Krishnand @ Monu Sharma vs State Of M.P.
2023 Latest Caselaw 5694 MP

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                           IN   THE     HIGH COURT OF MADHYA PRADESH
                                              AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                           ON THE 10 th OF APRIL, 2023
                                       CRIMINAL REVISION No. 194 of 2007

                          BETWEEN:-
                          KRISHNAND    @   MONU    SHARMA     S/O S/O
                          PURSHOTTRAM SHARMA, AGED ABOUT 20 YEARS,
                          OCCUPATION: R/O MAMA PAAN BALE KI GALI,
                          KAMLAGANJ, SHIVPURI (MADHYA PRADESH)

                                                                            .....PETITIONER
                          (SHRI JITENDRA TYAGI- LEARNED COUNSEL FOR THE PETITIONER)

                          AND
                          STATE OF M.P. THROUGH POLICE STATION KOTWALI,
                          DISTRICT SHIVPURI (MADHYA PRADESH)

                                                                           .....RESPONDENT
                          (SHRI VPS TOMAR- COUNSEL FOR THE RESPONDENT- STATE)

                                       CRIMINAL REVISION No. 195 of 2007

                          BETWEEN:-
                          DHARAMDAS @ DAMDAM RATHOR S/O S/O VIJAY
                          RATHOR, AGED ABOUT 19 YEARS, OCCUPATION: R/O
                          SHANKARPUR     DANDA,     GHINGURA, SHIVPURI
                          (MADHYA PRADESH)

                                                                            .....PETITIONER
                          (SHRI F.A.SHAH, LEARNED COUNSEL FOR THE PETITIONER)

                          AND
                          STATE OF M.P. THROUGH POLICE STATION KOTWALI,
                          SHIVPURI (MADHYA PRADESH)

                                                                           .....RESPONDENT
                          (SHRI VPS TOMAR- LEARNED COUNSEL FOR THE RESPONDENT- STATE)

Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/11/2023
5:29:32 PM
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                                  Both the revisions coming on for hearing this day, the court passed
                          the following:
                                                              ORDER

This order shall also govern disposal of Criminal Revision No.195 of 2007 filed by Dhgaramdas alias Damdam Rathor as the facts of both criminal revisions are same.

Both criminal revisions under Section 397 read with Section 401 of CrPC have been preferred by petitioners Krishnanand alias Monu Sharma and Dharamdas alias Damdam Rathor against common judgment of conviction and sentence dated 19-02-2007 passed by 4th Additional Sessions Judge (Fast

Track Court), Shivpuri in Criminal Appeal Nos.83 of 2007 of 2007 and 49 of 2007 confirming the judgment dated 11-01-2007 passed by Court of JMFC, Shivpuri in Criminal Case No.1167 of 2006, whereby the petitioners have been convicted under Section 379 of IPC and sentenced to undergo one year rigorous imprisonment with fine of Rs.200/- with default stipulation.

Prosecution case, in short, is that complainant Bipin Agrawal (PW1) lodged an FIR vide Crime No.302 of 2005 at police station Kotwali, Shivpuri on 03-07-2005 alleging therein that on the date of incident at around 09:30 in the night he along with his friend Jaikumar Dubey (PW5) had gone for taking dinner at Sonchidiya Hotel on his Bajaj Motorcycle being registration no.MP 33BA 3427 and alighted the motorcycle in front of the hotel and after taking dinner, when they came out from the hotel, they did not find the motorcycle. Matter was investigated and during investigation on 05-07-2005 both the petitioners were apprehended and they were interrogated. From the possession of petitioner Dharamdas alias Dhamdam Rathor, the motorcycle was seized. Both petitioners were arrested. After completion of investigation and other Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/11/2023 5:29:32 PM

formalities, charge sheet was filed. After conclusion of trial, the trial Court convicted and sentenced the petitioners for offence under Section 379 of IPC. Being dissatisfied, the petitioners preferred criminal appeals and same were dismissed vide the impugned judgment. Hence, both the revisions.

It is submitted by counsel for the petitioners that the petitioners have been falsely implicated. The witnesses of memorandum of seizure memo, namely, Sunil Yadav (PW4) and Jaikumar Dubey (PW5) have not supported the prosecution case. Besides this, there is no recovery of alleged motorcycle from the possession of Krishnanand alias Monu. Only on the basis of memorandum of co-accused recorded under Section 27 of the Evidence Act, petitioner Krsihnanand alias Monu has been convicted by the trial Court as well as appellate Court. It is further contended that the stolen motorcycle was seized from the public place i.e. from the Highway and not from the exclusive possession of petitioner Dharamdas alias Damdam Rathore. It is further submitted by learned counsel for the petitioners that both the Courts below have committed an illegality in passing the impugned judgments of conviction and sentence against the petitioners as both the Courts below have failed to understand the scope of provisions of Section 27 of the Evidence Act.

On the other hand, the counsel for the State supported the impugned judgments and prayed for dismissal of revisions.

Looking to the facts and circumstances of case as well as records, it appears that stolen motorcycle was seized from the public place and memorandum of seizure witnesses have not supported the prosecution case. Petitioner Krishnanand alias Monu Sharma has been convicted only on the basis of memorandum of co-accused recorded under Section 27 of the Evidence Act. It is event that both the Courts below have committed an illegality as well Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/11/2023 5:29:32 PM

as perversity in passing the impugned judgments of conviction and order of sentence. Accordingly, both the revisions are allowed. The impugned judgments of conviction and order of sentence are hereby set aside. Both the petitioners are on bail, therefore, their bail bonds and surety bonds are discharged. They are acquitted of charge levelled against them. The fine amount deposited by the petitioners be refunded to them.

A copy of this order be sent along with records to the Courts below for information.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/11/2023 5:29:32 PM