Gurujlal Panika vs The State Of Madhya Pradesh
2023 Latest Caselaw 22018 MP

Madhya Pradesh High Court

Gurujlal Panika vs The State Of Madhya Pradesh on 21 December, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
            ON THE 21st OF DECEMBER, 2023
           CRIMINAL APPEAL No. 548 of 2015

BETWEEN:-
GURUJLAL PANIKA S/O SHRI HIRAI PANIKA,
AGED ABOUT 60 YEARS, DARSAGAR CHHOT
TOLA P.S. BHALUMADA ANUPPUR (MADHYA
PRADESH)
                                                 .....APPELLANT
(NONE)
AND
THE STATE OF MADHYA PRADESH P.S.
BHALUMADA ANUPPUR (MADHYA PRADESH)
                                              .....RESPONDENTS
(BY SHRI SURDEEP KHAMPARIYA - PANEL LAWYER)

               CRIMINAL APPEAL No. 783 of 2015
BETWEEN:-
LALA ALIAS RAJKUMAR KEWAT S/O SHRI
JAGANNATH, AGED ABOUT 37 YEARS, DAFAI
NUMBER 03 POLICE STATION BHALUMADA
DISTT. ANUPPUR (MADHYA PRADESH)

                                                 .....APPELLANT
  (NONE)
    AND
THE STATE OF MADHYA PRADESH P.S.
BHALUMADA    ANUPPUR   (MADHYA
PRADESH)

                                              .....RESPONDENTS
(BY SHRI SURDEEP KHAMPARIYA - PANEL LAWYER)

"Reserved on : 15.12.2023"
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  "Pronounced on : 21.12.2023".
        These appeals having been heard and reserved for judgment,
  coming on for pronouncement this day, the court passed the following:
                              JUDGMENT

1. By this common judgment, Cr.A.No.783/2015 filed by Lala @ Rajkumar Kewat shall also be disposed of.

2. Both the Criminal Appeals have been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 7-2-2015 passed by Additional Sessions Judge, Kotma, Distt. Anuppur, in S.T. No. 165 of 2013, by which the Appellants have been convicted under Section 411 of I.P.C.

3. It is not out of place to mention here that the Counsel for the Appellants did not appear on 14-12-2023, therefore, the hearing of the case was deferred with a specific observation, that if none appears on the next day also, then this Court in the light of Judgment passed by Supreme Court in the case of Suryabaksh Singh Vs. State of U.P. reported in (2014) 14 SCC 222, shall decide the matter after going through the record. On 15-12-2023 also, none appeared for the Appellants, therefore, this Court after going through the record and after hearing the State Counsel, had reserved the Judgment. Accordingly, the matter is being decided on merits.

4. The Appellants have been convicted under Section 411 of I.P.C. and have been sentenced to undergo the Rigorous Imprisonment of 1 year and fine of Rs. 1,000/- each with default imprisonment of 3 months R.I. each.

5. According to the prosecution story, the complainant Kedarnnath Mishra, lodged an F.I.R. to the effect that on 16-5-2013 at about 9.30 P.M., he was waylaid by three persons, and they took away his motor cycle, mobile phone, A.T.M. card and keys. Accordingly, the FIR in crime no. 144 of 2013 was registered at Police Station Bhalumada, Distt. Anuppur for offence under Section 392 of IPC. During the course of investigation, the robbed motor cycle was seized from the possession of the Appellant Gurujlal Panika, therefore, offence under Section 411 of IPC was also added.

6. The police after completing investigation, filed charge sheet under Section 392, 411 of IPC.

7. The Trial Court by order dated 16-11-2013, framed charge under Section 411 of IPC against Appellant Gurujlal and under section 394 of IPC against appellant Lala @ Rajkumar Kewat.

8. The Appellants abjured their guilt, and pleaded not guilty.

9. The Prosecution, in order to prove its case examined Surendra Prasad Mishra (P.W.1), Yodha Singh (P.W.2), Man Singh (P.W.3), Dinesh Tiwari (P.W.4), Kedarnath Mishra (P.W.5), Lalmani Mishra (P.W.6), Brijendra Mishra (P.W.7), Brijkishore (P.W.8), Arun Kumar Verma (P.W.9), Neta Singh (P.W.10), Nilesh Mishra (P.W.11), RooplalKewat (P.W.12), and R.K. Tripathi (P.W.13).

10. The Appellants did not examine any witness in their defence.

11. The Trial Court, by the impugned Judgment, convicted the Appellants for offence under Section 411 of IPC and sentenced them to undergo the jail imprisonment, as mentioned above. The appellant Lala @

Rajkumar Kewat was acquitted of the charge under section 394 of the I.P.C.

12. Considered the record of the case and also heard the Counsel for the State.

13. The Trial Court, by the impugned judgment held that the prosecution has failed to prove that the appellant Lala @ Rajkumar Kewat had committed the offence under Section 394 of IPC as there was no sufficient light to identify the assailants and further, the complainant had recently undergone the operation of cataract and therefore, it was not possible for him to identify the assailants in the dark. The Trial Court has also held that although the witnesses of seizure have turned hostile, but the investigating officer cannot be disbelieved merely on the ground that he is a police officer.

14. The Supreme Court in the case of Baldev Singh v. State of Haryana,reported in (2015) 17 SCC 554 has held as under :

10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.

11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police

officials in Girja Prasad v. State of M.P., it was held as under: (SCC pp. 632-33, paras 25-27) "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence.

But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a- century, in Aher Raja Khima v. State of Saurashtra, VenkataramaAyyar, J. stated: (AIR p. 230, para 40) '40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.'

27. In Tahir v. State (Delhi), dealing with a similar question, Dr A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6) '6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence

of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.'"

(emphasis in original)

15. Not only the stolen motor cycle, but diary, Ex.P.11 was seized from the possession of the Appellant Gurujlal Panika but the chasis number and engine number of the seized motor cycle was same which was mentioned in the application for grant of motor cycle on supurdaginama. The Appellant Gurujlal has not explained as to how he came in possession of the motor cycle of the complainant. Even otherwise a diary was also seized from appellant Gurujlal in which it was mentioned that motorcycle has been mortgaged by Naresh and Lala @ Rajkumar Kewat. Further, the Trial Court after exercising its power under Section 73 of Evidence Act, has also come to a conclusion that the diary entries are in the handwriting of the Appellant. Thus, this Court is of the considered opinion, that the conviction of the Appellant Gurujlal for offence under Section 411 of IPC as recorded by Trial Court doesnot call for any interference, accordingly it is affirmed.

16. So far as conviction of Lala @ Rajkumar Kewat is concerned, it is suffice to mention here that no charge under section 411 of the I.P.C. was framed against him. The ingredients of offence under section 394 of the I.P.C. are completely different.

17. Section 390 of I.P.C. reads as under :-

390. Robbery. In all robbery there is either theft or extortion.

When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

18. Thus, theft would be robbery in case if in order to the committing of the theft, or while committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongly restraint.

19. In the present case, there is no such allegation that appellant Lala @ Rajkumar was committing theft and during that offence the robbery was committed. The allegation which have been made against appellant Lala @ Rajkumar amounts to extortion which has been defined under section 383 of IPC and if at the time of committing of extortion if the person is put in fear of instant hurt or of instant

wrongful restraint to that person or to some other person and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted would amount to robbery by way of extortion.

20. Therefore, the allegations which have been made against appellant Lala @ Rajkumar are completely different from that of theft. In the present case, no alternative charge for offence under section 411 of IPC was framed. Since the basic ingredients of section 394 of IPC, i.e. robbery by extortion, are completely different from theft, therefore, this Court is of the considered opinion that in absence of charge under section 411 IPC, appellant Lala @ Rajkumar could not have been convicted under section 411 IPC. Thus, absence of charge cannot be termed as irregularity under section 215 Cr.P.C. The case in hand will not be covered by illustration to section 221 of Cr.P.C.

21. Under these circumstances, conviction of appellant Lala @ Rajkumar for the offence under section 411 IPC cannot be upheld in absence of specific allegation for the said charge. Accordingly, he is acquitted.

22. Now the next question for consideration is with regard to quantum of sentence to be awarded to appellant Gurujlal Panika.

23. The incident took place in the month of May 2013 and ten long years have passed. It is not the case of the respondent that appellant Gurujlal is a habitual offender. No criminal history of Appellant has been placed on record. No minimum sentence is prescribed for offence under Section 411 of Cr.P.C. Furthermore, the Appellant Gurujlal had remained in jail for three months. Accordingly, this Court is of considered opinion that the jail sentence already undergone by the

Appellant Gurujlal Panika would serve the justice. However, as Appellant Gurujlal had dealt with stolen article, therefore, the fine amount is enhanced to Rs. 5,000/-.

24. The enhanced fine amount be deposited by appellant Gurujlal within a period of three months from today, failing which, the jail sentence of 1 year R.I. as awarded by the Trial Court shall automatically get revived, and the Appellant Gurujlal shall undergo the same.

25. The bail bonds and surety bond of appellant Gurujlal and Lala @ Rajkumar Kewat are hereby cancelled.

26. Accordingly, judgment and sentence dated 7-2-2015 passed by Additional Sessions Judge, Kotma, Distt. Anuppur, in S.T. No. 165 of 2013 in respect of Lala @ Rajkumar Kewat is hereby set aside and the impugned judgment and sentence in respect of appellant Gurujlal Panika is modified to the extent mentioned above.

27. Let the record of the Trial Court along with copy of this Judgment be sent back to the Trial Court for necessary information and compliance

28. The Appeals succeed and are allowed to the extent mentioned above.

(G.S. AHLUWALIA) JUDGE

HS