Madhya Pradesh High Court
Raj Kahar @ Khassu vs The State Of Madhya Pradesh on 2 January, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 2 nd OF JANUARY, 2024
CRIMINAL APPEAL No. 10652 of 2023
BETWEEN:-
1. RAJ KAHAR @ GHASSU S/O JAGDISH KAHAR,
AGED ABOUT 22 YEARS, OCCUPATION: PRIVATE
JOB, R/O WARD NO.26, KHANPUR, P.S.
INDUSTRIAL AREA SATLAPUR, DISTT. RAISEN
(M.P.)
2. RAHUL MEHRA @ SONU S/O SOMAN SINGH
MEHRA, AGED ABOUT 31 YEARS, OCCUPATION:
LABOUR, R/O HOUSE OF DEEPCHAND MEHRA,
WARD NO.26, KHANPUR, POLICE STATION
INDUSTRIAL AREA, SATLAPUR, DISTRICT-
RAISEN (M.P.)
.....APPELLANT
(BY SHRI SAURABH SINGH THAKUR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
INDUSTRIAL AREA SATLAPUR, DISTT. RAISEN (M.P.)
.....RESPONDENT
(BY MS. PREETI SINGH - PANEL LAWYER)
Reserved on : 13.12.2023
Pronounced on : 02.01.2024
.......................................................................................................
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
The appellants have filed this criminal appeal challenging the judgment
dated 07.08.2023 passed by the Addl. Sessions Judge, Goharganj, District
Raisen in S.T. No.199/2022, whereby they have been convicted for the offence
punishable under Section 379/34 of IPC and sentenced to undergo R.I. for 2
years with fine of Rs.5,000/- and additional R.I. for three months in case of
non-payment of fine.
2. The facts of the prosecution case may be summarized as that complainant
Arvind Kumar Pandey has a company in the name of Savitri Steel located at
Khanpura Mandideep area. On 26.04.2022 the complainant came to his factory
at around 11 p.m. he parked his Honda Car bearing registration
No.MP04CR8917 in front of company gate. The car was locked. He went
inside the company and the main gate was also locked. At around 2:30 p.m. he
came out of the company and found that the car door was open, one person
was sitting inside the car and the other was standing nearby it. The complainant
tried to nab them but the boy standing nearby the car took out a knife, on seeing
it the complainant stopped, which allowed the space to the two boys to run
away. Afterwards the complainant checked inside the car, the articles were
lying scattered, the dickey was also open, the black colour purse of
complainant was missing in which he had kept cash of Rs.15,000/-, original
driving licence, original Adhar card, original PAN card, original voter ID, Best
Price card and three ATM cards. Those two unknown persons had stolen the
purse and those items. The complainant informed the incident to his employees
and reported the matter to Police Station Oudhyogik Kshetra, Satlapur, district
Raisen, where at Crime No.83/2022 the FIR was registered and the matter was
investigated. After completion of investigation, the charge-sheet was filed and
the trial was held, in which the appellants were acquitted of the charge of
Section 392/34 of IPC and were held guilty for the offence under Section
379/34 of IPC and sentenced as aforesaid.
3. The grounds raised in this criminal appeal are that the impugned judgment
of conviction and sentence is against the evidence and facts available on
record. There were great contradictions in the testimony of witnesses. The
witnesses were not stable on the statement during cross-examination. Most of
the witnesses did not see the incident themselves and without properly
understanding the statements of witnesses the judgment of conviction was
delivered. It was, therefore, prayed that the appeal should be allowed and the
appellants be acquitted. During final arguments it was further argued that the
TIP conducted during investigation was a tainted proceeding and further the
appellants are in custody for a long period, i.e. since 27.04.2022.
4. The State has opposed the present appeal both on the count of finding of
conviction and the quantum of sentence and has requested that the appeal
should be dismissed.
5. Both the parties have been heard and the record has been perused.
6. The FIR registered in this case has been marked as Ex.P1 and it shows that
the incident occurred on 26.04.22 at around 4:30 pm and the FIR was registered
on the same day at around 21:30 pm. The FIR does not name any person and
it has been registered against two unknown persons. This fact reveals that by
the time the FIR was lodged the identity of persons committing crime was not
known.
7. Complainant Arvind Kumar Pandey (PW1) has claimed that his
documents and cash amount of Rs.15,000/- which were in his purse kept in said
car were stolen by two persons at around 2 p.m. in the afternoon when his car
was parked in front of his factory gate in Mandideep and appellant Ghassu was
arrested on the date of incident itself, while appellant Rahul was arrested next
day. He has further deposed that Police had nabbed one person within an hour
of the incident. He has also claimed that when appellant Raj @ Ghassu was
arrested by the police, the witness was present. According to him, the face of
appellant Raj @ Ghassu was not covered when he first saw him after the
incident. The testimony of this witness reveals that almost within an hour of the
incident, appellant Raj @ Ghassu was nabbed by the police in presence of this
witness, who had the occasion to see the face of appellant at that moment, while
the other appellant namely Rahul was nabbed by the police next day. These
statements of complainant shroud, a mystery about the fact that if one of the
wrongdoers was nabbed within just one hour of the incident, then why the FIR
lodged 7 hours later did not name him.
8. This could have been argued on behalf of prosecution that the complainant
had made mistake about the date of arrest of appellant Raj @ Ghassu, but this
mistake has also been committed by another witness working in the factory and
he is Sachidanand Upadhyay (PW3). According to this witness, when he came
to know about the incident he went to the police, who came into action
immediately and within 2-3 hours of the incident, one of the miscreants was
nabbed. This witness has also claimed that the other appellant was nabbed on
the second day. Interestingly, neither the complainant nor this witness have been
declared hostile by the prosecution despite the prosecution's claim being that
appellant Raj @ Ghassu was nabbed on 27.4.2022, i.e. next day of the
incident. The statements of Sachidanand Upadhyay (PW3) further deepens the
mystery about the FIR against unknown persons.
9 . Complainant Arvind Kumar Pandey (PW1) and witness Sachidanand
Upadhyay (PW3) both have testified in the Court on oath that on interrogation,
appellant Raj @ Ghassu revealed that the driving licence and the various cards
belonging to complainant were kept in his room and on the basis of this
information, police recovered the documents belonging to the complainant in
the presence of these two witnesses. The memorandum of statement and the
seizure memo prepared in this case are Ex.P5, P6 and P7. Interestingly, the
testimony of Arvind Kumar Pandey (PW1) and Sachidanand Upadhyay (PW3)
could not be demolished during cross-examination regarding the information
given by appellant Raj @ Ghassu and the seizure of documents belonging to
complainant from the possession of this appellant.
10. The only point on which the memorandum statement and the seizure
memo marked as Ex.P5 to P7 could have been challenged was the date of
preparation of these documents. In this regard, the testimony of I.O. namely
Vinod Parmar (PW6) has been examined. This witness claims that he
interrogated appellant Raj @ Ghassu on 27.04.2022 and then made the seizure
but he has not revealed on what basis he interrogated appellant Raj @ Ghassu.
He has not at all revealed the reason on the basis of which he entertained
suspicion against appellant Raj @ Ghassu. Non revelation on his part gives
strength to the version of complainant Arvind Kumar Pandey (PW1) and
Sachidanand Upadhyay (PW3) that appellant Raj @ Ghassu was nabbed on the
date of incident itself and after nabbing him the FIR was registered. It appears
that to claim credit or to conceal the actual time of arrest the Investigating
Officer namely Vinod Parmar fabricated facts about the date and time of
nabbing the appellant Raj @ Ghassu. Despite the falsification of record
regarding the date and time of arrest this fact remains unchallenged that the
documents belonging to complainant were seized from the possession of
appellant Raj @ Ghassu. The defence has failed to prove any fact which would
show animosity between appellant Raj @ Ghassu and witnesses Arvind Kumar
Pandey as well as Sachidanand Upadhyaya to falsely implicate the appellant in
the case.
11. Learned counsel for appellant has also placed reliance on the fact that
before conducting TIP, complainant was shown the face of appellant in police
station, therefore, the TIP should not be relied upon. Record reveals that the
TIP was conducted by Naib Tahsildar Lakhanlal (PW5) on 23.05.2022 and he
prepared the Shinaktgi Panchnama Ex.P11, but complainant Arvind Kumar
Pandey (PW1) has admitted that after the incident he had seen appellant Raj @
Ghassu in the police station, as his face was not covered. This admission has
adversely affected the sanctity of TIP, therefore, TIP cannot be the basis to
hold appellant Raj @ Ghassu as the convict.
12. On the basis of entire evidence available on record, it is proved that
appellant Raj @ Ghassu committed theft of the documents as well as cash
belonging to complainant Arvind Kumar Pandey from his car and all the
documents belonging to complainant were recovered from the possession of
appellant Raj @ Ghassu. His conviction under Section 379 of IPC, therefore,
appears to be justified.
13. It is claimed by the prosecution that other appellant namely Rahul was
also involved in the crime, but no TIP was conducted for establishing the
identity of appellant Rahul as the companion of co-accused Raj @ Ghassu. He
was first time identified by the complainant during his court testimony.
Incidentally, the offence was committed on 26.04.2022 and the statements of
complainant Arvind Kumar Pandey were recorded before the Court on
09.01.2023. Interestingly, no stolen/looted property was recovered from the
possession of appellant Rahul. A knife was recovered from him by I.O. Vinod
Parmar (PW6), which was produced in evidence as MO-10, but this fact has
been admitted by complainant Arvind Kumar Pandey that MO-10 was not the
knife which was shown to him by appellant Rahul. Even I.O. Vinod Parmar
(PW6) has disputed the identity of MO-10 as the knife recovered from appellant
Rahul. It appears that only on the basis of memorandum of co-appellant Raj @
Ghassu, appellant Rahul has been convicted, because neither his TIP was
conducted nor any item involved in the crime was recovered from him.
Memorandum of co-appellant cannot be the basis to hold appellant Rahul
guilty. Therefore, his conviction for the offence under Section 379 of IPC is set
aside.
14. On the basis of above discussion, appellant Rahul is acquitted of the
offence of Section 379/34 of IPC, while conviction of appellant Raj @ Ghassu
for the offence under Section 379/34 of IPC is upheld. Looking to the nature
and gravity of crime, his sentence of imprisonment is modified to the period
already undergone, while remaining part of the sentence awarded by the trial
Court is upheld.
15. Appellant Rahul @ Sonu Mehra be immediately released from custody,
while appellant Raj Kahar @ Ghassu be also released from custody if the fine
amount has already been paid by him.
16. Let a copy of this judgment be sent to the trial Court alongwith its record
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
rv
