Madhya Pradesh High Court
The State Of Madhya Pradesh vs Khemsingh on 14 March, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 14 th OF MARCH, 2023
CRIMINAL APPEAL No. 3362 of 2023
BETWEEN:-
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION P.S. G.R.P. (BG), GWALIOR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL )
AND
1. KHEMSINGH S/O LATE SHRI PADAMSINGH
BAVARIYA, AGED ABOUT 48 YEARS, R/O GRAM
JTAN KHANPUR P.S JIJHANA, DISTT. SAMLI
(UTTAR PRADESH)
2. KALE S/O SHISHPAL GADRA, AGED ABOUT 25
YEARS, CASTE GADAR, R/O VILLAGE DAVARSI
THANA MASURI DIST. GAZIABAD (UTTAR
PRADESH)
3. MOHANLAL S/O TILAKRAM RAJPUT, AGED
ABOUT 36 YEARS, R/O VILLAGE RAMPUR THANA
JHIJHANA DIST. SAMLI (UTTAR PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, Hon'ble Shri Justice
Milind Ramesh Phadke passed the following:
ORDER
Heard on I.A. No. 4486 of 2023 which is an application for leave to
appeal.
2. The present appeal under Section 378 of Cr.P.C has been preferred by the
State Government against the judgment dated 11.11.2022 passed in Sessions
Trial No. 60 of 2021 by the Special Judge (MPDVPK, Adhiniyam, 1981) and
Second Additional Sessions Judge, Gwalior whereby the present respondents
were acquitted of the offence u/s. 392/34 IPC r/w Section 11/13 of MPDVPK
Act and discharged from the aforesaid offences.
3. The facts of the case are that complainant Ashok Yadav s/o aged 38 years
resident of Gram Tamplore, Mandal Tekmal, Distt. Midak, Tilangana lodged an
oral complaint that on 04.07.2021 when he along with his wife Sheweta Yadav
were traveling in Dakshin Express in Coach S-9 Birth No. 28 from Sikandrabad
to Nizamuddin and in the midst of the way, when the train left Datia some
unknown persons snatched Mangal Sutra which was embedded in golden chain.
4. On the report of the complainant, G.R.P. Vidisha recorded crime at '0'
number and later on transferred it to GRP (BG), Gwalior where Crime No. 28
of 2021 under Section 392 of the IPC was registered against unknown persons.
During investigation accused/respondent Khem Singh S/o Padam Singh, Kale
S/o Shish Pal and Mohan Lal S/o Tilakram who were arrested in some other
Crime No. 85 of 2021, they accepted this crime and accordingly they were
made accused in the present crime and on the basis of the information given by
them some pieces of golden chain were recovered. After completion of the
investigation challan was filed and the matter was committed to the Sessions
Court.
5. Learned Trial Court after detailed scrutiny of the material available on
record and the evidence led by the prosecution acquitted the present
respondents of the offence u/s. 392/34 IPC r/w Section 11/13 of the MPDVPK
Act. Hence, present appeal has been preferred along with an application for
seeking leave of this Court for registration of the said appeal.
6. Learned counsel for the appellant/State submitted that the judgment passed
by the learned Trial Court suffers from patent illegality as it has not appreciated
the evidence on record in its true prospective and thus erred in acquitting
accused/respondents. It was further argued that the looted articles i.e. piece of
the chain was identified by the complainant Ashok Yadav (PW/1), but even
after the aforesaid identification the learned Trial Court only on the ground that
the identification of the looted articles since was done by the complainant
(PW/1) at the police station in the presence of police personnel and when the
witness of seizure memo has not supported the case of the prosecution has held
the identification to be doubtful and therefore, the entire process of
identification stands vitiated. It was further argued that when the prosecution
was able to establish link to the offence by seizing the looted article from the
custody of accused persons, the learned Trial Court has erred in acquitting
them. Thus, he has prayed for allowing the application for leave to appeal with a
direction to register present criminal appeal.
7. Heard counsel for the appellant/State and perused the record.
8. From the record, it is evident that the FIR was registered against some
unknown persons. In some other Crime No. 85 of 2021 the present respondents
were arrested and during interrogation of the said crime, they admitted to have
committed the present crime and at their instance recovery of pieces of gold
chain was shown to have been made, which is alleged to have been identified
by the complainant Ashok Yadav (PW/1 ) and this is made the basis of their
implication. The prosecution at no point of time had made efforts to conduct
TIP of the present respondent/accused. Since the FIR was against unknown
persons coupled with the fact that Sheweta Yadav ( PW/3 ) from whose neck
Mangal Sutra embedded gold chain was snatched could not identify the
accused persons in the Court and the identification of the pieces of the golden
chain was since not done in front of any Executive Magistrate rather was
conducted at Police Station in the presence of police officials the learned Trial
Court was right in concluding that it shall vitiate the entire identification
procedure adopted for identifying the looted articles. Since there was no TIP of
the respondent/accused, the seizure of the looted articles is also doubtful, the
conclusion arrived at by the learned Trial Court does not appear to be perverse
or illegal which warrants interference. Therefore, this Court deems it fit to reject
the application for leave to appeal.
9. Accordingly, the application is dismissed. Leave is not granted.
Consequently, the appeal is dismissed.
(RAVI MALIMATH) (MILIND RAMESH PHADKE)
CHIEF JUSTICE JUDGE
ar
ABDUR RAHMAN
2023.03.20
14:06:48 +05'30'
