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Madhya Pradesh High Court · body

2018 DIGILAW 1033 (MP)

Premnarayan v. State of M. P.

2018-12-18

ANAND PATHAK

body2018
ORDER 1. Present revision petition under section 397 of the Code of Criminal Procedure, 1973 has been preferred by the petitioners against a common impugned judgment of conviction and sentence passed by the Sessions Judge, Ashoknagar in Criminal Appeals No.122/2018, 124/2018, 125/2018 and 126/2018 confirming the impugned judgment of conviction and sentence dated 20.6.2018 passed by the Judicial Magistrate First Class, Ashoknagar in Criminal Case No.1812/2006 whereby the petitioners have been convicted and sentenced in the following manner : Appellant’s name Offence under IPC Sentence Fine Premnarayan 411 of IPC 1 year’s RI Rs.500/- Ramveer 457, 380/34 of IPC 3-3 years’ RI Rs.500-500/- Indersen 411 of IPC 1 year’s RI Rs.500/ - Ghanshyam 457, 380/34 of IPC 3-3 years’ RI Rs.500-500/- Shishupal 457, 380/34 of IPC 3-3 years’ RI Rs.500-500/- Ramkrishna 411 of IPC 1 year’s RI Rs.500/- Rambabu 457, 380/34 of IPC 3-3 years” RI Rs.500-500/- 2. Facts of the case in short are that the petitioners have committed theft in a house during night thereby committed offence of lurking house trespass and theft. During investigation, petitioners were arrested and according to prosecution, at the instance of accused persons, stolen articles were seized and for that memorandum were also prepared by the police. After due investigation, charge-sheet was filed before the Magistrate who tried the petitioners for the aforesaid offences. 3. Petitioners abjured their guilt. They did not take any special plea in defence but stated that they have been falsely implicated in the matter. 4. Learned Magistrate after considering the evidence produced by the prosecution, convicted the petitioners for the charges mentioned above. Petitioners No.1,3 and 6 have been convicted only under section 411 of IPC for dishonestly receiving stolen property and rest of the accused persons have been convicted for the charges under sections 457 and 380/34 of IPC. 5. Before the Sessions Judge, Ashoknagar, three separate appeals have been preferred by the petitioners, challenging the impugned judgment of conviction and sentence passed by the Judicial Magistrate First Class, Ashoknagar, but these appeals failed and all the three appeals have been dismissed by a common impugned judgment of conviction and sentence by the Sessions Judge, Ashoknagar. Hence, this revision petition. 6. According to learned counsel for the petitioners, there are material contradictions persist in the evidence led by the prosecution. Hence, this revision petition. 6. According to learned counsel for the petitioners, there are material contradictions persist in the evidence led by the prosecution. Even the version of husband and wife Shashikant (PW1) and Santosh (PW2) varies to each other as both have given different statements in relation to place of identification of stolen articles as well as valuation of stolen articles. Apart that, no test identification parade of the accused persons has been convicted by the prosecution while FIR indicates that it was lodged against unknown persons. Thus, both the Courts below have committed error in convicting the petitioners by relying over such shaky evidence. 7. On the other hand, learned Public Prosecutor for the respondent/State opposed the prayer made by the petitioners and submitted that the trial Court has rightly convicted the petitioners for the offences referred above and rightly confirmed by the Sessions Court. Thus, prayed for dismissal of petition. 8. Heard learned counsel for the parties and perused the record of the Courts below. 9. Here, petitioners are facing the conviction and sentence for the offence under sections 411, 457 and 380/34 of IPC as referred above. As per the case of prosecution, petitioners; Ramvir, Ghanshyam, Shishupal and Rambabu have committed theft and Premnarayan, Indrasen and Ramkrishna have committed the offence of dishonestly receiving stolen property. Rinkesh (PW6) was the eye-witness in the case who witnessed the theft and on whose narration FIR got registered. He did not recognize the accused in his Court statement and he did not support the story of prosecution because in his Court statement in examination-in-chief itself he has referred about two unknown persons to commit theft and he saw them from behind. He also stated that he was carrying a child in his hand and they pushed him while escaping. When he himself in his examination-in-chief did not recognize the accused persons, despite the accused running away from the closest quarter, the case of prosecution comes under doubt since beginning. In the case in hand, no Test Identification Parade (TIP) was conducted. Therefore, the question whether the accused were those persons who committed theft cannot be established whereas the best procedure which could have been followed for identification of accused persons would have been the test identification parade. In the case in hand, no Test Identification Parade (TIP) was conducted. Therefore, the question whether the accused were those persons who committed theft cannot be established whereas the best procedure which could have been followed for identification of accused persons would have been the test identification parade. Here, the FIR (Ex-P/2) refers unknown persons and no test identification parade ever conducted for all accused persons and eye witness did not recognize the accused persons standing in the dock. Thus, this is material contradiction which had not been explained by the prosecution. 10. So far as seizure witnesses are concerned, two witnesses Suchit (PW9) and Ramkumar (PW20) were examined in which seizure witness Suchit (PW9) supported the story of prosecution who happened to be a family member of the complainant but independent witness Ramkumar (PW20) did not support the story of prosecution and turned hostile and was subjected to leading questions. In the cross-examination by the prosecution, he stood to his examination-in-chief and did not support the story of prosecution. This is another anomaly in the case in hand. 11. As far as identification and valuation of stolen goods are concerned three different valuations have been surfaced wherein Shashikant (PW1) valued the stolen goods as Rs.2 lacs in para 2 but she did not identify ornaments whereas Santosh (PW2) valued the stolen goods as Rs.10 lacs but could not identify the articles and Deepti (PW3) referred the valuation of goods to be Rs.2.5 lacs. The place of identification also varies from the testimony of different witnesses. Shashikant (PW1) says that she made identification of goods at Police Station whereas Santosh (PW2) deposed that he identified the stolen property at Municipal Council in presence of Vice-President of Municipal Council, Ashoknagar. In his cross-examination in para 4 he makes statement that when he made signature over Ex-P/1 which is list of stolen goods, at that time nobody was present except police personnel whereas Ex-P/1 is the list of stolen items and said document itself indicates that it was prepared in presence of Neeraj Manoriya Vice-President, Municipal Council, Ashoknagar and verified by the said person. In the same para, Santosh (PW2) admitted that he never went to the municipality office in relation to stolen goods whereas in his examination in chief in para 3 he made statement that he identified the stolen goods at the office of Municipal Council, Ashoknagar. In the same para, Santosh (PW2) admitted that he never went to the municipality office in relation to stolen goods whereas in his examination in chief in para 3 he made statement that he identified the stolen goods at the office of Municipal Council, Ashoknagar. This inconsistencies and variations in the Court statement of husband Santosh (PW2) and wife Shashikant (PW1) are glaring because husband and wife should have shared equal page regarding valuation of the stolen articles/ornaments as well as place of identification. 12. Ex-P/2 also appears to be list of stolen articles but it bears no date therefore, on which date it has been prepared is not clarified and witness Santosh (PW2) denied existence of the said document in para 4 when he says that he does not know who has prepared the list and under whose instruction, this list has been prepared. He further doubts his handwriting as well as information regarding signature over Ex-P/2. He also informed the Court in para 4 that stolen jewelries as referred in Ex-P/1 and P/2 have shown to him at Police Station itself, therefore, from the testimony of the said witness, identification of stolen jewelries stand vitiated because those items were already identified by the witnesses at the Police Station itself. 13. When valuation of the jewelries and its identification and later on its recognition by the witnesses bears sufficient contradictions and whole process has been vitiated, in absence of prescribed procedure then, it appears that the prosecution did not prove its case beyond reasonable doubt. 14. Interestingly, Suchit (PW9) and Ramkumar (PW20) were taken as witnesses for all seizures/memos etc., seizure of articles, arrest of accused and for other purpose. Out of them, one turned hostile and did not support the story of prosecution whereas other witness Suchit (PW9) was family member of the complainant. In absence of any strong evidence against the present petitioners regarding their involvement, it could not have been concluded that they have committed offences referred above. Eye-witness Rinkesh (PW6) did not recognize the accused and other evidence does not link the petitioners in commission of alleged offence. 15. The trial Court as well as appellate Court erred in passing the impugned judgment of convicting the petitioners as referred above. Eye-witness Rinkesh (PW6) did not recognize the accused and other evidence does not link the petitioners in commission of alleged offence. 15. The trial Court as well as appellate Court erred in passing the impugned judgment of convicting the petitioners as referred above. From the testimony of witnesses, documentary evidence and appreciation of them, it appears that the trial Court as well as appellate Court erred in convicting the petitioners for the offence referred above. Case could not be proved beyond reasonable doubt by the prosecutrix on the basis of evidence produced by the prosecution. 16. In the cumulative analysis, facts and circumstances of the case and the contradictions persist in the evidence of prosecution witnesses, this Court is of the considered view that the trial Court erred in convicting the petitioners for the offences referred above. Both the Courts below erred in misreading the evidence and caused perversity which deserves to be corrected. Therefore, the revision petition preferred by the petitioners is hereby allowed. Impugned judgment of conviction and sentence passed by the trial Court and affirmed by the appellate Court is hereby set aside. Petitioners No. 1, 3 and 6 are on bail, their bail bonds stand discharged. Petitioners No. 2, 4, 5 and 7 are in jail. Therefore, release warrant be issued and they be released forthwith. 17. Revision petition stands allowed and disposed of.