Khamchand Ahirwar vs The State Of Madhya Pradesh
2022 Latest Caselaw 1212 MP

                                                       1                             Cr.A.No.6818/2021




       HIGH COURT OF MADHYA PRADESH : JABALPUR
     BEFORE : HON'BLE SHRI JUSTICE VIRENDER SINGH

                            Criminal Appeal No.6818/2021

                                     Khamchand Ahirwar

                                                   vs.

                                 State of Madhya Pradesh
..............................................................................................................
     Shri Mayank Kumar Shrivastava, counsel for the appellant.
           Shri Sheshmani Mishra, Panel Lawyer for the State.
..............................................................................................................
                                    J U D G M E N T

27.01.2022

Being aggrieved by the judgment passed in Sessions Trial No.69/2020 dated 17.09.2021 passed by Sessions Judge, Raisen, whereby the appellant has been convicted under Section 392/34 IPC and sentenced to undergo RI for 4 years and fine of Rs.2000/-; in default of payment of fine, RI for 3 months.

2. The case of the prosecution, in brief, is that on 29.04.2018 at about 7:00 in the morning, victim/complainant Smt.Vijay Sen was on morning walk. While she was returning home, near Bandhan Garden, a youth in black clothes came from her back and snatched her gold chain which she was donning and ran away from the spot with his associate who was waiting for him with the motorcycle. They both ran away towards Idgah Road. She made a clamour. Her husband rushed to the spot who was also on morning walk with her but was at some distance. He chased the offenders but they managed to escape. Claiming that she could see the offenders, the complainant, who is

wife of the then SDM lodged FIR bearing Crime No.258/19 (Exhibit P-11) on the same day i.e. 29.04.2018.

3. The police started the investigation but nothing could be traced for the next two years. On 05.03.2020, the police arrested two persons namely Khamchand (present appellant) and Rohit (co-accused) and recovered a gold chain from the appellant and motorcycle from co- accused Rohit vide Exhibit P-4 to P-9. Both the persons were placed before the complainant for their identification. The complainant identified Rohit but could not identify the appellant. Chain was recovered from the appellant vide Ex.P-3 and was placed before the complainant for its identification which she identified correctly.

4. The police also prepared spot map Ex.P/2, recorded statements of the witnesses under Section 161 CrPC and filed the charge-sheet. Both the accused persons were charged under Section 392 of IPC. They abjured their guilt and pleaded for trial. After the trial, charge against accused Rohit was not found proved and he was acquitted but the trial Court held the appellant guilty for offence under Section 392 read with Sec. 34 IPC and awarded sentenced as stated above.

5. The appellant has preferred this appeal on the grounds that the judgment and order of the trial is contrary to the law and evidence on record. The evidence produced by the prosecution with regard to the identification and seizure is seriously doubtful. The trial Court has committed error in relying upon such type of evidence. There are serious discrepancies and contradictions in the statement of the witnesses. The police have arrested the appellant after 2 years of the incident i.e. on 05.03.2020 and foisted two cases against him simultaneously bearing Crime No.258/2019 (present case) and Crime

No.517/2019, both under Section 392 IPC. The appellant has been acquitted in Crime No.517/2019 while he has been convicted in the present crime i.e. 258/2019. The victim who is the wife of the Executive Magistrate could not identify the appellant in the TIP but before the Court she identified the appellant which shows that this witness is not trustworthy at all. Since she has completely changed her statement regarding identification of the appellant, his statement regarding identification of gold chain cannot be believed. It is also unbelievable that after snatching the gold chain, a person will keep it with him for two years even when he had ample opportunity to dispose it off.

6. Learned counsel appearing for the appellant has reiterated the grounds taken in the memo of appeal.

7. Learned Panel Lawyer has supported the impugned judgment.

8. I have heard the parties at length and have perused the record.

9. The fact has not been denied rather it is established from the evidence produced before the trial Court that during investigation complainant Vijay Sen PW-2 could not identify the appellant. In her cross-examination she has also admitted that identification parade was conducted in the police station and the police had shown her the appellant. Such type of identification cannot be believed and no conviction can be recorded on such piece of evidence.

10. With regard to seizure of the gold chain, it is to be noticed that both the independent witnesses namely Rashid Khan PW-3 and Mashook Khan PW-5 have not supported the case of the prosecution. Seizure has been made after 2 years of the incident. The complainant

had approached the police with a case that some unknown person had snatched her gold chain she was donning around her neck. Therefore, it was not possible that the chain remained intact but the prosecution had not come with a case that a broken chain was recovered from the possession of the appellant or that the complainant got it repaired after getting it back from the Court. Before the Court, complainant Vijay Sen PW-2 has admitted in paragraph-5 that the chain produced before the Court was intact or unbroken.

11. The complainant has admitted in her Court statement and memo of identification Ex.P-3 also support the fact that person who snatched the chain was 6 feet of height and his associate was waiting for him at some distance with the motorcycle, but before the Court she has admitted that the height of the appellant is not 6 feet but he is only 5.5 feet tall. In TIP, complainant did not identify the appellant as a person who snatched the chain rather she identified co-accused Rohit as the person who snatched the chain. Chain was not recovered from Rohit and he has been acquitted by the trial Court. There is no allegation against the appellant that he snatched the chain but chain has been recovered from his possession.

12. When considered all these facts and discrepancies appearing in the evidence of the prosecution, it appears that there are grounds to suspect the credibility of the statement of the complainant and other witnesses produced by the prosecution. The trial Court has not appreciated this evidence in right perspective. Therefore, its conclusion does not deserve to be affirmed.

13. In view of the unbelievable evidence with regard to seizure, recovery and identification of the stolen property i.e. gold chain and

contradictory evidence with regard to the identification of the appellant, the impugned conviction deserves to be set-aside.

14. Consequently, the impugned judgment and order of the trial Court is set-aside. The appellant is acquitted of the charge under Section 392/34 IPC.

15. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.

16. The order of the trial Court with regard to the disposal of the property is hereby affirmed.

17. The appeal stands allowed.

(VIRENDER SINGH) JUDGE anand Digitally signed by ANAND KRISHNA SEN Date: 2022.02.02 17:44:54 +05'30'