Aashish Gadge vs The State Of Madhya Pradesh
2022 Latest Caselaw 4170 MP

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      IN THE HIGH COURT OF MADHYA PRADESH AT
                            JABALPUR
                               BEFORE
      HON'BLE SMT. JUSTICE NANDITA DUBEY


                CRIMINAL APPEAL No. 1763/2013

      Between:-
      AASHISH GADGE, S/O LAKHANLAL GADGE ,
      AGED ABOUT 22 YEARS, R/O MELAKHANTI,
       LOHARINAKA, SONGIR, KABRISTAN ROAD, KHANDWA
      PRESENTLY RESIDES DURGANAGAR,
      JHUGGI KHAND-3 BAGSEVANIA
       BHOPAL (MADHYA PRADESH)
                                                           .....APPELLANT

      (By Shri Alok Tiwari, Advocate as Amicus Curiae )

      AND

      THE STATE OF MADHYA PRADESH
      TH:P.S. BAIRAGARH, DISTT. BHOPAL
      (MADHYA PRADESH)
                                                          .....RESPONDENT
      (By Shri Shetal Tiwari, Panel Lawyer)


              Arguments heard on   : 28.10.2021
             Judgment delivered on : 25.03.2022




                           JUDGMENT

This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 19.06.2013 passed by Thirteenth Additional Sessions Judge, Bhopal in S.T. No.668/2011, whereby the appellant has been found guilty for the offence punishable under Section 392 of the I.P.C. and sentenced to undergo Rigorous

Imprisonment for five years and fine of Rs.500/- with default stipulation.

2. As per prosecution, a complaint was lodged by Rukmani (P.W.-3) that while she was strolling near her house, the accused, who met her regularly for past three days walked up to her and on the pretext of asking time, snatched her chain and ran away. On the basis of this report, FIR was registered at Crime No. 287/2020, under Sections 392 of I.P.C. at Police Station Bairagarh, Bhopal. Statements of complainant and her son were recorded and spot verification was done. On 09.06.2011, while the SHO of P.S. Bagsevania was investigating the Crime No.346/2011, interrogated Sanjay @ Kalu and Ashish (accused persons), who confessed regarding many snatching incidents. On the basis of their memorandum, many gold chains and mangal sutra were recovered. The incharge of P.S. Bairagarh was also informed of this seizure. The seized chain was identified by the complainant. Thereafter, the accused persons were formally arrested.

3. After conclusion of the investigation, challan was filed under Section 392 of I.P.C. against the two accused persons. After committal, charge as aforestated was framed. The accused persons abjured the guilt. The prosecution examined 9 witnesses to substantiate the charge.

4. The trial Court after marshalling the evidence, acquitted accused No.1 Sanjay @ Kalu as no evidence was found against him, whereas convicted accused No.2/present appellant under Section 392 of I.P.C., relying mainly on the evidence of Rukmani (P.W.-3), as she has identified the accused before the Court. However, the learned Court has found the seizure and identification of gold chain as doubtful

and vitiated as the same was done in the presence of police personnels. The learned Court has also taken note of the fact that P.W.-3 Rukmani has not mentioned any identification mark or weight etc. of her chain, which was snatched.

5. Heard the learned counsel for the parties and perused the record.

6. In the present case, the trial Court has convicted the accused/appellant only for the reason that he was identified by the complainant in the Court. The trial Court has entirely overlooked the statement of the complainant in para 3 and 4 of her cross-examination, wherein she has stated that she could not identify the accused from the photographs, which were shown to her when she went to lodge the complaint in the police Station, Bairagarh. In her cross-examination, she has stated that she had identified the accused in identification parade held in the jail because a day prior to that a police man had come to her house to show her the photograph of the present appellant. Under the circumstances, the identification parade conducted by the prosecution was defective and has no meaning in as much as the witness was shown the photograph of the accused to be identified on the next day in the jail.

7. As narrated hereinabove, the seizure and identification of the 'chain' recovered from the appellant was disbelieved by the trial Court, under the circumstances, there was no other corroborative evidence available on record to connect the appellant/accused with the crime.

8. It is settled law that the prosecution has to prove the guilt of the accused beyond reasonable doubt and it is also the settled position of law in criminal justice that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.

9. Accordingly, the appeal filed by the appellant is hereby allowed and his conviction under Section 392 of the I.P.C. is hereby set aside. He be released forthwith, if not required in any other case.

(Nandita Dubey) Judge SMT. GEETHA NAIR 25/03/2022 gn 2022.03.25 15:48:26 +05'30'