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2012 DIGILAW 1187 (MP)

Kailash v. State of M. P.

2012-11-20

ANIL SHARMA

body2012
JUDGMENT 1. This order shall govern the disposit of Criminal Appeal No. 506/2003 {Kailash Vs. State of M.P.} and Criminal Appeal No. 550/2003 {Madanlal Vs. M.P.} arising out of common judgment dated 3.9.2003 passed by learned First Additional Sessions Judge, Guna is S.T. No. 264/2001. 2. Both the appellants have filed these appeals against the judgment dated 3.9.2003 passed by learned First Additional Sessions Judge. Guna is S.T. No. 264/2001 whereby they have been convicted for the offence under section 394 of IPC and sentenced to undergo 5 year’s RI with fine of Rs. 500/- each with default stipulation. 3. Brief facts of the case in narrow compass are that on 9.6.2001 at about 5 a.m. the complainant Sharafat Ali was going for selling the mangoes towards village Akoda and when he was in the way, it is alleged that the appellant -Kailash armed with GADSI, appellant - Madanlal armed with Lathi and another co-accused Hariram armed with Lathi have beaten the complainant and snatched his watch, wallet and shoes. On report of complainant, after investigation challan has been filed and learned trial Court after trial convicted the appellants for the offence under section 394 of IPC and sentenced them as mentioned in paragraph 2 of the judgment and acquitted the appellants for the offence under section 394/398 of IPC. 4. On behalf of appellant - Kailash, learned counsel for the appellant submitted that learned trial Court is not justified in convicting the appellant - Kailash despite the finding being recorded in paragraphs 19 and 20 of the impugned judgment in which it has been held by learned trial Court that the wallet and rupees which alleged to have been seized on the memorandum of appellant - Kailash have been received by the police earlier and thereafter the memorandum and seizure memo have been prepared, therefore, the seizure on the basis of memorandum of appellant - Kailash has not been proved. On the other hand, it is proved that the memorandum and seizure memo has been prepared later on. It has further come in the evidence that appellant - Kailash was having some contumacy with the complainant and learned trial Court has disbelieved this fact. Since the recovery from appellatn - Kailash is doubtful, therefore, he should have been given the benefit of doubt. 5. It has further come in the evidence that appellant - Kailash was having some contumacy with the complainant and learned trial Court has disbelieved this fact. Since the recovery from appellatn - Kailash is doubtful, therefore, he should have been given the benefit of doubt. 5. The recovery of wallet and rupees from appellant - Kailash is doubtful and learned trial Court has also come to the conclusion that memorandum and seizure memo have been prepared later on, therefore, learned trial Court is not justified in convicting the appellant - Kailash. 6. So far as appellant - Madanlal is concerned, the shoes of victim has been seized from him and learned counsel on behalf of appellant - Madanlal submitted that the appellant - Madanlal is in custody for about three years and considering the value of the property which is not more than Rs. 500/- and further considering the fact that the appellant - Madanlal is facing litigation since year 2001, the sentence awarded to the appellant - Madanlal is too harsh and it may be reduced to already undergone by the appellant - Madanlal. 7. During trial, appellant - Madanlal was in custody for 299 days and after passing of the impugned judgment on 3.9.2003 his sentence was suspended on 10.12.2003 and thereafter on jumping the bail he has been sent in custody to undergo the remaining part of sentence on 7.3.2011and since then he is in custody till today. Thus, the total period of custody of Madanlal is more than two half years. 8. Considering the fact that the appellant - Madanlal is facing litigation since year 2001 and the value of the property involved in robbery is about Rs. 500/, the Criminal Appeal bearing No. 550/03 filed by Madanlal is partly allowed maintaining the conviction and fine amount and the sentence awarded to the appellant - Madanlal is reduced to already undergone by him. Appellant - Madanlal is in custody, he be released forthwith. So far as Criminal Appeal No.506/2003 filed by the appellant - Kailash is concerned, the same is allowed, the impugned judgment and conviction passed by learned trial Court is hereby set aside and the appellant - Kailash is acquitted from the charge under section 394 of IPC. Appellant - Kailash is on bail, his bail bond stands discharged and the fine amount deposited by the appellant - Kailash be refunded back to him.