Raju @ Yashwant vs The State Of Madhya Pradesh
2023 Latest Caselaw 434 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                               ON THE 9 th OF JANUARY, 2023
                                            CRIMINAL REVISION No. 28 of 2014

                          BETWEEN:-
                          RAJU @ YASHWANT S/O BITHALRAO, AGED ABOUT 43
                          YE A R S , OCCUPATION: LABOUR, R/O 15/9, NEHRU
                          NAGAR, INDORE (MADHYA PRADESH)

                                                                                          .....APPLICANT
                          (BY SHRI VIKAS YADAV - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION KSHIPRA, DISTRICT INDORE (MADHYA
                          PRADESH)

                                                                                       .....RESPONDENT
                          (BY SHRI KAPIL MAHANT - PANEL LAWYER)

                                This revision coming on for direction this day, th e court passed the
                          following:
                                                             ORDER

The applicant has preferred this criminal revision under Section 397 read

with Section 401 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') being aggrieved by the impugned judgment of conviction and sentence dated 24/12/2013 passed by I Additional Sessions Judge, Indore in Criminal Appeal No.296/2010, whereby the judgment of acquittal dated 21/04/2010 passed by Judicial Magistrate First Class, Sanwer, District Indore in Criminal Case No.785/2005 has been set aside and applicant has been convicted for the offence punishable under Section 379 of Indian Penal Code, 1860 (in short

Signature Not Verified 'IPC') and sentenced to under go 01 year RI with fine of Rs.1,000/- with default Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM

stipulation of 01 month RI.

02. The prosecution story in brief is that on 22/10/2005 at about 07:30 PM, the complainant Subhash Patel went to his agriculture field for irrigating his land and he parked his motorcycle bearing registration number MP-09-JJ-8914 nearby his field. During the irrigation, he saw that four persons were taking away his motorcycle. Then he shouted and with the help his neighbor Manohar and others, two persons were caught hold on the spot and other two persons ran away from the spot. Upon asking they disclosed their names as Raju S/o Bithalrao and Vicky @ Vikas S/o Mahendra. Both the accused persons were taken to the Police Station Kshipra along with motorcycle and thereafter,

complainant lodged an FIR against them.

03. After completion of the investigation, charge sheet has been filed against the present applicant along with other three co-accused persons before the JMFC, Sanwer, District Indore, who framed charges under Section 379 of IPC against all of them. Present applicant and other co-accused persons abjured their guilt and pleaded complete innocence. Applicant has taken a plea that he has been falsely implicated in the instant case. The trial Court after considering their submissions and after scrutinizing the evidence available on record, acquitted all the persons from the charge under Section 379 of IPC.

04. Being aggrieved by the said judgment of acquittal, respondent/State has preferred a criminal appeal before the I Additional Sessions Judge, Indore. The same was allowed and the judgment of acquittal passed by the trial Court has been set aside and applicant Raju @ Yashwant and Vicky @ Vikas both were found guilty for offence under Section 379 of IPC and have been sentenced to under go 01 year RI with fine of Rs.1,000/- with default Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM

stipulation. Being aggrieved by the said judgment of conviction and the sentence passed by the First Appellate Court, the applicant has preferred present criminal revision before this Court.

05. Learned counsel for the applicant contended that the judgment passed by the First Appellate Court is contrary to law and facts on record. The judgment is neither legal nor proper nor correct. First Appellate Court was wrong in not considering that if two views are possible then benefit of doubt should be given to the accused in the appeal against acquittal. The trial Court was also wrong in believing the prosecution witnesses and disbelieving the defence version. Applicant was on bail during the trial and he never misused the liberty granted to him. Hence, he prays to set aside the judgment of conviction passed by the First Appellate Court and to upheld the judgment of acquittal passed by the JMFC, Sanwer.

06. Per contra, learned counsel for the respondent/State opposes the revision and prays for its rejection by supporting the findings given by the First Appellate Court.

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

08. Learned counsel for the applicant submits that prosecution has produced the complainant Subhash Patel (PW-1) as the eye-witness, but there are so many material contradictions and omissions in the Court statement of

Subhash (PW-1) and his FIR (Ex.-P/1), therefore, his sole statement cannot be relied upon.

09. From perusal of the statement of the Subhash (PW-1) and the FIR (Ex.-P/1) it appears that Subhash stated initially that he did not know the name of two persons, who were caught hold by him on the spot, but after being turned hostile he deposed that present applicant Raju and another co-accused Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM

Vikas were the same persons, who were caught hold from the spot, but later on he again changed his version and has categorically stated that at the time of incident his motorcycle was driven by co-accused Vikas. Complainant Subhash (PW-1) mentioned in the FIR (Ex.-P/1) that he took both the persons along with his motorcycle to the police station, but on the contrary in the Court statement he has stated that when the police came on the spot and thereafter, police caught hold both the accused persons and he saw both the accused persons first time in the police station. In paragraph No.16 of his statement, he admits that police took the motorcycle and it was seized in the police station. In FIR (Ex.-P/1) he narrated that the persons, who were caught hold by them have disclosed their names as Raju and Vikas, but contrary to this in his cross- examination he has stated that police officials have disclosed him their names in the police station. These contradictions and omissions are material in nature and on the basis of the above, the whole statement of complainant Subhash (PW-1) appears to be doubtful.

10. Hari Narayan (PW-2) is also the eye-witness, but he has turned hostile. He categorically stated in his statement that he does not know about the incident. Manohar (PW-3) also stated in his statement that they caught hold two persons and handed over them to the police, but he does not know their names. Kamal (PW-4) stated that when he reached on the spot he saw that two miscreants have been caught hold by the Subash with the help of other persons but he could not identified the present applicant during the Dock Identification Parade before the trial Court.

11. After considering the evidence of the complainant Subhash and other witnesses, it appears that statement of the complainant Subhash is very doubtful

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM

and same was not supported by any other independent witnesses. The other witnesses have been turned hostile before the trial Court. Therefore, the sole statement of the complainant Subhash cannot be relied upon.

12. It is also notable that the stolen motorcycle was recovered from the possession of complainant and not from the possession of the present applicant. Merely because for some reason the accused was seen running or walking briskly after incident it does not follow that he was the culprit although a strong suspicion may arise against him.

13. In the instant case, the allegation levelled against the applicant is that he had removed the motorcycle from the possession of the complainant. Hence, proof of possession is essential ingredient, but prosecution has failed to prove the actual physical possession of the applicant/accused over the stolen motorcycle. After considering all the facts and circumstances of the case, it appears that neither on the basis of statement of eye-witness Subash (PW-1) nor on the basis of other surrounding evidence, the prosecution has failed to prove the case beyond reasonable doubt that present applicant stolen the motorcycle of the complainant. Nothing has been recovered from his possession. Therefore, present applicant cannot be convicted for theft. It is the settled position of law that where two views are possible, benefit of doubt can be given to the accused in the appeal against acquittal.

14. From perusal of the evidence available on record, it is established that the applicant was acquitted by the trial Court after due consideration, but First Appellate Court has wrongly reversed the findings given by the trial Court. The First Appellate Court has not considered the material contradictions and omissions in the statement of the complainant Subhash. Opinion of this Court is that prosecution has failed to prove any offence against the applicant. Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM

15. Consequently, this criminal revision stands allowed. The judgment dated 24/12/2013 passed by the First Appellate Court is set aside and the judgment passed by the JMFC, Sanwer, District Indore in Criminal Case No.785/2005 dated 21/04/2010 is hereby affirmed. The applicant is acquitted from the charge levelled against him under Section 379 of the IPC. The bail bond furnished by him also stands discharged.

16. Let record of the both the Courts below be sent back to the concerned Courts along with the copy of this order for necessary compliance.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 1/12/2023 11:42:10 AM