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2021 DIGILAW 461 (MP)

Rinku @ Rajender @ Sunil Kuchbandia v. State of M. P.

2021-05-04

VIVEK RUSIA

body2021
JUDGMENT 1. The appellant has filed the present appeal being aggrieved by the judgment dated 31.8.2019 passed by learned District and Sessions Judge, Neemuch in S.T. No.135/2013 whereby he has been convicted and sentenced as under : Section and Act. Imprisonment Fine Amount Imprisonment in lieu of default of payment of fine. 458 of the IPC. 7 years RI 1,000/- six months        additional SI. 397 of the IPC. 10 years RI 1,000/- six months additional SI 25(1-B)(b) of the Arms Act. 1 year RI 1,000/- six months additional SI. 2. As per the prosecution story, on the intervening night of 16th and 17th July 2013, around 12’o clock when the complainant Manoj Sharma (PW.9) was working on the laptop in his house some one knocked on the door of the house and on opening the door three persons whose faces were covered with the cloth entered and one of them caught hold of his neck, other person fixed white tape on his mouth and took out the mobile from his shirt pocket and thrown. They looted the gold chain from the neck of Manoj, two golden rings from his right hand, two mobile phones from his pant pocket, one Samsung and other Intex and the purse from the back pocket of his pant containing two ATM, two Health card and other papers and also taken the Titan wristwatch which he was wearing. One of them put a small gun on his head and the other one had put gupti like knife on Manoj and threatened him to remain silent. They took out the keys from the drawer and had opened the locker and looted 5 packets of Rs.100/- currency notes of value Rs.50,000/- and one packet of Rs.10/- currency note of value Rs.1,000/-. While going, they also took away one 14” Laptop of Dell Company, mouse and key board belonging to Manoj. Manoj had disclosed that two persons were healthy and had tied red clothes on their face and were wearing jeans and shirt and one of the person was of middle built who had tied white cloth on his face and was wearing jeans and tea-shirt. They had gone away after locking the door from outside. Manoj had disclosed that two persons were healthy and had tied red clothes on their face and were wearing jeans and shirt and one of the person was of middle built who had tied white cloth on his face and was wearing jeans and tea-shirt. They had gone away after locking the door from outside. Manoj after getting himself free had called his friend Vikas PW.16 on phone who came along with Naresh and Balvansingh and had opened the door and thereafter the intimation of the incident was given to P.S, Neemuch Cantt and FIR Ex.P/14 was registered. The police had seized the bandage tape, the boxes of the mobile phone etc from the spot, spot map was prepared. The MLC of Manoj was done by Dr. S.S.Baghel PW.6 who had given the report Ex.P/11. During the course of the investigation, on receipt of the information about the involvement of the appellant Rohit who was already in custody in connection with another offence, a former arrest was done and on interrogation, he had disclosed about the commission of the offence by him along with co-accused Deepak @ Golu and Rakesh. On the memorandum of the accused persons, the stolen items were recovered. In the TI parade appellants were identified and after investigation the police had filed the challan and charge for commission of offence u/Ss.458, 394 and 397 of the IPC was framed. 3. After filing the charge-sheet, the present appellant, Rohit, and Deepak @ Golu were tried for commission of offence u/s. 459, 397 of the IPC. During pendency of the trial, the present appellant remained absconding and the trial proceeded against the remaining accused. Vide judgment dated 2.9.2014, they were convicted for the offence u/s. 458 of the IPC and were awarded the sentence of 10 years and fine of Rs.1,000/- each with default stipulation for a period of six months. 4. Co-accused Rohit filed Cr. Appeal No.1339/2014 and Deepak @ Golu filed Cr. Appeal No.1680/2014. Both the appeals were finally heard and decided by Co-ordinate Bench of this Court vide judgment dated 4.4.2019. Vide judgment dated 4.4.2019, this Court has upheld the conviction and sentence u/ss. 458 and 394 read with section 397 of the IPC. So far as sentence u/ss. Co-accused Rohit filed Cr. Appeal No.1339/2014 and Deepak @ Golu filed Cr. Appeal No.1680/2014. Both the appeals were finally heard and decided by Co-ordinate Bench of this Court vide judgment dated 4.4.2019. Vide judgment dated 4.4.2019, this Court has upheld the conviction and sentence u/ss. 458 and 394 read with section 397 of the IPC. So far as sentence u/ss. 394 and 397 is concerned, the Co-ordinate Bench of this Court found it to be on the higher side and reduced the sentence from 10 years to 7 years. 5. Learned counsel for the appellant submits that now vide impugned judgment, the appellant has also been convicted u/s. 458 and sentenced to 7 years' RI with a fine of Rs.1,000/-; u/s. 397 sentenced to 10 years RI with fine of Rs.1,000/-; and u/s. 25(1-B)(b) of the Arms Act sentenced to one year RI with fine of Rs.1,000/-. He remained in jail from 3.4.2014 till 13.4.2014 and thereafter, 13.4.2014 till today. Therefore, he has also completed 7 years jail sentence. The charges against all the accused are identical. The present appellant is also a first offender. He is facing the agony of trial since 2014. At the time of the commission of the offence, he was 37 years of age, therefore, his jail sentence be also reduced from 10 years to 7 years u/s. 397 of the IPC. 6. Learned Panel Advocate appearing for the respondent/State opposes the prayer, but submits that the charges against all the accused are identical and in Cr. Appeals No. 1339/2014 and 1680/2014 the jail sentence of co-accused has been reduced from 10 years to 7 years. 7. I have perused the judgment passed by the learned Sessions Court and the judgment passed by the Co-ordinate Bench of this Court in Cr. Appeals No. 1339/2014 and 1680/2014. The appellant is having parity with the other two accused. Therefore, the convictions of the appellant u/s. 458, 397 of the IPC and u/s. 25(1-B)(b) of the Arms Act are hereby maintained, but the jail sentence awarded u/s. 397 of the IPC is reduced from 10 years to 7 years. If the appellant has completed seven years jail sentence, then he shall be released from the custody, if not required in any other cause. 8. With the aforesaid, this appeal stands disposed of.