Jagdish vs The State Of Madhya Pradesh
2021 Latest Caselaw 1619 MP

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                                                            CRA No.1072/2021




HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
      (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                       CRA No. 1072 of 2021
     (Jagdish S/o. Mansingh Gurjar & another. V/s. State of M.P.)

Date : 28.04.2021 :
              Heard through video conferencing.
              Ms. Seema Maheshwari, learned counsel for the
appellants.
              Shri Kushagra Jain, learned Panel Advocate for
respondent/State.
              Today, this appeal is listed for hearing on application for
suspension of sentence. Since the record has been received, therefore,
learned counsel for the parties have agreed to argue this appeal finally.
                               JUDGMENT

The appellants have filed the present ppeal being aggrieved by judgment dated 11.2.2021 passed by first Additional Sessions Judge, Agar, District Shajapur in Sessions Trial No.266/2016 whereby they have been convicted u/s. 394 of the IPC and sentenced to 3-3 years RI with fine of Rs.2000-2000/- (two months RI in default of payment of fine).

2. Facts of the case, in short, are as under :

P.W.1 - Badrilal lodged an FIR at Police Station Kanad on 3.10.2016 near about at 22.14 hours disclosing that he is a ex- Surpanch and doing the agricultural activity. Today, from his motorcycle Hero Delux bearing Registration No. MP-70-M-3436 he was going from Agar to Village Kalmoi. Near about at 9 pm., two persons came on a motorcycle without number-plate and overtook him and stopped at some distance. From the headlight of the motorcycle he identified Jagdish S/o. Kalusingh Gurjar driving the motorcycle and Jagdish S/o. Mansingh Gurjar sitting on the rear seat. He stopped the vehicle near them. Jagdish gave a blow by a stick on his left shoulder and he get down from the motorcycle. Thereafter, another Jagdish

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caught his Collar, then Jagdish who was driving the motorcycle took out his wallet from his pocket and second Jagdish took his motorcycle and they fled away. He kept cash of Rs.1,200/-, Aadhar Card, Registration certificate and photocopy of license in his wallet. The value of his motorcycle was Rs.40,000/-. Thereafter, he reached to the nearby stone-crusher machine and narrated the story. On his mobile he gave an information of the incident to Harinarayan and Jagdish and lateron to Vinod Sharma. The police registered the FIR (Exh. P/1) against the appellants u/s. 394 of the IPC. Vide Exh. P/2 and P/3 the spot map was prepared as per information given by Badrilal (P.W.1). Vide Exh. P/4, 'Kurta' (shirt) of Badrilal was seized. The police recorded the statement u/s. 161 of Cr.P.C. of Badrilal, Ishwar S/o. Gangaram, Ghanshyam. Badrilal (P.W.1) was medically examined by Medical Officer who gave a report vide Exh. P/7 that there was pain on left upper back might be due to hard and blunt object.

The appellants were arrested on 6.10.2016 vide Exh. P/8 and P/9. Their statements u/s. 27 of the Evidence Act were recorded vide Exh. P/10 and P/11. On the disclosure of Jagdish S/o. Kalusingh Gurjar a black colour wallet containing the Registration Certificate, driving license, identity card, Rs.1,200/- were recovered vide Exh. P/12. Two witnesses signed Exh. P/12, but their names are not mentioned in it. The statement of Jagdish S/o. Mansingh was recorded u/s. 27 of the Evidence Act vide Exh. P/15 and on his disclosure, motorcycle of the complainant bearing Registration No. MP-70-M- 3436 was also seized vide Exh. P/17. This seizure memo was signed by two witnesses viz. Jamnalal Rathore and Gopal Singh. Thereafter, one stick was also recovered from Jagdish S/o. Kalusingh vide Exh. P/18 and in this seizure memo also Jamnalal Rathore and Gopal Singh have signed as witnesses. After completing the investigation, the police filed the charge-sheet.

Learned Additional Sessions Judge framed the charge of 394 of the IPC against the appellants. The appellants denied the charge and pleaded for trial.

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In support of the charge, the prosecution examined Badrilal as P.W.1. In his deposition, Badrilal has improved his version by stating that Jagdish S/o. Mansingh gave a blow by stick on his left shoulder and Jagdish S/o. Kalusingh took out his wallet and looted him. He has not stated anything about the loot of his motorcycle in his court's statement. The prosecution examined Ishwar Bali as P.W.2 and Ghanshyam as P.W.3 who have only stated that the complainant came to the stone-crusher machine near "Aathwan Meel" and told them about loot at nearby place and he was wearing the dusty shirt. They reached to the spot but no one or the vehicle were found there, accordingly, both were declared hostile. The prosecution examined Jagdish Sharma who is younger brother of complainant (P.W.1) and who has made the statement on the basis of hearsay version of his brother PW-1. Dr. N.K. Parmar has been examined as P.W.5 who has proved the medical report and according to him the injured had complained the pain on upper part of the body. In his cross- examination he has stated that the pain could be caused on falling on a hard surface and no other injury was found. The prosecution examined Rakesh Sharma, Constable as P.W.6 in order to prove the statement recorded u/s. 27 of the Evidence Act. Govardhan Sharma of Patwari Halka was examined as P.W.7 who prepared the spot map. Ramesh Sourashtri, the then Inspector was examined as P.W.8 who conducted the investigation. He has failed to produce the looted articles before the Court and admitted that the looted articles were not deposited in the 'Nazarat' and deposit receipt is also not available on the record. The prosecution also examined Jamnalal as P.W.9 who signed the memorandum u/s. 27 (Exh. P?!5, P/16, P/17 & P/18) as a witness, who has also been declared as hostile.

The appellants in their defence examined Bhagwansingh as D.W.1 and got exhibited the judgment dated 24.5.2012 passed in Sessions Trial No.122/2011 by Addl. Sessions Judge, Agar whereby Bhagwan Singh has been discharged from the charge u/s. 342 of IPC levelled by Badrilal. As per the statement of Bhagwan singh, Badrilal

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had falsely implicated him in the case of abduction and he remained in the jail and in the said case, the appellants got him released on bail.

After appreciating the evidence came on record, vide judgment dated 11.2.2021, learned Addl. Sessions Judge has convicted the appellants for the offence u/s. 394 of the IPC and sentenced them, as aforesaid. Hence, the present appeal before this Court.

Learned Sessions Judge has suspended the jail sentence for a period of one month but due to Corona-19 pandemic, the appellants have not surrendered before the trial Court till date.

3. Learned counsel for the appellants submits that the appellants have falsely been implicated by the complainant - Badrilal because because of his enmity with Bhagwan singh. The appellants did not loot his wallet as well as the motorcycle. No seizure witness has been examined in this case and the looted articles were not produced before the Court, hence the charge of loot could not be established by the prosecution. Therefore, the conviction of the appellants u/s. 394 of the IPC is bad in law. At the most, the appellants said to have committed offence of assault for which they are liable to be convicted for the offence u/s. 323 of the IPC and for which, they had already suffered the sentence of one year 3 months.

4. On the other hand, learned Panel Advocate opposes the prayer by submitting that the learned Addl. Sessions Judge has rightly appreciated the material came on record to convict the appellants for the offence u/s. 394 of the IPC. There is no reason to disbelieve the prosecution witnesses at this stage. The Investigating Officer and Police Constable (P.W.6) have duly proved the seizure of the looted articles from the possession of the present appellants. Hence, no interference is called for and the appeal is liable to be dismissed.

I have heard the learned counsel for the parties at length and perused the record of court below.

5. P.W.1 - Badrilal lodged the report that the present appellants came on the motorcycle, overtook them and one of them assaulted him by a stick and another one snatched the wallet from his

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pocket. He lodged the report by name against the present appellants with their complete description. In the FIR he has made specific allegation about loot of wallet as well as the motorcycle, but in the court statement he has not stated anything about the loot of the motorcycle (as stated in the FIR). In the FIR he has not properly given the description as which Jagdish assaulted him and which Jagdish looted him. But in his court-statement he has given the full description by their names and also their father's name, therefore, the statement of P.W.1 before the Court is an improved version.

6. P.W.2 and P.W.3 have been examined to whom the complainant had narrated the entire story of loot. According to them, the complainant came to the stone-crusher and informed that his motorcycle and wallet were snatched, but they have been declared as hostile by the learned Addl. Sessions Judge. Jagdish (P.W.4) has made a statement on the disclosure made by the complainant. Jagdish cannot be said to be an independent witness because he is brother of the complainant - Badrilal (P.W.1) who was not present at the time of lodging of the report. As per statement of P.W.5 - Dr. N.K. Parmar, the appellant made a complaint about pain, but he did not find any bruises or abrasion on the body of the complainant. P.W.6 - Rakesh Sharma and P.W.7- Govardhan Sharma are not the independent witnesses but are Constables of the Police Department posted in the Police Station, who have only supported the prosecution story in respect of recording of statement u/s. 27 of the Evidence Act and the seizure of the articles. P.W.8 - Ramesh Sourashtri, Inspector (IO) has admitted that the P.W.1

- Badrilal lodged the report in respect of loot of motorcycle and cash which he registered in the FIR (Exh. P/1). He recorded the statements of Ishwar, Ghanshyam, Vinod Sharma, Harinarayan, Jagdish, etc. and arrested the present appellants. Thereafter, on disclosure made by the appellants, the looted articles were recovered from the forest area. However, he has failed to produce the looted articles before the Court. He has admitted that no such deposit receipt of the looted articles in the 'Nazarat' is available on the record. Therefore, in order to establish

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the charge of loot, the looted articles are required to be produced before the Court. The prosecution has utterly failed to prove that the looted articles were ever deposited in the 'Nazarat' and the motorcycle was released on 'Supurdiginama' to the complainant - Badrilal.

7. Two witnesses viz. Jamnalal and Gopalsingh have signed as witnesses of seizure memo of motorcycle vide Exh. P/17. Their names have not been included in the list of witnesses, they were not examined before the Court to establish that the motorcycle was recovered from the spot disclosed by Jagdish S/o. Mansingh. Likewise, two witnesses who have signed seizure memo (Exh. P/12) of wallet and the cash their names are not mentioned in the Seizure Memo. Even these two witnesses have not been included in the list of witnesses and not been examined before the Court. Counsel for the appellants gave a specific suggestion to P.W.8 that he has falsely implicated the present appellants in collusion with Badrilal, although he denied this suggestion. Therefore, it is a fit case in which the prosecution has failed to establish the loot by the appellants with Badrilal. No independent witnesses have supported the incident. Only on the sole testimony of Badrilal the present appellants have been convicted u/s. 394 of the IPC whereas the looted articles have not been produced before the Court. The seizure witnesses of the looted articles have neither been included in the list of witnesses nor examined before the Court. Therefore, prima facie it appears that the Investigating Officer in collusion with the complainant - Badrilal has falsely implicated the present applicants in the case of a loot. Hence, the conviction and sentence awarded to the appellants u/s. 394 of the IPC is not liable to be sustained and accordingly it is hereby set aside.

8. P.W.1 - Badrilal also made an allegation that on 3.10.2016 in the night he was going from Agar to Kalmoi. The appellants came there on their motorcycle and overtook him. Jagdish S/o. Mansingh gave a blow of stick on his left shoulder and there was a scuffle between him and Jagdish S/o. Mansingh. Thereafter, one of them snatched the wallet. After the loot, he immediately reached stone-

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crusher machine where P.W.2 and P.W.3 noted that someone has looted Badrilal. Badrilal came by running to the stone-crusher machine with dirty clothes. The police has recovered his shirt in which patches of oil and dust were there and the pocket was torn. Therefore, the prosecution has successfully established the assault by the appellants to Badrilal for which, at the most they are liable to be convicted u/s.

323 of the IPC i.e. punishment for voluntary causing hurt in which the sentence may extend to one year or fine, which may extend to Rs.1,000/- or both, and Section 341 - punishment for wrongful restraint, in which the punishment is one month or fine or both. Both the offences are bailable offences and triable by Magistrate.

9. In view of the foregoing discussion, this appeal deserves to be and is hereby partly allowed. The appellants are discharged from offence u/s. 394 of the IPC, but convicted u/s. 323/34 and sentenced to fine of Rs.500-500/-. If the appellants are in custody, they be released forthwith, if not required in any other case. The difference of the fine amount (Rs.1500-1500/-) be returned to the appellants.

With the aforesaid, this appeal stands disposed of.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2021.05.04 10:52:20 +05'30'