Ramswroop vs The State Of Madhya Pradesh
2021 Latest Caselaw 3097 MP

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     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
       (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
                     Criminal Appeal No.2769/2020
       Appellants:       Ramswaroop and Murli @ Murli Manoar
                         // Vs//
       Respondent:       State of Madhya Pradesh
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       Shri Nilesh Dave, learned counsel for the appellants.
       Ms. Geetanjali Chaurasia, learned Panel Lawyer for the
respondent/State.
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                           JUDGMENT

(08 .07.2021) Today, this appeal listed for consideration of I.A.No.4955/2021 an application seeking suspension of jail sentence of appellants but with the consent of parties, appeal is heard finally.

2. This criminal appeal is filed by the appellants namely Ramswaroop and Murli @ Murlhi Manohar, under Section 374 (2) Cr.P.C., against the judgment and order dated 18.02.2020 passed by learned 2nd Additional Sessions Judge, Beora, District Rajgarh in Sessions Trial No.395/2019 (State Vs. Ramswaroop and another) whereby they have been convicted for the offence punishable under Section 392 of I.P.C. and sentenced to undergo R.I. for 5-5 years with fine of Rs.1,000/- 1,000/-, in default of payment of fine, additional six-six months of rigorous imprisonment.

3. As per prosecution story, complainant Kanchan Singh lodged a report at Police Station Karanvas to the effect that he runs Mahakal Hotel situated at Village Badakhledi Main Road. On the date of incident i.e. 13.09.2019 near about 09:00 in the night, he was in his hotel, two youths came in splendor motorcycle and demanded cigarette, he gave cigarette and one of them caught hold his hand and tried to snatch his mobile then he pushed him,then another boy has

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caught hold him and taken out white polythene containing Rs. 500- 500, Adhar Card, documents and Mobile phone valued Rs. 1,000/- two sims. He shouted, then both ran away. One, who caught hold him, was wearing black checked shirt and black pant, aged about 25 to 30 years and another who snatched the mobile was wearing blue shirt and black pant having aged about 25 years. He would identify if they are brought before him. Police registered FIR (Ex.P/1) at crime No.164/2019 and started the investigation. Police arrested the appellants on the same night and recorded their statement under Section 27 of Indian Evidence Act vide Ex. P/8 and P/9. From the possession of of Ramswaroop a motorcycle (Hero Honda) was recovered and Vide Ex.P/15 mobile was seized. From the possession of [email protected] Murli Manohar, two currency notes of Rs. 500/- denomination , Adhar Card, receipt of SBI were recovered. Police got conducted Test Identification Parade in which they were identified by the complainant. After completing the investigation, charge-sheet was filed against the appellants for the offence punishable under Section 392 of I.P.C.

4. The prosecution has examined as many as 9 witnesses viz Kanchan Singh (PW-1), Pradumn Lodha (PW-2), Sandeep Gurjar (PW-3), Rakesh Choudhary (PW-4), Sunil (PW-5), Riya Jain (PW-6) and Pinkal (PW-7), Dharmendra (PW-8) and Mukesh Gond (PW-9) to prove charge against the appellants . The appellants abjured the guilt and pleaded for trial, however, in defence they have not examine any witnesses in their defence.

5. After appreciating of the evidence came on record, the learned trial court i.e. Additional Sessions Judge has convicted and sentenced the appellant as mentioned in above of this Judgment. Hence, this appeal before this Court.

6. I have heard learned counsel for the parties and perused the

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record of trial court.

7. Prosecution has examined complainant Kanchan Singh as PW-

1. He narrated the entire version of the FIR in his examination of chief, he identified both the appellants in the court. He was cross examined by the defence counsel and in para 8 he has admitted that it is correct that he could not notice in the dark as to who had looted currency note and mobile in the hotel. He has also admitted that the police had informed him about these appellants, have committed loot with him. Before TIP, the police had shown them in the police station , hence he could identified them . In view of the above eccentricity, he was declared hostile witness. The examination in chief of PW-1 started on 03.12.2019 but could not completed thereafter, he was further cross-examined on 18.12.2019 he has completely changed his version. On 03.12.2019 he has specifically named and identified these appellants, who committed loot with him but on 18.12.2019 in para 7 and 8 he has denied the involvement of these appellants in this offence . In cross-examination by public prosecutor, he said that the statement made on 03.12.2018 is not correct because he could not understand and gave all answer by saying " Yes". He has denied any settlement with the appellants.

8. Sandeep Gurjar (PW-3) has stated that on the date of incident, his father informed him that two persons came and there was altercation with them and thereafter they left the hotel. No such information about the loot had told him by his father P.W.-1 hence, he has also been declared hostel. Except, these two witnesses, the police did not examine any witnesses, who were present in the hotel at the time of incident. For the recovery of mobile phone, prosecution examined Constable Pinkal (PW-7) and for recovery currency note and Adhar Card, prosecution has examined Constable Dharmendra (PW-8). No independent seizure witnesses were examined by the

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prosecution. The mobile phone was recovered from the water tank as per disclosure of Ramswaroop and Constable Rakesh Choudhary (PW-4), who prepared the seizure memorandum statement but no independent witness was examined for recovery of the aforesaid mobile from open place as well.

9. The prosecution has examined Mukesh Gond (PW-9), who conducted the investigation after recording the FIR (Ex.P/1), and statement of PW-1 and PW-3. As per FIR, the incident took place between 09:00 to 09:15 on the night of 13.09.2019 and appellants were arrested within three hours at 24:00, thereafter, he recorded their statement. In cross-examination, he has admitted that the complainant came to the police station and lodged the FIR on 10:20 on the night of 13.09.2019, he immediately went to search the accused alongwith son of the complainant Sandeep (PW-3) and made entry in the daily diary but same was not produced before the court. He traveled 22-25 kilometers towards Beora and reached there at about 23:45 and arrested the accused. He has also admitted that after returning in the police station he made entry in the daily diary (Rojnamcha) but same was not produced before the court. From the aforesaid conduct of I.O., the entire investigation becomes doubtful. P.W.-1 lodged FIR at about 10:00 on the night of 13.09.2019 and Investigating officer arrested the both accused on 24:00 on the same night from the place situated 22-25 away from place of incident. There is no record to show the leaving time from Police Station and coming back to the police station in the daily diary. According to him, the son Sandeep of the complainant was with him , who has not stated anything in his statement. There is no independent witnesses in this case, who signed the arrest memo as well as recovery memo. The appellants have been convicted only on the basis of statement of Kanchan Singh (PW-1), which is not inspiring trust because within

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seven days, he has changed his version completely. Even prosecution is not getting support from PW-3. None of the staff of the hotel or the customers have been examined in this case to corroborate the statement of PW-1 in respect of incident of loot. There is no witnesses of recovery of article either from the appellants or from the open place. The burden of proof was upon the prosecution to prove recovery or the article from the appellants but learned court has wrongly shifted the burden on the appellants to prove that how looted article came their possession. Therefore, the conviction of the appellants is bad in law based on no evidence.

10. In view of the above, the appeal filed by the appellants is hereby allowed. The impugned judgment dated 18.02.2020 passed by learned 2nd Additional Sessions Judge, Beora, District Rajgarh in Sessions Trial No.395/2019 (State Vs. Ramswaroop and another) is hereby set aside. The appellants be released from the jail forthwith if they are not required in any other offence, the fine amount if deposited be also return to them.

A copy of the judgment be sent to the trial Court along with a record for information and compliance.

Certified copy as per Rules.

( VIVEK RUSIA ) JUDGE praveen/-

Digitally signed by PRAVEEN NAYAK Date: 2021.07.09 10:50:23 +05'30'