four other co-accused
had abducted Chandan Singh, Papendra Singh, Raju,
Kalla Dubey, Bhagat Singh, Maan Singh, Maniram and
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Criminal Appeal No.182/2009

Harcharan and demanded ransom for their release from
their family members; otherwise they threatened them
with their lives;

2) Whether the appellant had killed Maan Singh for demand
of ransom on the aforesaid date, place and time
alongwith the co-accused;

3) Whether the accused on the said date, place and time
committed the aforesaid acts so as to constitute crime
under the provisions of MPDVPK Adhiniyam, 1981; and

4) Whether any offence is proved against the accused and,
if yes, then what punishment?

6. The appellant abjured his guilt and pleaded his
innocence and prayed for quashing of the charges.

7. It is the contention of the learned counsel for the
appellant that there is no involvement of the appellant in the
crime and in fact, FIR (Ex.P/1) has been lodged on 31.12.2003
by one of the abductees Chandan Singh son of Raghunath
Singh Rawat (PW1), whereas the author of the FIR has
categorically mentioned in para 2 of his examination-in-chief
that because of dark night, he could not identify any of the
accused persons and cannot say whether the accused present
in the Court was part of the team which abducted them for
ransom or not. He himself said that he has a diminished vision.
However, he admitted recording of FIR (Ex.P/1) and also
preparation of spot map from where abduction had taken
place. In cross-examination, he admitted that since he was not
already knowing the dacoits and if their names were wrongly
taken, then he cannot say anything.

8. It is submitted that there was no Test Identification
4
Criminal Appeal No.182/2009

Parade conducted and PW2 Papendra Rawat had for the first
time identified the appellant in the Court. It is submitted that
demand of ransom has not been proved nor any ransom was
paid. Abductees were released in an encounter. It is further
submitted that for want of ransom, offence under Section 364-
A of IPC is not made out. It is also submitted that the
allegation of killing Maan Singh is not on the appellant,
therefore, the appellant has been wrongly convicted.

9. It is also pointed out that both PW2 Papendra Rawat and
PW3 Raju Kushwah have admitted that they are not aware as
to bullet of which of the accused had killed Maan Singh and,
therefore, the appellant has been discharged from the charge
of murder of Maan Singh.

10. Learned counsel for the appellant has placed reliance on
the judgment of the Madhya Pradesh High Court in the case of
Babloo v. State of MP as reported in ILR (2009) MP
1780, wherein it has been held that if there is delay in
conducting TIP and there is no material to show that the
accused were not kept baparda, then identification by the
witness is doubtful because there is no evidence to indicate
that the accused was kept baparda.

11. Similarly, reliance has been placed on the judgment of
the Hon’ble Supreme Court in the case of Dana Yadav alias
Dahu Others v. State of Bihar as reported in AIR
2002 SC 3325, wherein it has been held that if identification
of the accused is made for the first time in Court by witnesses
more than two years from the date of incident, it cannot be
relied upon specially when identification in Court is not
corroborated either by previous identification in TIP or any
5
Criminal Appeal No.182/2009

other evidence. Conviction of the accused cannot be based
upon it. However, it has been held that if the accused were
already known to the complainant or the witnesses, then
conducting of TIP will be waste of money and resources.

12. Learned counsel for the appellant has also placed
reliance on the judgment of the Hon’ble Supreme Court in the
case of Ravi alias Ravichandran v. State Rep. by
Inspector of Police as reported in AIR 2007 SC 1729,
wherein it has been held that if the FIR is against unknown
persons, then TIP should be held as early as possible.
Conviction based on vague identification is liable to be set
aside.

13. Reliance has also been placed on the judgment of this
High Court in the case of Mohar Singh Ors. v. State of
M.P. as reported in 2011 Cr.L.R. (MP) 185, wherein it has
been held that if the accused persons were not already known
to the abductees, then the dock identification for the first time
in the Court is not a reliable piece of evidence.

14. Placing reliance on such judgments, it is submitted that
the author of the FIR Chandan Singh (PW1) has admitted that
he had given the names of the accused persons on the basis
of the names which they were being taken by the team
members. He has admitted that he had not identified any of
the accused persons because of incident taking place in dark
and also because of his diminished vision. It is pointed out
that PW2 Papendra Rawat in his cross-examination in para 5
has admitted that at the time of abduction, faces of the
accused were not visible. They had not personally given their
names, but were calling each other. In para 6, he has admitted
6
Criminal Appeal No.182/2009

that prior to abduction, he was not knowing any of the
accused either by name or their face. He also admitted that
TIP was never conducted. He also admitted that he does not
remember which of the accused was wielding which of the
weapon.

15. Similarly, PW3 Raju Kushwah has contradicted PW2
Papendra Rawat and has categorically mentioned that all the
accused persons were having mustaches and beards, however,
he has supported the fact that he too was not knowing any of
the accused persons prior to abduction. PW3 Raju Kushwah
has admitted that at the time of encounter, their hands were
tied with chain. However, he denied that chain was opened by
the Police.

16. PW4 Banti Kushwah too has identified the appellant in
the Court. He admitted in cross-examination in para 6 that
there are several persons in the name of Mahendra. He
admitted that there may be some other persons in the name of
Mahendra other than the accused who was present in the
Court. He further affirms in para 7 that names of the
abductees were given by the Police.

17. It is also submitted that PW6 S.S. Chauhan, Retired Sub-
Inspector has admitted that the complainant had never
informed that as to what amount of ransom is to be sent and
to whom. He also admitted that there is no mention of the fact
that which of the accused had asked for the ransom. It is also
admitted that which of the accused had caught hold which of
the abductee, is not mentioned in the FIR. He has also
admitted that Nattha had not disclosed the identity of any of
the accused and had only given their names. He further
7
Criminal Appeal No.182/2009

admitted that Nattha had given the names of the accused on
the basis of the information received from Chandan Rawat
(PW1).

18. In view of such facts, it is submitted that since PW4 Banti
Kushwah has admitted that the names of the abductors have
been given by the Police, it is a bogus case prepared against
the appellant and, therefore, his appeal deserves to be allowed
and the impugned judgment deserves to be set aside.

19. The only issue involved in this appeal is whether on the
basis of dock identification in the Court after more than four
years of the incident and there being no material to
corroborate the identification, can conviction be upheld.

20. Learned special Judge has placed reliance on the
judgment of the Hon’ble Supreme Court in the case of
Malkhan Singh Others v. State of MP as reported in
(2003) 5 SCC 746AIR 2003 SC 2669, wherein it has
been held that in a case of rape if the prosecutrix has
identified the accused in the Court, then her evidence can be
treated to be reliable and conviction can be based on it even if
no TIP is held. In para 16, it has been held that it is well
settled that the substantive evidence is the evidence of
identification in Court and the test identification parade
provides corroboration to the identification of the witness in
Court, if required. However, what weight must be attached to
the evidence of identification in Court, which is not preceded
by a test identification parade, is a matter for the Courts of
fact to examine. However, in the present case, the Special
Judge has not examined the aspect of delay inasmuch as PW2
Papendra Rawat and PW3 Raju Kushwah had given their
8
Criminal Appeal No.182/2009

statements before the Court on 04.03.2008, whereas the
incident had taken place in December 2003. Therefore, their
statements were recorded almost after more than four years
and, therefore, the Court was required to dwell into the aspect
of span of human memory to identify a person after a lapse of
more than four years and what will be the impact of such
identification in the light of the law laid down by the Hon’ble
Supreme court in the case of Dana Yadav alias Dahu
Others (supra). This aspect has finer ramifications in view of
the evidence of PW4 Banti Kushwah, who has admitted that
the names of the dacoits were given to him by the Police.

21. In view of the provisions contained in Section 9 of the
Evidence act, the statements of the witnesses PW1 Chandan
Singh Rawat, PW2 Papendra Rawat, PW3 Raju Kushwah and
PW4 Banti Kushwah contain special impacts when they
admitted that at the time of abduction, they had not identified
anybody inasmuch as it was dark. PW2 Papendra Rawat and
PW3 Raju Kushwah submit that they had identified the
accused in the Court as they had stayed with them for 12-13
days. However, there is contradiction in the statement given by
PW2 Papendra Rawat, who says that except for one accused
Pratap, none of them was having beard and mustaches,
whereas PW3 Raju Kushwah admitted that all the accused
persons were having beard and mustaches coupled with the
fact that PW4 Banti Kushwah has admitted of Police giving the
names of the accused and their statements were recorded in
the Court after a lapse of more than four years of the incident
of their release. Sufficient doubt is created as to the
authenticity of the identification in the Court. It is also
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Criminal Appeal No.182/2009

important to point out that in TIP, persons of similar age and
physical description are mixed-up to understand the capability
of a witness to identify from amongst several persons made to
stand in a queue; whereas, in the present case, the trial was
conducted against an isolated person as other accused persons
were absconding. It has also come on record that he was
arrested in another case and with the permission of the Court
arrested in the present case, therefore, the Police had
sufficient opportunity to introduce the accused. No reason has
been assigned to not to conduct TIP specially when the
prosecution witnesses have admitted that they were not
knowing the accused before hand.

22. In the case of Suresh Chandra Bahri v. State of
Bihar as reported in AIR 1994 SC 2420, it has been held
that it is well settled law that the statements of the witness in
the Court is his evidence, but when the accused person is not
known to the witness concerned, then identification of the
accused by the witness soon after his arrest is of great
importance because it furnishes assurance that the
investigation is proceeding on right lines in addition to furnish
corroboration of the evidence to be given by the witness later
in the Court at the trial.

23. Learned Special Judge in the case of Ravi alias
Ravichandran v. State Rep. by Inspector of Police as
reported in AIR 2007 SC 1729 has held that TIP is not a
substantive piece of evidence. It has been held that when the
FIR is lodged against unknown person, TIP should be held as
early as possible. The fact of the matter is that the names of
the accused were given on the basis of their calling such
10
Criminal Appeal No.182/2009

names without there being any such identification as has been
admitted by PW6 S.S.Chauhan. However, the decision of the
Hon’ble Supreme Court is also to the effect that though TIP is
not substantive piece of evidence, yet the Court conducting
trial is required to look into the circumstances before taking
any decision on to the aspect of corroboration. In the present
case, this judgment has been applied in isolation without
referring to the fact that identification of the accused in the
Court was after more than four years of the incident.

24. The prosecution has failed to prove the case beyond
reasonable doubt and, therefore, the conviction of the
appellant merely on the basis of the Court identification that
too after more than four years of the incident gives rise to
suspicion and the benefit of doubt may be extended to the
appellant. Therefore, this Court is of the opinion that the
Special Judge has erred in not appreciating the fact that there
was no proper identification of the accused in view of the
contradictions of the statements given by PW2 Papendra
Rawat, PW3 Raju Kushwah and PW4 Banti Kushwah about
their specific features. There is no statement under Section
161, Cr.P.C. recorded by the Police after release of the
abductees PW2 Papendra Rawat, PW3 Raju Kushwah and PW4
Banti Kushwah giving details of the abductors and, therefore,
the circumstances, under which test identification in the Court
has been carried out, are against the principle of law laid down
in the case of Dana Yadav (supra).

25. Thus, the conviction solely on the basis of dock
identification that too after such a long period is not
sustainable and, therefore, the impugned judgment is set
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Criminal Appeal No.182/2009

aside. The appeal is allowed. Accordingly, the appellant, who is
in jail, be released forthwith.

(Sheel Nagu) (Vivek Agarwal)
Judge Judge
25.05.2018 25.05.2018

Mehfooz/- Digitally signed by MEHFOOZ AHMED
Date: 2018.05.26 16:41:09 +05’30’

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