Madhya Pradesh High Court
Faheem Khan vs The State Of Madhya Pradesh on 28 October, 2021
Author: Virender Singh
1
CRA No.732/2013
THE HIGH COURT OF MADHYA PRADESH:JABALPUR
(Single Bench : Hon'ble Shri Justice Virender Singh)
Criminal Appeal No.732/2013
Faheem Khan ...Appellant
Versus
State of Madhya Pradesh ...Respondent
Appearance
Ms. Manju Khatri, counsel for the appellant as Amicus Curiae.
Ms. Priyanka Mishra, Government Advocate for the respondent/State.
JUDGMENT
(28.10.2021)
This appeal has been preferred by the appellant against the
judgment and order dated 12.03.2013 passed by the I st Additional
Sessions Judge, Bhopal in Session Trial No.586/2012, whereby the
appellant has been convicted under Section 392 of IPC and sentenced
to undergo R.I. for 4 years with fine of Rs.2,000/- and in default of
payment of fine, suffer R.I. for 6 months.
2. The prosecution case, in brief, is that on 21.07.2010 at
about 01:00 p.m. (in the afternoon), the complainant namely Ms.
Priyanshi Jain was going to pick up her daughter from bus stop. On her
way, when she reached near Ashirwad Kirana Store, a bike borne
young man came from her back, snatched her gold chain from her neck
weighing about 25gms. and fled way from the spot. She lodged an
F.I.R. (Exhibit-P/1) bearing Crime No.381/2010 at Police Station-
Kohefiza, Bhopal immediately after the incident. The police registered
Signature Not Verified
SAN
Digitally signed by ASHISH KUMAR JAIN
Date: 2021.10.29 18:41:12 IST
CRA No.732/2013
a case, prepared spot map (Exhibit-P/2), recorded statements of the
witnesses, arrested the appellant on 17.05.2012, recovered a gold chain
from his possession and seized the same vide seizure memo (Exhibit-
P/6). The accused and the gold chain placed before the complainant for
identification and she identified both correctly. The proceedings were
deduced in writing as Exhibit-P/3 & P/4. After completing the
investigation, the police filed charge-sheet.
3. The accused charged under Section 392 of IPC. He denied the
charge and requested for trial. After the trial, he has been convicted
and sentenced as stated above.
4. The appellant has preferred this appeal on the ground that the
incident had taken place in a fraction of second. As the offender had
come from the back of the complainant, it was not possible for anyone
to identify him. The complainant has never revealed this fact at the
time of lodging F.I.R. or at the time of recording her police statement
that she could identify the appellant at the time of incident. Before the
Court also, she has admitted the circumstances wherein identification
of a person is not possible by the victim. Further, in her cross-
examination, she has admitted that during the entire proceedings of
identification, the policemen were present with her and in their
presence only, she identified the appellant, therefore, the learned trial
Court had erred in convicting the appellant.
5. Further, it is submitted that the stolen property has never been
recovered from the possession of the appellant. The police have
arrested accused and foisted total 17 cases at the same time against
him, this itself makes the entire prosecution case doubtful. It is
inherently improbable that after robbing 17 persons one after the other
at the different time, the person may keep the stolen property with him
at his house, that too, for 2 years as the incident took place on
Signature Not Verified
SAN
Digitally signed by ASHISH KUMAR JAIN
Date: 2021.10.29 18:41:12 IST
CRA No.732/2013
21.07.2010 and the appellant has been arrested and recovery has been
effected on 08.05.2012. The appellant has been falsely implicated in
this case. He is the first offender and was only 24 years of age at the
time of his arrest in this case. He has served out substantial period of
sentence, therefore, he is entitled for acquittal or at least his sentence
may be reduced to the period already undergone.
6. Per contra, learned Government Advocate for the State
submitted that the recovery has been made from the accused/appellant
on the basis of his disclosure statement and it has been effected from
his house. Nothing has been brought on record to doubt the recovery
made by responsible police officer. At the same time, several looted
articles were recovered from the possession of the appellant, therefore,
he has been impleaded in all those cases of robbery of whose stolen
property was recovered from his possession. Number of cases, in
which the appellant found involved shows that he is hardcore and
habitual criminal, therefore, he is not entitled for any leniency and the
appeal deserves to be dismissed.
7. Heard the learned counsel for the parties at length and perused
the record.
8. Before the trial Court, the prosecution has examined complainant
Ms. Priyanshi Jain (P.W.-1), she has stated that on the date of incident
when she was going to pick up her daughter from the bus stop at about
1:00 p.m. (in the afternoon), an unknown bike borne youth came from
the back, snatched her gold chain she was donning and fled away from
the spot. She immediately lodged the report and the police registered
the case. This statement had not been challenged in the cross-
examination. Sub-inspector Manoj Singh Rajput (P.W.-7) has
confirmed lodging of the report by the complainant. Further,
statements of both these witnesses are supported with the F.I.R.
Signature Not Verified
SAN
Digitally signed by ASHISH KUMAR JAIN
Date: 2021.10.29 18:41:12 IST
CRA No.732/2013
(Exhibit-P/1), therefore, there is nothing on record to doubt the
genuineness of the incident.
9. Inspector-Mr. C.P. Dwivedi of Police Station-Bag Sevaniya,
Bhopal has deposed before the trial Court that after receiving
information, he accosted the appellant and interrogated him. He
disclosed before the police regarding the property looted by him in the
several incidents and also consented to effect the recovery. Inspector-
Mr. C.P. Dwivedi took him to his house where he recovered several
stolen property/gold ornaments from the place disclosed by the
appellant. This fact could not be contradicted in his cross-examination.
There is nothing on record to disbelieve or doubt the statement or the
proceedings taken up by Mr. Dwivedi regarding recovery of the stolen
property i.e. gold chain of this case.
10. Complainant-Ms. Priyanshi Jain has stated on oath before the
trial Court that she was called by the police for identification of her
chain robbed by the accused and she correctly identified her chain.
Advocate-Randhir Singh Thakur (P.W.-6) stated that on the request of
the police, he conducted the proceedings of identification of gold chain
by complainant and before him, she correctly identified her chain. In
the cross-examination, statements of both the witnesses have remained
intact and were very well supported by identification memo (Exhibit-
P/3).
11. It is true that complainant-Ms. Priyanshi Jain admitted in
paragraphs 7 and 8 of her cross-examination that at the time of
identification of the appellant, several police men were present in the
jail. She further admitted that the persons of identical physique were
not mixed with the accused and before identification, she discussed the
fact with Tehsildar who conducted the identification parade, therefore,
such identification cannot be relied upon or used to convict the
Signature Not Verified
SAN
Digitally signed by ASHISH KUMAR JAIN
Date: 2021.10.29 18:41:12 IST
CRA No.732/2013
appellant. However, the fact is that the incident of this case is
unchallenged and there is nothing to discard, disbelieve or doubt the
recovery of stolen property made from the possession of the appellant
or its identification by the complainant. In the identification parade
conducted by an Advocate himself. The trial Court has rightly
appreciated the evidence and relying upon it, had correctly convicted
the accused.
12. It is not denied that at the same time, several stolen articles have
been recovered from the possession of the appellant. He has been
impleaded and tried in 17 cases of the identical nature.
13. On the request of the Court, Ms. Priyanka Mishra, learned
Government Advocate called report from the jail and communication
No.6447/okjaV/21 Bhopal dated 27.10.2021 sent by the Superintendent,
Central Jail, Bhopal also shows that the appellant has been convicted
in all 17 cases and he is being served sentenced awarded by the Court
in all those cases in the sequence one after the other and at present, he
is serving the sentence awarded in the present case. In such a situation,
I am in consensus with the learned Government Advocate that the
appellant is not entitled for any leniency.
14. Resultantly, the appeal fails and is hereby dismissed. The
conviction and sentence of the appellant is upheld.
(Virender Singh)
Judge
@shish
Signature Not Verified
SAN
Digitally signed by ASHISH KUMAR JAIN
Date: 2021.10.29 18:41:12 IST
