Madhya Pradesh High Court
Kapil vs The State Of Madhya Pradesh on 18 December, 2023
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 11234 of 2022
BETWEEN:-
KAPIL S/O RATAN MALVIYA SOLANKI,
AGED ABOUT 26 YEARS,
OCCUPATION: AGRICULTURIST
R/O. BADAL KA BHATTA, BANGANGA
IN FRONT OF BALVEER AKHADA,
DIST.: INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI RITU RAJ BHATNAGAR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION PITHAMPUR
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAJESH JOSHI - ADVOCATE)
CRIMINAL APPEAL No. 947 of 2023
BETWEEN:-
ASHOK SOLANKI
S/O SHRI NANURAM SOLANKI,
AGED ABOUT 25 YEARS,
BALAI MOHALLA PANI KI TANKI KE PASS
MANDLAVADA, THANA PITHAMPUR
DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(SHRI KAILASH CHANDRA KAUSHAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION PITHAMPUR
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 19-12-2023
11:25:51
2
DISTRICT DHAR. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAJESH JOSHI - GOVT. ADVOCATE)
Reserved on: 30.11.2023
Delivered on: 18.12.2023
These appeals having been heard and reserved for orders, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This order shall govern the disposal of these appeals as they are arisen
out of same crime of the police station, hence, they are heard analogously and
are being decided by this common order.
2. These criminal appeals under Section 374 of Cr.P.C. has been filed by
the appellants being aggrieved by the judgment dated 21.09.2022, passed by the
First Additional Sessions Judge, Dhar, District- Dhar i n Sessions Trial
No.68/2019, whereby the appellants have been convicted for offence under
Sections 392 of IPC, 1860 and sentenced to undergo 7 years R.I with fine of
Rs.1000/- and in default of fine to undergo 3 months R.I in addition.
3. As per prosecution story, on 25.07.2019 at about 9.30 pm when the
complainant and his friend were returning to their house after completing their
work, on their way three persons came near them and enquired the way for
village Bardari. It is alleged that the accused persons on the pretext of
enquiring, snatched the mobile of the complainant, then the friend of the
complainant ran away from the spot thereafter, accused persons caught hold the
complainant, assaulted him and snatched wallet and documents of the
complainant. The complainant noted the motor cycle number of the accused
then the accused persons fled away from the spot. A report was filed in this
regard, on the basis of which FIR was registered against unknown persons for
offence under Section 392 of IPC, 1860.
4 . After completion of investigation, charge-sheet was
filed. Thereafter, the learned trial Court has framed charges
against the appellants under Section 392 of IPC. The matter
was later on committed to the Court of Session.
5. In support of the case, the prosecution has examined as many as 7
witnesses namely Goluram (PW-1), Lokendra Marco (PW-2), Sunil (PW-3),
Santosh (PW-4), Abhishek Oharah (PW-5), Santosh Patidar (PW-6), and Anjali
Gupta (PW-7). No witness has been adduced by the appellants in their
defence. The learned Trial Court on appreciation of the evidence and
arguments adduced by the parties, finally concluded the case and convicted the
appellants for the commission of the offence punishable under Section 392 of
IPC, vide the impugned judgment.
6. Learned counsel for the appellants, being crestfallen by the aforesaid
finding of the Trial Court, submitted that as per the statements of Goluram
(PW-1) and Lokendra (PW-2), there is no allegation against the appellants
regarding committing loot. The seizure witnesses Sunil (PW-3), Santosh (PW-
4) have also not supported the case of prosecution and thereby seizure is not
proved. The appellants have not been identified by the witnesses. There is a lot
of contradictions in the statements of prosecution witnesses. No other
connecting evidence is available to prove the fact that the appellants have
committed loot. In this way, the Trial Court, without proper appreciation of
evidence, erred in its finding of conviction. Alternatively, learned counsel has
also submitted that since the appellants have suffered more than one year
custody period, sentence of imprisonment may be reduced to the period
already undergone by enhancing the find amount.
7. Learned Government Advocate for the respondent/State on the other
hand supports the impugned judgment and prays for dismissal of this appeal. It
is further submitted that the learned trial Court has passed the impugned
judgment after considering each and every circumstances of the case and
convicted the appellants rightly.
8.In backdrop of the rival submissions and on perusal of the record, the
point for consideration is as to whether the finding of conviction and sentencing
of the appellants in respective offence, is incorrect in the eyes of law and facts?
9 . I n this respect, the statements of victim Goluram (PW-1) and
Lokendra (PW-2) have been examined. Witness Goluram vividly stated that on
the date of incident, three persons came on bike and started to snatch the
mobile from Lokendra. He further stated that the accused Kapil hold him and
slapped him two times, thereafter, snatched his mobile. Further, the accused
Ashok has snatched his purse containing Adhar Card, ID Card and other things
along with Rs. 220/-. In this way, Goluram (PW-1) specifically taken the name
of both the appellants in his Court statement. Lokendra (PW-2) also clearly
narrated that he identified accused through video conferencing. However, he
stated that the accused Ashok is the person who has tried to snatch his mobile.
He has also supported the statement of Goluram (PW-1). The statements of
both the witnesses have not been shaken in their cross-examination.
10.Witness Sunil (PW-3) and Santosh (PW-4) are the witnesses of
memorandum statement and seizure but they have not supported the case of
prosecution, however, the memorandum statement and seizure memo were well
supported by Investigating Officer Santosh Patidar (PW-6). However, in this
case, the statement of Anjuli Gupta(PW-7) is also important who has conducted
the identification parade and this witness has also well fortified the prosecution
case. As such, the prosecution case has not only been supported by eye-
witness but also by police officials
11.The testimonies of aforesaid all witnesses have not been shaken in
their cross-examination and they have stuck with their examination-in-chief.
Certainly, Sunil(PW-3) and Santosh (PW-4) have not supported the seizure and
memorandum statements but only because of this, the testimonies of police
personnel cannot be disbelieved. Virtually, the Investigating Officer Santosh
Patidar (PW-6) has explicitly supported the seizure and memorandum
statements.
12. On this aspect, it is by now well settled that the testimony of police
witnesses regarding disclosure statement and seizure memo could not be
discarded only because they are not supported by independent witnesses. In
this regard the following ratio laid down by Hon'ble Supreme Court rendered in
Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311 , is
propitious to produce here:-
"8.........The testimony of police personnel should be
treated in the same manner as testimony of any other
witness and there is no principle of law that without
corroboration by independent witnesses their testimony
can not be relied upon. The presumption that a person
acts honestly applies as much in favour of police
personnel as of other persons and it is not a proper
judicial approach to distrust and suspect them without
good grounds........"
13. In a recent full bench decision of Hon'ble Apex Court rendered in
Rizwan Khan v. State of Chhatisgarh, dated 10.09.2020 reported as
AIRONLINE 2020 SC 722, it is held as under:-
"........It is true that all the aforesaid witnesses are police
officials and two independent witnesses, who were
panchnama witnesses had turned hostile. However, all the
aforesaid police witnesses are found to be reliable and
trustworthy. All of them have been thoroughly cross-
examined by the defence. There is no allegation of any
enmity between the police witnesses and the accused. No
such defence has been taken in the statement under Section
313 Cr.P.C. There is no law that the evidence of police
officials, unless supported by independent evidence, is to be
discarded and/or unworthy of acceptance."
14. In another recent decision of Hon'ble Supreme Court rendered in
Surinder Kumar v. State of Punjab, 2020(2) SCC 563, while considering
somewhat similar situation, it was observed that "The evidence of official
witnesses cannot be distrusted and disbelieved, merely on account of their
official status."
15.Applying the aforesaid law laid down by the Apex Court, the evidence
of Investigating Officer Santosh Patidar (PW-6) regarding the disclosure
statements Exs.P-15 and 16, the seizure of stolen property (Ex. P-17) cannot be
disbelieved only because the punch witnesses have not supported the
prosecution case. This case is well supported by the FIR lodged by the
complainant who has also graphically supported the contents of FIR. The
contents regarding incident has been well fortified not only by the complainant
but also by the other witnesses in their Court statements. The accused persons
are evidently identified by the prosecution witnesses during their statements. As
such, the contention regarding improper identification is also found without
merits.
16.So far as the omissions and contradictions are concerned, no such
omissions or contradictions have been adverted by learned counsel for the
appellants which goes to the root of the case. In this way, it is found that the
learned trial Court has well considered the material available on record on
proper perspectives and has not committed any error in appreciation of
evidence. Accordingly, no infirmity or illegality is appeared in the impugned
order of conviction passed by the learned trial Court, hence, the same is
upheld.
17. So far as the sentence part is concerned, considering the fact that the
appellants are facing the trial for more than 4 years and appellant Kapil and
Ashok have already suffered more than 1 year and 5 months in custody and 1
year and 10 months respectively, judgment of learned trial Court is modified to
the extent that the sentence of the appellants be reduced to the period of 2 years
in place of 7 years by enhancing the total fine amount from Rs.1,000/- to
Rs.25,000/-, which shall be paid by appellants before releasing from the jail. In
case of failure of payment of enhanced fine amount of Rs.25,000/- before the
Court below as stipulated above, the appellants shall further undergo 2 months
S.I. and thereafter complying of the same, they shall be released from the jail, if
not required in any other case.
18. With the aforesaid observations and directions, the appeal stands
disposed of.
19. A copy of this order be sent to the concerned Court for necessary
information.
20. The order of the trial Court regarding disposal of the seized article, if
any, stands confirmed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
VD
