Madhya Pradesh High Court
Somnath Mukherjee vs The State Of Madhya Pradesh on 28 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
1 CRR No. 4429 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28th OF JANUARY, 2025
CRIMINAL REVISION No. 4429 of 2024
SOMNATH MUKHERJEE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Harshit Raghuwanshi - Advocate for applicant.
Shri Ajay Kumar Nirankari - Public Prosecutor for respondent/State.
ORDER
This revision has been listed for admission as well as for consideration of
I.A. No.1899 of 2025 an application for suspension of sentence and grant of bail
moved on behalf of applicant.
2. Before considering the application for suspension of sentence, this Court
thought it appropriate to find out whether this revision is worth admission or not?
Accordingly, counsel for applicant was directed to argue on the question of
admission.
3. This revision has been filed under Section 438 read with Section 442 of
B.N.S.S., 2023, against the judgment of conviction and sentence dated 29.06.2024
passed by II Additional Sessions Judge, Dabra, District Gwalior (M.P.) in
Criminal Appeal No.88/2022 as well as judgment of conviction and sentence
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
dated 09.11.2022 passed by JMFC, Dabra, District Gwalior (M.P.) in RCT
No.571/2016 by which applicant has been convicted under Sections 457 and 380
of IPC and sentenced to undergo RI of one year and a fine of Rs.1,000/- on both
counts with default sentence of simple imprisonment for one month.
4. Prosecution story, in short, is that complainant Rajpal Singh Jaat submitted
a letter dated 13.03.2015 at the Police Outpost which was sent by BSF, Tekanpur
stating that Gurpreet Singh, Deputy Commandant is posted in Special Training
School and is residing along with his family in Sudheer Hostel No.-8, BSF
Academy, Tekanpur. On 21.02.2015, in the afternoon, he went to Punjab along
with his family on leave. While proceeding on leave, he handed over the key of
his room to constable Dhara Singh. On 13.03.2015, at about 12:40 pm, when he
came back to his house i.e. Sudheer Hostel No.-8, BSF Academy, Tekanpur, then
he found that his personal laptop of Compaq Company and a government laptop
of HP company were missing and accordingly on the basis of this complaint,
Crime No.116/2015 was registered at Police Station Dabra for offences
punishable under Sections 457 and 380 of IPC. The stolen laptops were seized
from the possession of applicant. The Police after completing the investigation
filed charge-sheet for offences under Sections 457 and 380 of IPC.
The Trial Court by order dated 22.08.2016 framed the charges for the
aforesaid offences. Applicant abjured his guilt and pleaded not guilty.
Prosecution examined Deepak (PW-1), Sundar Sharma (PW-2), Gurpreet
Singh (PW-3), Rajpal Singh (PW-4), Dhara Singh (PW-5), Harimohan Gupta
(PW-6), Hari Singh Kushwah (PW-7), Jitendra Singh Bhadoriya (PW-8) and
Hukum Singh Gaur (PW-9).
Applicant examined himself as witness in his defence.
The Trial Court by judgment of conviction and sentence dated 09.11.2022
held the applicant guilty of committing offences under Sections 457, 380 of IPC
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
and sentenced him to undergo RI for one year with fine of Rs.1,000/- on both
counts, with default sentence of SI for one month. Both the sentences were
directed to run concurrently.
Being aggrieved by the said judgment, applicant preferred an appeal which
too has been dismissed by the appellate court.
5. Challenging the judgment and sentence passed by Courts below, it is
submitted by counsel for applicant that although two laptops were seized on the
memorandum made by applicant but those laptops were seized from a room of the
house of one Bhadoriya. Bhadoriya has multiple rooms in his house. Therefore, it
is not clear that the room from where the laptops were seized, was in exclusive
possession of applicant. Furthermore, independent witnesses of seizure have
turned hostile.
6. Per contra, it is submitted by counsel for the State that apart from the
present offence, applicant was also tried for five different offences of similar in
nature.
7. In reply, it submitted by counsel for applicant that out of those five cases,
applicant has already been acquitted in four cases whereas he has been convicted
in one case and he has already been granted bail in criminal revision filed by him.
8. Heard learned counsel for parties.
9. Deepak (PW-1) has turned hostile and he has not supported the prosecution
case. Shyam Sundar Sharma (PW-2) was posted as Head Constable and he has
proved the registration of FIR Ex.P-2. Gurpreet Singh (PW-3) is the Deputy
Commandant from whose house, laptops were stolen. He has stated that on
21.02.2015, he went to his hometown at Gurdaspur along with his family on leave
for 15 days. On 13.03.2015, when he came back and went to his house after
taking keys from the security guard, he found that his two laptops including an
official one along with chargers, bags, pen-drives and hard-discs were missing.
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
He enquired from the security guard Dhara Singh but he expressed his ignorance
about the incident. Then he narrated the incident to his senior officer and Staff
Officer and accordingly complaint (Ex.P-3) was sent for lodging FIR. In the
aforesaid complaint, he mentioned number of hard-disc as well as numbers of
both the laptops. Both the laptops were subsequently handed over to him on
supurdgi which were also brought by him in the court. Article A-1 is the laptop
containing Serial No.2CE838893V which is of Compaq Company. Article A-2 is
the government laptop of HP company containing Serial No.2CE0220D3G which
was an ELLTE Book 2730P Make. The chargers of both the laptops are Articles
A-3 and A-4. Both the laptops were stolen from his quarter No.8, Sudheer Hostel,
BSF Academy, Tekanpur. At the time of supurdgi of his personal laptop he had
also produced the receipt. The spot map Ex.P-4 was also prepared. In cross-
examination, he specifically stated that in his complaint name of company as well
as model no. were mentioned and he also stated that although he had not
specifically mentioned that the chargers had also been stolen, but it was
mentioned that laptops along with other articles have been stolen. He admitted
that he personally did not come to police station to lodge the FIR but complaint
Ex.P-3 was sent through his staff member.
10. Rajpal Singh (PW-4), SI, has stated that in the year 2015, he was posted at
BSF Academy, Tekanpur on the post of ASI. He was instructed by Deepak Kumar
Thakur, Deputy Commandant, Staff Officer, to give the complaint at the police
station and accordingly the complaint was given by him at Tekanpur Police
outpost, upon which FIR Ex.P-2 was written.
11. Dhara Singh (PW-5) is the person to whom the key was handed over by
Gurpreet Singh (PW-3). He has stated that when Gurpreet Singh (PW-3) went on
leave, he also went on leave after putting lock in his house. When Deputy
Commandant Gurpreet Singh came back then just few hours prior thereto he had
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
also come back from leave and had found that the house was not locked from
outside. He went inside the house and saw that the house-hold articles were kept
properly but when commandant came back, then he found that his two laptops
were missing. On query by the commandant, he informed that when he came in
the morning he had found that the house was not locked from outside. In the
cross-examination, he admitted that he has not handed over any document to
police to show that he also went on leave. He further admitted that when he found
that the house was open then he did not inform the fact to the senior officer, but
claimed that he had informed the neighbors. He immediately did not inform
Gurpreet Singh as he was on his way and possibility of theft could have caused
inconvenience to him.
12. Harimohan Gupta (PW-6) is the independent witness of seizure and he has
turned hostile. Although he has stated that applicant was arrested vide Arrest
Memo Ex.P-6, but has denied recording of any memorandum. However, he
accepted his signatures on the memo of applicant Ex.P-7. He also denied seizure
of laptops but admitted his signatures on the seizure memo Ex.P-8. In cross-
examination by the Public Prosecutor, he admitted that Ex.P-7 and P-8 contain his
signatures and he also admitted that documents should be signed after going
through the same. He also admitted that Police had not pressurized him to sign the
memorandum Ex.P-7 and Seizure memo Ex.P-8.
13. Hari Singh Kushwah (PW-7) has also turned hostile but he admitted his
signatures on the memorandum Ex.P-7 and arrest memo of applicant Ex.P-6.
14. Jitendra Singh Bhadoriya (PW-8) is the investigating officer. He has stated
that applicant was arrested vide arrest memo Ex.P-6. He was taken into custody
and his memorandum Ex.P-7 was recorded under Section 27 of Evidence Act. On
the basis of information given by applicant, two laptops were seized from the
room belonging to Bhadoriya which was taken by applicant on rent. Seizure
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
memo Ex.P-8 contains his signatures as well as signatures of applicant.
15. Hukum Singh Gaur (PW-9) is the Police Officer who had registered the FIR
Ex.P-9 and had prepared the spot map Ex.P-4 and had also recorded the
statements of witnesses.
16. Applicant has examined himself as DW-1. He has stated that on 13.05.2016
he was going to CSD canteen along with his wife Neetu Mukherjee. On his way
to canteen, Brahmadatt Tiwari, Vijay Pratap Singh and two other constables of
BSF met him and they waylaid him and also snatched his ATM card as well as
pass-book from his wife. On 14.05.2016 and 15.05.2016, total Rs.80000/- were
withdrawn. When he made complaint with regard to snatching of ATM card and
pass-book, Vijay Pratap Singh deposited an amount of Rs.55000/- in his account
and the remaining amount was neither returned nor the pass-book and ATM card
were returned and accordingly on account of enmity, the BSF officers have falsely
implicated him in six different cases, out of which three were registered at Police
Station Aantri and two were registered at Police Station Dabra while one was
registered at Police Station Bilaua. In cross-examination, he admitted that he was
aware of the fact that in case if somebody else withdraws amount from the
account then the account holder can get the account freezed. He denied that he
had not disclosed the PIN to the persons who had snatched the ATM card. He
admitted that he did not try to get the ATM blocked. He further admitted that he
had not produced the video footage of withdrawing the amount by using the ATM
card. He also admitted that he never filed an application for providing video
footage of the person who had withdrawn the amount by using his ATM card. He
denied that the amount was withdrawn by him and his family members and that is
why he did not make any complaint to anyone. He admitted that he did not make
any written complaint to anyone with regard to his beating. He claimed that
nothing was seized from his possession but admitted that seizure memo Ex.P-8
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
contains his signatures. He admitted that at the time of incident he was residing in
the rented house. He denied for want of knowledge that landlord of the house was
Dinesh Bhadoriya. He denied that he had committed theft in BSF School,
Tekanpur along with his brother-in-law.
17. Thus, it is clear that applicant himself has admitted that he was residing in
the room on rent. On memorandum made by applicant, two laptops were seized
from the room in which he was residing as a tenant. The seizure memo contains
all the minor details of the laptops including serial numbers as well as book
numbers. Deputy Commandant- Gurpreet Singh has also clearly deposed about
the serial number and book number of the stolen laptops. The stolen laptops were
also identified Gurpreet Singh (PW-3) as Article A-1 and Article A-2 and chargers
were identified as Article A-3 and Article A-4. So far as the fact that the
independent witnesses of seizure have turned hostile is concerned, this Court is of
considered opinion that this fact by itself is not sufficient to discard the evidence
of police officer Jitendra Singh Bhadoriya (PW-8). It is well established principle
of law that evidence of police officer cannot be discarded merely on account of
his official status.
18. The Supreme Court in the case of State, Govt. of NCT of Delhi v. Sunil,
reported in (2001) 1 SCC 652 has held as under :
20. Hence it is a fallacious impression that when recovery is effected
pursuant to any statement made by the accused the document
prepared by the investigating officer contemporaneous with such
recovery must necessarily be attested by the independent witnesses.
Of course, if any such statement leads to recovery of any article it is
open to the investigating officer to take the signature of any person
present at that time, on the document prepared for such recovery. But
if no witness was present or if no person had agreed to affix his
signature on the document, it is difficult to lay down, as a proposition
of law, that the document so prepared by the police officer must be
treated as tainted and the recovery evidence unreliable. The court has
to consider the evidence of the investigating officer who deposed to
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
the fact of recovery based on the statement elicited from the accused
on its own worth.
21. We feel that it is an archaic notion that actions of the police
officer should be approached with initial distrust. We are aware that
such a notion was lavishly entertained during the British period and
policemen also knew about it. Its hangover persisted during post-
independent years but it is time now to start placing at least initial
trust on the actions and the documents made by the police. At any
rate, the court cannot start with the presumption that the police
records are untrustworthy. As a proposition of law the presumption
should be the other way around. That official acts of the police have
been regularly performed is a wise principle of presumption and
recognised even by the legislature. Hence when a police officer gives
evidence in court that a certain article was recovered by him on the
strength of the statement made by the accused it is open to the court
to believe the version to be correct if it is not otherwise shown to be
unreliable. It is for the accused, through cross-examination of
witnesses or through any other materials, to show that the evidence of
the police officer is either unreliable or at least unsafe to be acted
upon in a particular case. If the court has any good reason to suspect
the truthfulness of such records of the police the court could certainly
take into account the fact that no other independent person was
present at the time of recovery. But it is not a legally approvable
procedure to presume the police action as unreliable to start with, nor
to jettison such action merely for the reason that police did not collect
signatures of independent persons in the documents made
contemporaneous with such actions.
19. The Supreme Court in the case of Praveen Kumar Vs. State of
Karnataka reported in (2003) 12 SCC 199 has held as under :
21. Section 27 does not lay down that the statement made to a
police officer should always be in the presence of independent
witnesses. Normally, in cases where the evidence led by the
prosecution as to a fact depends solely on the police witnesses, the
courts seek corroboration as a matter of caution and not as a matter of
rule. Thus, it is only a rule of prudence which makes the court to seek
corroboration from an independent source, in such cases while
assessing the evidence of the police. But in cases where the court is
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
satisfied that the evidence of the police can be independently relied
upon then in such cases there is no prohibition in law that the same
cannot be accepted without independent corroboration.
20. The Supreme Court in the case of Yakub Abdul RazakMemon v. State of
Maharashtra, reported in (2013) 13 SCC 1 has held as under :
1737. Shri Mukul Rohatgi, learned Senior Counsel appearing for the
appellant has submitted that two panch witnesses were there, whereas
one has been examined i.e. Suresh Satam (PW 37). His evidence
cannot be relied upon for the reason that he was the brother of a
Police Constable and thus, cannot be termed as an independent
witness. Factually, it is true that the panch witness Suresh Satam (PW
37) himself has admitted that his brother was an employee of the
Police Department of Maharashtra. Further, merely having such a
relationship does not make him disqualified to be a panch witness, nor
his evidence required to be ignored. In Kalpnath Rai, this Court has
held that the evidence of police officials can be held to be worthy of
acceptance even if no independent witness has been examined. In
such a fact situation, a duty is cast on the court to adopt greater care
while scrutinising the evidence of the police official. If the evidence
of the police official is found acceptable it would be an erroneous
proposition that the court must reject the prosecution version solely
on the ground that no independent witness was examined. (See also
Paras Ram v. State of Haryana, Pradeep Narayan Madgaonkar v.
State of Maharashtra, Sama Alana Abdulla v. State of Gujarat, Anil v.
State of Maharashtra, Tahir v. State (Delhi), and Balbir Singh v.
State.)
21. Furthermore, the independent witnesses of seizure have admitted their
signatures on the seizure memo, Ex.P-8.
22. It is well established principle of law that this Court in exercise of power
under Section 397, 401 of Cr.P.C. cannot interfere with the concurrent findings of
fact recorded by courts below unless and until they are found to be perverse. This
Court has also considered the evidence led by the prosecution as well as the
arguments raised by applicant. This Court does not find any perversity in the
concurrent findings of fact recorded by the courts below. Seizure of laptops from
NEUTRAL CITATION NO. 2025:MPHC-GWL:1971
the possession of applicant has been duly proved.
23. Under these circumstances, this Court is of considered opinion that no case
is made out for admission of this revision. Accordingly, judgment dated
29.06.2024 passed by II Additional Sessions Judge, Dabra, District Gwalior
(M.P.) in Criminal Appeal No.88/2022 as well as judgment dated 09.11.2022
passed by JMFC, Dabra, District Gwalior (M.P.) in RCT No.571/2016 are hereby
affirmed.
24. Revision is dismissed in limine. As a consequence thereof, IA.
No.1899/2025 is also hereby dismissed.
25. The applicant is in jail. He shall undergo the remaining jail sentence.
(G.S. Ahluwalia)
Judge
(and)
