VASU DEO Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) FEELING aggrieved by the judgment and conviction and order of sentence passed by the 1st Additional Sessions Judge, Chhindwara, the appellants have preferred these two appeals. Accused Vasudeo has filed Criminal Appeal No. 934/90 and Deshiram and others have filed Criminal Appeal No. 1023/1990. As both the appeals arise from the same judgment, they are being disposed of by this judgment. The appellants No. 1 to 8 of Criminal Appeal No. 1023/1990 were charged under Sections 395 and 397, Indian Penal Code (Hereinafter referred to as IPC) and appellants No. 9 to 14 were charged under Section 412, IPC. Similarly, appellant Vasudeo of Criminal Appeal No. 934/1990 was also charged under Section 412, IPC. Learned trial Judge has convicted appellants No. 1 to 8 under Sections 395 and 397, IPC and have been ordered to sentence Rigorous Imprisonment for life, appellants No. 9 to 14 have been convicted under Section 412, IPC and similarly appellant Vasudeo of Criminal Appeal No. 934/90 has been convicted under Section 412, IPC and they have been directed to suffer Rigorous Imprisonment for ten years.

(2.) IN brief the case of the prosecution is that in the night of 30/7/1985, complainant Ashok (P.W. 1) and his mother Mst. Kaminibai (P.W.13) were sleeping inside the house, at 12.30 a.m. somebody knocked the door as a result of which, when Ashok opened the door, four persons entered inside the house and said that they will seize the liquor. On being resisted by Ashok, these persons with the aid of axe, sticks and stones assaulted the mother of the complainant. These persons also looted gold and silver ornaments. At that juncture 7 -8 persons armed with axe and lathies were standing outside his house and when complainant Ashok tried to come out from the house, one person pelted stone to him as a result of which his four teeth were broken and he sustained incised wound on his lip. Thereafter all these persons went to the house of his neighbour Kailash where Kailash and his mother were beaten and they also looted gold and silver ornaments, watch and two Amplifiers and when Vimlabai tried to refrain them she was also beaten. Thereafter miscreants entered inside the house of Bhagwan Dade and assaulted his wife Laxmibai, these persons also took away good and silver ornaments from the house of Bhagwan Dade. Thereafter these persons entered into the house of Ithhobazi and gave a 'Sabbal' (iron) blow to him and also caused injuries to his son namely Manohar Rao and Ajab Rao, they also caused 'Marpeet' to Gulab. From the house of Ithhobazi these persons looted ornaments and a torch. After the incident had taken place, Ashok lodged First Information Report (Ex.P/1) on 30/7/1985 at 1.20 hours. On lodging the report, criminal law set in motion. The Investigation Officer sent injured persons for their medical examination, in which fractures were found on the person of Gulab and Laxman. In furtherance to his investigation, the Investigating Officer arrested accused persons namely Tilak, Dilip, Madhu, Ratiram, Deshiram and Jhanak and recorded their memorandums under Section 27 of the Indian Evidence Act. These memorandums are Ex.P/23 to P/28. By these memorandums facts were discovered that these persons handed over the looted ornaments to the ladies who are either their wives, sisters or mothers. These ladies are accused/appellants No. 9 to 14. The Investigating Officer also discovered the fact from these lady accused persons that they have sold the ornaments in a shop of a gold smith of Kamptee town. The memorandums of Section 27 of the Evidence Act of these lady accused persons are Ex.P/29 to P/34. All these memorandums Ex.P/23 to P/34 were recorded on 1/8/1985. Thereafter on 1/8/1985 it is said that ornaments which were found to be 16 in number, were brought by accused Vasudeo and handed over to Station Officer Incharge of Police Station Chhindwara Shri Tiwari. A list Ex.P/37 of these articles was prepared. In furtherance to his investigation, the Investigating Officer recorded memorandums under Section 27 of the Evidence Act of accused Raju and Dhimru and discovered the fact that two Amplifiers which were looted were underground. These memorandums are Ex.P/35 and P/36. These Amplifiers were recovered from Imlikheda. After completing the investigation, a charge sheet was placed and accused persons were charged which we have mentioned hereinabove. The accused persons denied the accusation and pleaded false implication and thereafter they faced trial. In order to proved the charges, prosecution examined as many as 21 witnesses and placed Ex.P/1 to P/41, the documents on record. In their defence, accused persons of Criminal Appeal No. 1023/1990 did not choose to examine any witness, however, accused Vasudeo in his defence, examined himself as D.W.1 and also examined Mst. Kamla Pille, Babu Rao and Ajab Rao as D.W.2 to D.W.4 respectively. Apart from certain other documents, he also submitted certified copy of Criminal Complaint No. 136/85. This complaint was filed by Vasudeo against S.D.A. Tiwari who is Investigating Officer of the present case and S.K. Mishra, Sub Inspector, who is also an associate along with the Investigating Officer under Section 387, 394, 448, 323, 342 read with Section 34 of IPC an under Section 147 of Bombay Police Act. Earlier to filing of this complaint accused Vasudeo lodged a complaint in writing (Ex.D/14) to Police Station Kamptee and when nothing was done by the police in pursuance to his said report, he filed complaint case in the Court of J.M.F.C. VII Court, Nagpur (Ex.D/13). In that case an application under Section 197 (2), Cr. P.C. was filed by I.O. Shri S.D.A. Tiwari and Sub Inspector Shri S.K. Mishra that they be discharged because whatever they did, was in discharge of their official duties. This application was rejected on 3/5.1986 by the Magistrate against which a revision petition before Sessions Judge, Nagpur (Criminal Revision No. 1358/1986) was filed by Shri S.D.A. Tiwari and Shri S.K. Misra but it was dismissed on 19/4/1988, certified copy of which is Ex.D/16. By taking the assistance of these documents and the defence witnesses examined by him, apart from his own testimony, the defence of accused Vasudeo is that two Police Inspectors along with some ladies came to his shop on 1/8/1985 and started beating him by lathi, he was hand -cuffed and similar treatment was done to his brother Ghanshyam. These two Inspectors were saying that the ladies who were with them, have sold ornaments to him and insisted to hand over those ornaments. According to accused Vasudeo, neither he had bought any ornament from these ladies nor he is acquainted with them. These two Inspectors carried him to Police Station Kamptee, where he was brutally beaten, thereafter Station Officer Incharge of Kamptee Police Station Shri Pathak arrived there and he asked Investigating Officer Shri Tiwari to give a receipt to Vasudeo of the articles which are seized from his shop and in this manner his signatures was obtained on Ex. P/37.

(3.) IN a case under Section 395, IPC, if the accused persons are unknown to the victims, their identification and recovery of the articles from them plays a vital role, indeed the fate of a case would depend upon these two essential ingredients.