Rajesh vs State Of M.P.
2021 Latest Caselaw 3408 MP

                                     1

             HIGH COURT OF MADHYA PRADESH
                           BENCH GWALIOR
SINGLE BENCH:
                 HON'BLE SHRI JUSTICE G.S. AHLUWALIA
                      Criminal Appeal No.678/2011
.........Appellant:                          Rajesh.
                                             Versus
.......Respondent :                          State of M.P.


                      Criminal Appeal No.882/2011
.........Appellant:                          Laxman @ Bhura.
                                             Versus
.......Respondent :                          State of M.P.


                      Criminal Appeal No.701/2018
.........Appellant:                          Rahul @ Chhaviram.
                                             Versus
.......Respondents :                         State of M.P.
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For Cr.A. No. 678/2011
Shri Hemant Singh Rana, Counsel for the appellant.
Smt. Padam Shri Agarwal, Counsel for the respondent/State.
For Cr.A. No. 882/2011
Shri R.K. Shrivastava, Counsel for the appellant.
Smt. Padam Shri Agarwal, Counsel for the respondent/State.
For Cr.A. No. 701/2018
Shri Amit Kumar Goswami, Counsel for the appellant.
Smt. Padam Shri Agarwal, Counsel for the respondent/State.
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Date of hearing                      : 19/07/2021
Date of Judgment                     : 19/07/2021
Whether approved for reporting : Yes
                                 2

                         JUDGMENT

(19/07/2021) (Through Video Conferencing)

By this common judgment, Criminal Appeal filed by Laxman

@ Bhura (Cr.A. No. 882/2011) and Rahul @ Chhaviram

(Cr.A.701/2018) shall also be finally disposed of.

With the consent of parties, the appeal is heard finally.

It is submitted by Shri M.S. Rana that in compliance of the

order of this Court, the appellant Rajesh is present in his office.

Similarly, Shri R.K. Shrivastav also submitted that appellant

Laxman @ Bhura is present in his office. Appellant Rahul @

Chhaviram is in jail. Since the physical hearing is not going on,

therefore, the presence of the appellants Rajesh and Laxman @

Bhura is marked without obtaining their signatures.

These Criminal Appeals have been filed under Section 374

of Cr.P.C against the judgment and sentence dated 02.08.2011

passed in Special Sessions Trial No. 6/2009 by which appellant

Rajesh and Laxman @ Bhura were convicted for offence under

Sections 392, 397 of IPC r/w Section 13 of MPDVPK Act 1981

and sentenced to undergo rigorous imprisonment of seven years

with fine of Rs. 500/- with default rigorous imprisonment of three

months. Since the appellant Rahul @ Chavi Ram jumped bail

during pendency of the trial, and was arrested at a later stage,

therefore, by separate judgment and sentence dated 01.12.2017 in

Special Sessions Trial No. 6/2009, he too has been convicted under

Sections 392, 397 of IPC r/w Section 13 of MPDVPK Act and has

been sentenced to undergo rigorous imprisonment of seven years

with fine of Rs. 5,000/- with default rigorous imprisonment of

three months.

According to the prosecution case, on 20.01.2009 at about

4:15 pm, the complainant Veerendra Singh (PW/5) was going on

on his Boxer Motorcycle bearing registration no. MP 07 KA 8675

which was of black colour. When he reached Mauch Ghati, then he

was waylaid by three unknown persons on the gun point and they

dragged him 100 meters towards the forest area and after tying his

hands and legs with his belt and laces of his shoes, his motorcycle,

mobile phone of LG Company, an amount of Rs. 12,200/- and

shoes were taken away and threat was also extended that in case if

he raises an alarm, then he would be killed. Thereafter, the accused

persons ran away towards Chinor. After 15 minutes of the incident,

the complainant somehow managed to get himself free and came

on the road and lodged the report in Police Station Panihar Distt.

Gwalior. The spot map was prepared. The appellants were arrested

in some other case and motor cycle of the complainant was seized

from the appellant Rahul @ Chhaviram, accordingly, they were

formally arrested. Their Statements under Section 27 of the

Evidence Act were recorded. The broken piece of number plate of

motor cycle, one pair of shoe and some cash amount was seized in

the present case. After completing the investigation, the police filed

the charge-sheet for offence under Sections 392, 397 of IPC r/w

Section 13 of MPDVPK Act, 1981.

The Trial Court by order dated 23.06.2009 framed charges

under Section 392, 397 r/w Section 13 of MPDVPK Act.

The appellants abjured their guilt and pleaded not guilty.

The prosecution examined Constable Sudeep Pandey

(PW/1), Rati Ram Kushwaha (PW/2), Ashok Singh Bhadhoriya

(PW/3) Surendra Singh (PW/4), Veerendra Singh Parihar (PW/5),

Anil Shakya (PW/6), Amar Singh Sikarwar (PW/7) and R.K

Pandey (PW/8), in support of its case.

After the closure of prosecution evidence, appellant Rahul @

Chavi Ram did not appear before the trial Court on 31.03.2011 and

filed an application under Section 317 of Cr.P.C seeking exemption

from personal appearance. The said application was allowed and

appellant Rahul @ Chavi Ram was directed to appear positively on

11.4.2011 for the accused statement under Section 313 of Cr.P.C.

However, on 11.4.2011, appellant Rahul @ Chavi Ram did not

appear and accordingly his bail bonds were canceled and the

notices were issued to the surety and the case was adjourned for

28.4.2011 for his appearance. On 28.04.2011, not only appellant

Rahul @ Chhaviram did not appear, but appellant Laxman also did

not appear and accordingly, his bail bonds were also canceled and

the case was fixed for 27.06.2011. However, in the meanwhile, on

21.06.2011, an application under Section 44(2) of Cr.P.C. was filed

on behalf of appellant Laxman and accordingly, the same was

allowed and appellant Laxman was taken into custody. Thereafter,

by order dated 24.06.2011, the appellant Laxman was granted bail.

On 27.06.2011, the arrest warrant issued against appellant

Rahul @ Chhaviram was received back un-served and accordingly,

the statement of the witness with regard to the abscondence of

appellant Rahul @ Chhaviram was recorded and the trial Court

separated the trial of appellant Rahul @ Chhaviram and perpetual

non-bailable arrest warrant was issued and accordingly, on

08.07.2011 the statements of accused Rajesh and Laxman were

recorded under Section 313 of Cr.P.C. Accordingly, by judgment

and sentence dated 02.08.2011, the appellant Rajesh and Laxman

@ Bhura were convicted and sentenced for the above mentioned

offences. Thereafter, on 29.06.2017, the appellant Rahul @

Chhaviram was arrested and as the original record was sent to the

High Court, therefore, after getting the original record back from

the High Court, the statement of the accused under Section 313 of

Cr.P.C. was recorded on 27.11.2017. As the appellant Rahul @

Chhaviram expressed that he does not wish to give any evidence in

his defence therefore, by judgment and sentence dated 01.12.2017,

he has been convicted and sentenced for the above mentioned

offences.

Challenging the judgment of conviction passed by the Court

below, it is submitted by Counsel for the appellant that the

prosecution has miserably failed in establishing the identity of the

appellants and no incriminating article was seized from their

possession to establish guilt of the appellants.

Per contra, it is submitted by Counsel for the State that in the

Test Identification Parade conducted by the Police, the appellants

were duly identified by the complainant Veerendra Singh Parihar

(PW/5). On 21.12.2010, the appellants were not present before the

Trial Court, and by filing an application under Section 317 of

Cr.P.C they expressed that they would not challenge the question of

their identity. Accordingly, the prosecution has succeeded in

establishing identity of the appellants. It is further submitted that

the motorcycle of the complainant was recovered from the

possession of Rahul @ Chhaviram, in a different case. In the

present case a pair of shoe of the complainant and an amount of

Rs. 100/- was seized from the possession of the appellant Rahul @

Chhaviram. The number plate of the motorcycle of the complainant

and an amount of Rs. 500/- was recovered from the possession of

Laxman @ Bhura. It is submitted that the number plate of the

motorcycle was deliberately broken with an intention to hide the

registration number of the motorcycle of the complainant and the

same was thrown in the field of Bannasi Jatav. An amount of Rs.

500/- was seized from the possession of appellant Laxman @

Bhura.

Heard the learned Counsel for the parties.

The moot question for consideration is as to whether the

evidence of Veerendra Singh Parihar (PW/5) was rightly recorded

in the absence of the appellants on 21.12.2010 or not.

Section 273 of Cr.P.C reads as under:-

"273. Evidence to be taken in presence of accused- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader:

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accuses while at the same time ensuring the right of cross-

examination of the accused.]"

Thus, it is clear that if the personal attendance of an accused

has been dispensed with, then the evidence in the presence of his

pleader can be taken on any condition which may be imposed by

the Court.

The Supreme Court in the case of U.P. Pollution Control

Board Vs. Mohan Meakins Ltd. And Others reported in (2000) 3

SCC 745 has held as under:-

"15. If any of the accused applies for dispensing with his personal presence in the court, after making the first appearance, the trial court can exempt him from continuing to appear in the court by imposing any condition which the court deems fit. Such conditions can include, inter alia, that a counsel on his behalf would be present when the case is called, that he would not dispute his identity as the particular accused in the case, and that he would be present in court when such presence is imperatively needed."

(Underline supplied)

The Supreme Court in the case of Atma Ram and Ors. v.

State of Rajasthan reported in (2019) 20 SCC 481 has elaborately

considered the effect of absence of an accused on the day when the

evidence is recorded. It is held that the right of an accused under

Section 273 of Cr.P.C to watch the prosecution witness is a

valuable right. However, it is also held that the exceptions to the

application under Section 273 Cr.P.C. must be those which are

expressly provided in the Cr.P.C like Sections 299 and 317 of

Cr.P.C. In the case of Atma Ram (Supra) the Supreme Court

found that when the evidence of the witness was being recorded, an

objection was raised by the Advocate appearing for the accused

that the evidence is being recorded without ensuring the presence

of the appellant in the Court. Thus, it was held that there was

neither any willingness on the part of appellants nor any order or

direction by the trial Court that the evidence be recorded in the

absence of the appellant. Thus, it was held that there was no

willingness and no dispensation with personal attendance of the

accused as contemplated in the later part of the Section 273 of the

Cr.P.C and yet the evidence was recorded without ensuring the

presence of the accused. However, it was also held that aforesaid

infringement is curable and would not vitiate the trial and

accordingly the direction to re-examine those witnesses who were

examined in the absence of the accused was given. However in the

present case the facts are different.

The order dated 21.12.2010 reads as under:-

ß'kklu }kjk ,0th0ih0 Jh cq/kkSfy;kA

vkjksihx.k jkts'k] jkgqy] y{e.k vuqifLFkrA mudh vksj ls Jh ,0,y0 feJk ,MoksdsV ,oa Jh ,0ds0 f}osnh vf/koDrkA mDr vkjksihx.k dk gktjh ekQh vkosnu is'k oknfopkj LohdkjA izdj.k esa vfHk;kstu lk{kh chjsUnz flag ifjgkj ¼v0lk0 5½mifLFkr vkjksihx.k ,MoksdsV us igpku ds iz'u ij vkjksihx.k dh vkSj ls dksbZ vkifRr u gksuk O;Dr fd;k A mDr lk{kh dks ijh{k.k] izfrijh{k.k mijkar mUeksfpr fd;k x;kA izdj.k esa vfHk;kstu lk{kh rglhynkj vkj0 ds0 ik.Ms;] ds0ih0 pkSgku] vfuy lkD; dks 5&5 gtkj : ds tek okj.V ls ryc fd;k tk;sA izdj.k vfHk;kstu lk{; gsrq fnukad 24-01-2011 dks is'k gksAÞ

From the above mentioned order, it is clear that Veerendra

Singh Parihar (PW/5) was present before the Court and none of the

appellants were present and accordingly, application under Section

317 of Cr.P.C was filed and it was expressly expressed by the

appellants that they would not dispute the question of

identification. This Court has tried to find out the application

which was filed on 21.12.2010 under Section 317 of Cr.P.C.

Unfortunately, some of the applications are undated, therefore it is

very difficult to decipher as to which application was filed on

21.12. 2010. However in one application, it has been mentioned as

under:-

^^iz0dz0 06/09 fo'ks"k l=okn iqfyl ifugkj& vfHk;ksxh jkts'k vkfn& vfHk;qDrx.k vkosnu i= vUrxZr /kkjk 317 na0 iza0 la0 Jhekuth] vfHk;qDr jkgqy dh vksj ls vkosnu i= izLrqr gSA ¼1½ ;gfd mijksDr izdj.k U;k;ky; ds le{k lk{; gsrq fu;r gSA vkjksih jkgqy U;k;ky; esa mifLFkfr ugha gS D;ksafd og vko';d dk;Z ls ckgj x;k gqvk gSaA rFkk vifjgk;Z dkj.k ls og vkt U;k;ky; esa mifLFkfr ugha gSA ¼2½ ;gfd vfHk;qDr dh vksj ls tfj;s vfHkHkk"kd vkt fnukad dh vuqifLFkfr ekU;

fd;k tkosA izdj.k esa mifLFkfr lk{kh dks ftjg ds le; vfHk;qDr dh vksj ls vfHkHkk"kd mifLFkfr gksdj ftjg iw.kZ djsaxsA vkt dh vuqifLFkfr lnHkkouk ij vk/kkfjr gksus ls {kek fd;k tkosA

vr,o izkFkZuk gS fd vfHk;qDr dh vuqifLFkfr ekQ djus dh d`ik djasA

izkFkhZ jkgqy & vfHk;qDr**

Neither the date has been mentioned on this application nor

the judge has put a date below his signatures, but the fact that the

appellants had given an undertaking that their Counsel would cross

-examine the witness in their absence, merely indicates that the

aforesaid application must have been filed on 21.12.2010. In the

order dated 21.12.2010, it has been specifically mentioned that the

Counsel for the appellants has expressed that the appellants have

no objection with regard to their identification. Under these

circumstances, it cannot be held that the examination of the

complainant Veerendra Singh Parihar (PW/5) on 21.12. 2010 in

absence of the appellants was violative of Section 273 of Cr.P.C. In

fact, the appellants prayed for dispensation of their appearance

with a stipulation that their Counsel would cross-examine the

witness and also did not dispute their identity. Accordingly, it is

held that the prosecution has succeeded in establishing the

identification of the appellants. Furthermore, the appellants were

also identified by the complainant in the TIP conducted by the

police Ex. P/14. It is true that Test Identification Parade conducted

by Police is not the substantive piece of evidence and the dock

identification is the substantive piece of evidence and since the

appellants have not challenged their identity at the time of

examination of Veerendra singh Parihar (PW-5), therefore, it is held

that the identification of the appellant in the dock is a reliable piece

of substantive evidence as it was preceded by the Test

Identification Parade, Ex. P.14, conducted by the Police during the

investigation.

So far as the recovery of incriminating articles from the

possession of the appellants is concerned, the confessional

statement, Ex. P.2 under Section 27 of the Evidence Act of

appellant Laxman @ Bhura was recorded on 10-2-2009, in which

he stated that the mobile is kept in his house, however, on search,

Ex. P.1, neither any mobile nor any cash amount could be seized

from his house. However, another confessional statement under

Section 27 of Evidence Act of the appellant Rajesh @ Bhura was

recorded on 11-2-2009, Ex. P.4 and 5 currency notes of

denomination of Rs. 100 each i.e., Rs. 500/- were seized vide

seizure memo dated 11-2-2009, Ex. P.7.

On the confessional statement of appellant Rahul @

Chhaviram, Ex. P.3, one pair of shoe was recovered vide seizure

memo Ex. P.4. It is not out of place to mention here, that the motor

cycle of the complainant was seized from Rahul @ Chhaviram by

Police Station Pichhore, Distt. Gwalior vide seizure memo Ex.

P.11, which has been duly proved by Ratiram Kushwaha, P.W.2.

Similarly on 10-2-2009, confessional Statement, Ex. P.12 of

appellant Rajesh @ Balveer was recorded and accordingly on 10-2-

2009, a broken piece of number plate of motor cycle of the

complainant was seized from the field of Bannasi Jatav, which was

having mustard crop vide seizure memo Ex. P.6.

It is true that so far as the cash amount is concerned, in

absence of any specific mark of identification, it is very difficult to

hold that the cash amount which was recovered from the

possession of the appellants is the same amount which was robbed

from the complainant, but the recovery of broken piece of the

number plate of the motorcycle at the instance of the appellant

Rajesh @ Balvir from the field of one Bannasi Jatav vide seizure

memo Ex.P/6 can be said to be a seizure of incriminating article

showing involvement of appellant Rajesh @ Balvir in the offence.

Further, one pair of shoe was recovered from the possession

of appellant Rahul @ Chhaviram,vide seizure memo Ex. P/5.

Appellant Rahul @ Chhaviram has not claimed ownership of the

pair of shoe in his statement under Section 313 of Cr.P.C. In the

statement under Section 313 of Cr.P.C, the appellant Rahul @

Chhaviram has denied seizure of one pair of shoe. However, the

pair of shoe seized from the possession of appellant Rahul @

Chhaviram was not got identified from the complainant Veerendra

Singh Parihar (P.W.5) in the Court.

However, it appears that Police Station Pichhore, District

Gwalior had seized one motorcycle from the possession of

appellant Rahul @ Chhaviram on 28/01/2009 alongwith a country

made pistol and two live cartridges. The said seizure memo has

been proved by Ratiram Kushwah (PW/2) as Ex.P/11. From the

seizure memo Ex.P/11, it is clear that it was not having number

plate. Thus, the prosecution has succeeded in establishing that the

motorcycle of the complainant was seized from the possession of

the appellant Rahul @ Chhaviram in a different criminal case

registered at Police Station Pichhore, District Gwalior on

28/01/2009 vide seizure memo Ex.P/11.

Thus, it is held that the prosecution has succeeded in

establishing that appellant Rahul @ Chhaviram was not only duly

identified by the complainant but motorcycle of the complainant

was seized from his possession of appellant Rahul @ Chhaviram.

So far as the appellant Rajesh @ Balvir is concerned, apart

from the identification of the said appellant, the broken number

plate of motor cycle of the complainant was seized. If seizure of

motor cycle of complainant vide seizure memo Ex.P/11, and the

seizure of broken number plate of motor cycle of complainant vide

seizure memo Ex. P.6 are considered conjointly, then it is clear that

after taking away the motorcycle of the complainant, the

registration number plate of the motorcycle was broken and was

thrown in the field, which was recovered after discovery made by

appellant Rajesh @ Balvir.

It is submitted by the counsel for the appellants that since the

broken piece of registration number plate of the motorcycle was

seized from an open place, therefore, it cannot be said that the said

number plate was seized on the discovery made by appellant

Rajesh @ Balvir.

Considered the submissions made by the counsel for the

appellants.

The broken number plate of the motorcycle has been seized

from the field of Bannasi Jatav, in which the crop of Mustard was

standing, therefore, it is clear that the broken piece of registration

number plate of the motorcycle was not visible and could not have

been recovered from a field having the crop of Mustard. Unless and

until, the person who had thrown the number plate, points out the

exact position as the crop was standing, even the owner of the field

could not have located any foreign article in his field.

Under these circumstances, the submission made by the

counsel for the appellants is hereby rejected.

Accordingly, the prosecution has succeeded in establishing

the guilt of appellant Rajesh @ Balvir beyond reasonable doubt by

proving that not only he was duly identified by the complainant

Veerendra Singh Parihar (P.W.5), but the broken number plate of

the motorcycle was also recovered at his instance vide seizure

memo Ex.P/6.

So far as the appellant Laxman @ Bhura is concerned,

except an amount of Rs.500 nothing incriminating has been seized

from his possession. However, it is already held that appellant

Laxman @ Bhura was duly identified by the complainant and

prosecution has proved his identification.

Section 9 of Evidence Act provides that identification is a

relevant fact.

Section 54-A of Cr.P.C. provides for identification of

arrested person. Thus, it is clear that the identification of an

accused is a relevant fact and has to be given importance.

Under these circumstances, this Court is of the considered

opinion that prosecution has not only succeeded in establishing that

all the three accused persons were duly identified by the

complainant but the motorcycle of the complainant Veerendra

Singh Parihar (PW/5) was seized from the possession of the

appellant Rahul @ Chhaviram and the broken piece of number

plate of the motorcycle of the complainant Veerendra Singh Parihar

(PW/5) was seized on the discovery made by appellant Rajesh @

Balvir. Accordingly, the conviction of the appellants for offence

under Sections 392, 397 IPC r/w Section 13 of MPDVPK Act is

hereby affirmed.

It is submitted by the counsel for the appellants that the

appellant Rajesh @ Balvir and Laxman @ Bhura were granted bail

and they have not misused the liberty. Further the appellant Rajesh

@ Chhaviram is in jail from the date of judgement. Accordingly, it

is submitted that appellants may be awarded jail sentence of the

period already undergone by them.

Considered the submissions made by the counsel for the

appellants.

Since, the appellants had robbed the complainant at the gun

point, therefore, they have been held guilty for committing offence

under Section 397 of I.P.C. The minimum sentence for offence

under Section 397 of I.P.C. is seven years. Therefore, no sentence

less than minimum sentence can be awarded. Accordingly, the

appellants cannot be awarded the jail sentence already undergone

by them.

Ex Consequenti, the jail sentence of Rigorous Imprisonment

of Seven Years and fine of Rs. 500/- with default imprisonment of

R.I. of 4 months is hereby affirmed.

The appellants Rajesh and Laxman @ Bhura are on bail.

Their bail bonds are hereby cancelled. They are directed to

immediately surrender before the Trial Court for undergoing the

remaining jail sentence.

The appellant Rahul @ Chhaviram is already in jail. He

shall undergo the remaining jail sentence.

A free copy of this judgment be given to the appellants.

The Cr.A. No. 678 of 2011 (Rajesh), Cr.A. No. 882/2011

(Laxman @ Bhura) and Cr.A. No. 701/2018 (Rahul @ Chhaviram)

are hereby Dismissed.

(G.S.Ahluwalia) Judge ar ABDUR RAHMAN 2021.07.26 10:54:27 +05'30'