Brajesh vs The State Of M.P.
2023 Latest Caselaw 7718 MP

                                                               1
                             IN    THE       HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                   ON THE 11 th OF MAY, 2023
                                               CRIMINAL APPEAL No. 96 of 2005

                            BETWEEN:-
                            1.    BRAJESH S/O RAMCHARAN LODHI, AGED ABOUT
                                  28 YEARS, OCCUPATION: NONE R/O VILLAGE
                                  MUHARIKHURD PS KHANIYADHANA DISTRICT
                                  SHIVPURI (MADHYA PRADESH)

                            2.    NATHU S/O MUNNALAL JATAV, AGED ABOUT 30
                                  YEARS, OCCUPATION: NA GRAM BADI MUHARI
                                  THANA KHANDIYADHANA DISTRICT SHIVPURI
                                  (MADHYA PRADESH)

                                                                                       .....APPELLANTS
                            (BY SHRI S.K.KHARE - ADVOCATE)

                            AND
                            THE STATE OF M.P. INCHARGE POLICE STATION PS
                            KHANIYADHANA DIST. SHIVPURI (MADHYA PRADESH)

                                                                                      .....RESPONDENT
                            (BY SHRI APS TOMAR - PUBLIC PROSECUTOR FOR THE STATE)

                                  Th is appeal coming on for hearing this day, t h e court passed the

                            following:
                                                                ORDER

With consent of both the parties heard finally.

Ins tant Criminal Appeal under Section 374(2) of CrPC has been preferred by appellants against the judgment of conviction and order of sentence dated 10.01.2005 in Special S.T.No.23/2004 passed by Special Judge, Shivpuri, District Shivpuri whereby the learned trial Court convicted the appellants-accused for offence under Section 392 of IPC r/w Section 11/13 of Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/13/2023 10:46:46 AM

MPDVPK Act and sentenced them to undergo three years' rigorous imprisonment with fine of Rs.5000/- each with default stipulation.

In brief, facts for the disposal of this appeal is that on 02.03.2004 complainant Mahesh Kumar (Halka Patwari Muharikala, Halka No.27) was returning after recovering arrears of land revenue in the evening from the village Muharikala. When he reached near Himmatpur crossing, two unknown person detained him and snatched the key of his motorcycle and also snatched the bag in which record of land revenue and Rs.11033/- was kept. Thereafter, a boy was coming on motorcycle from the village Muharikala who told to complainant that he saw those persons who snatched complainant's bag and motorcycle

bearing registration No. MP 33B A 1286, he also elaborated the name of those persons as appellants who snatched the aforesaid things of complainant. He also told him that when they will come before him, he will identify them. On his complaint, FIR bearing Crime No.51/04 has been lodged against appellants under Section 392 of IPC at Police Station Khaniadhana, Shivpuri. Appellants- accused were apprehended and at their behest the aforesaid motorcycle and Rs.6060/- was seized. Afterwards, charge sheet has been filed.

Learned advocate for the appellants made submission that trial court has not appreciated properly the evidence adduced by the prosecution and without any reliable evidence, trial Court has convicted the appellants and prayed that appeal be allowed and appellants be acquitted from the aforesaid charges which has been framed by the complainant against them.

Learned Public Prosecutor has vehemently opposed the arguments advanced by the learned counsel for the appellants that prosecution case is well supported by the evidence of complainant Mahesh and Investigating Officer of this case that trial Court has rightly convicted the appellants for the offence Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/13/2023 10:46:46 AM

punishable under Section 392 of IPC r/w Section 11/13 of MPDVPK Act.

We have to see whether conviction of appellants are as per law and evidence came on record or not. As per complainant, on 02.03.2004 he was returning after recovering arrears of land revenue in the evening from the village Muharikala. When he reached near Himmatpur crossing, two unknown person detained him and snatched the key of his motorcycle and also snatched the bag in which record of land revenue ant Rs.11033/- was present. Thereafter, a boy was coming on motorcycle from the village Muharikala who told him that he saw those persons who snatched complainant's bag and motorcycle, he also elaborated the name of those persons as appellant who snatched the aforesaid things of complainant. He also told him that when they will come before him, he will identify them. During cross-examination, complainant admitted that at the time of incident, he does not know the name of the appellants. He also admitted that the aforesaid incident was took place with him after sun-set.

When we go through the FIR lodged by the complainant, in the aforesaid complaint he has written that two unknown person detained him and snatched the key of his motorcycle and also snatched the bag in which record of land revenue and Rs.11033/- was present. Thereafter, a boy was coming on motorcycle from the village Muharikala who told him that he saw those persons who snatched his bag and motorcycle, he also elaborated the name of those

persons as Brijesh and Natthu who had snatched the aforesaid things of complainant. But, during examination-in-chief, he came to know the name of the appellants by one boy who was coming from village Muharikala, but evidence of the said boy has not been adduced by the prosecution, so that his evidence could be corroborated. Beside this, no identification was conducted during

Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/13/2023 10:46:46 AM

investigation of appellants by complainant so that identity of the appellants can be established. Beside this, police Sub-Inspector R.N.Yadav has stated that during investigation, he apprehended both the appellant and interrogated in front of Vedram (PW-6) and Ramcharan (PW-2).

Looking to the aforesaid facts and circumstances of the case, when at the time of incident it was dark then, complainant doesn't know the appellants and as per his FIR, he came to know the name of the appellants by one boy who was coming from village Muharikala. During investigation evidence of that boy has neither recorded nor produced before the Court and no identification was conducted regarding appellants. As per seizure of motorcycle, bag and currency are concerned, independent witnesses has not supported the prosecution case.

In these situation, trial Court has erred in convicting the appellants as well a s prosecution has failed to prove the case under Section 392 of IPC r/w Section 11/13 of MPDVPK Act beyond reasonable doubt against the appellants and appellants are entitled to get benefit of doubt.

I n view of the aforesaid, this appeal is allowed. Judgment of the trial Court dated 10.01.2005 is set aside. Appellants are acquitted from the charges under Section 392 of IPC r/w Section 11/13 of MPDVPK Act. Appellants are on bail, their bail bonds shall stand discharged.

This criminal appeal stands disposed of in above terms. Let a copy of this order be sent to the Court concerned for information. Certified copy as per rules/directions.

(DEEPAK KUMAR AGARWAL) JUDGE Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/13/2023 10:46:46 AM

Vijay

Signature Not Verified Signed by: VIJAY TRIPATHI Signing time: 5/13/2023 10:46:46 AM