Madhya Pradesh High Court
Brajesh Singh Rathore & Ors. vs The State Of M.P. on 24 February, 2018
Equivalent citations: AIRONLINE 2018 MP 1429
1
IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE.
SINGLE BENCH: HON'BLE SHRI JUSTICE J.K.MAHESHWARI
CRIMINAL APPEAL NO.214/2004
Brajesh Singh and another
Vs.
State of Madhya Pradesh
_____________________________________________________
Ms. Rekha Shrivastava, learned counsel for the appellants.
Ms. Archana Kher, learned Government Advocate for
respondent/State.
_____________________________________________________
JUDGMENT
(Passed on this 24th day of February, 2018) Being aggrieved by the judgment dated 27.09.2003 passed by the learned Sessions Judge, West Nimad, Mandleshwar in Sessions Trial No.233/2002 convicting the appellants for charge under Sections 392 read with Section 398 of the IPC and directing to undergo the sentence of 5 years R.I. each with fine of Rs.1,000/- each and in default of payment of fine to further undergo three months R.I.each for offence under Section 392 of IPC and 7 years R.I. Each for offence under Section 398 of IPC, this appeal has been preferred.
2. The case of the prosecution in brief is that on the date of incident i.e. 14.06.2002, a report was lodged at Police Chowki Kakadda, Police station Maheshwar interalia contending that a Truck bearing registration No.MH.18-H-1477 driven by PW-1 Soma was going towards Dhamnod loading the goods in the truck and Kailash Bhilala(PW-2) cleaner was also going alongwith Mukesh PW-3. On Dewas bypass all three appellants stopped the truck for lift to go towards Dhamnod for attending the marriage function. They were allowed to sit in the vehicle and as and when the truck reached at Bakaner near the Darga at AB Road, the 2 accused persons told them to stop the truck by the side of the road and showing the knife in his hand asked for the cash which the driver and the cleaner was having. The driver of the vehicle tried to stop the truck coming from the opposite side by giving the headlight, at that time, the accused persons got down from the truck by picking up the steering. The accused Brajesh Singh was caught hold and two accused persons ran away from the spot. FIR was lodged in police Chowki Kakadda, whereupon the offence was registered at Crime No.68/2002 under Section 398 of IPC vide Ex.P-1. After recording the statement of various persons, challan was filed in the competent Court for offence under Section 394 of IPC .
3. The learned trial Court framed charges under Section 392 read with Section 398 of IPC against the appellants who abjured their guilt and taken a plea of false implication on the pretext that when they were going to attend the marriage, a dispute took place with the driver for payment of rent. The learned trial Court in para 16 of the impugned judgment observed that explanation is not available on record, why the steering was picked up by the accused persons and if the buses are available on the said route, why these persons made an attempt to go by the truck. It is also not explained that the three persons were of different places, therefore, considering these presumptions, convictions for charges has been recorded and sentence as described above was directed.
4. Learned counsel appearing on behalf of the appellants extraneously urged that the star witnesses of the case are Soma(PW-1) driver of the truck, Kailash Bhilala (PW-2) cleaner of the truck and Mukesh(PW-3), who was allegedly sitting in the truck. If their testimony recorded by the trial Court is visualized, then, it is apparent that the evidence showing the knife asking 3 money is not available on record, more so, the defence put forth by the accused persons regarding less payment of the rent has also been brought put in defence. In addition, the contents of the FIR is not proved by the Court statement and the statement of three witnesses are full of contradictions and omissions and therefore, it cannot be relied upon to base the conviction. It is further urged that the learned trial Court has also not recorded the cogent findings and relying upon those testimony, infact the trial Court taking presumptions as described above convicted the appellants which is not sustainable in law.
5. On the other hand learned Government Advocate representing the State made an attempt to satisfy this Court relying upon the findings recorded by the learned trial Court and further contended that looking to the statement of the three witnesses in the Court, as well as the contents of the FIR and also the recovery made therefrom the charge under Section 392 and 398 of IPC has rightly been brought at home by the prosecution, therefore, the findings of the fact recorded by the learned trial Court may be maintained and the appellants have rightly been awarded the sentence in the facts of the case.
6. After hearing the learned counsel appearing for the both the parties and on perusal of the testimony of the complainant Soma(PW-1), it reveals that the driver made the truck in neutral gear and the conductor caught hold of Brajesh Singh. It has also come on record that Brajesh Singh has not shown the knife, but as alleged, the knife was on his waist. In para 3 it is stated that Ramesh and Raju ran away while Brajesh Singh was caught hold by them. In para 7 regarding showing of knife, they have admitted that the knife has not been shown in air, to ask the money. The defence was put that when the accused persons made an attempt 4 to stop the vehicle for call of nature, it was not stopped and demanded the money for rent, therefore the said defence was denied. But in their statement so many other omissions have been put which have been admitted. Similar is the testimony of Kailash Bhilala (PW-2) cleaner and Mukesh PW-3. Looking to the testimony of these three witnesses and the allegations as alleged in the FIR, it has not been established by cogent evidence, infact their testimony are not of sterling character to prove the charge against the appellants under Section 392 and 398 of IPC. In the absence of the proving the allegations, the corroborative piece of evidence regarding seizure and other things have no relevance. However, it appears that the learned trial Court merely relying upon the presumptions that why these three persons were found at one place, why they have not picked up the bus, why they caught hold of the steering, all these three presumptions cannot be sufficient to prove the charge under Sections 392 and 398 of IPC, as observed by the trial Court.
7. Considering the aforesaid, the conviction of the appellants as directed by the learned trial Court is not based upon legal evidence brought on record and as such conviction and sentence cannot be allowed to stand.
Accordingly, the appeal succeeds and is hereby allowed. Conviction and sentence of the appellants are set aside. The appellants are on bail therefore, their bail bonds shall stand discharged.
Let the copy of this judgment be sent to the trial Court as well as to the Jail Authorities for communication and compliance.
C.C. as per rules.
(J.K.MAHESHWARI) JUDGE RJ/ Digitally signed by Reena Joseph Date: 2018.03.07 10:39:33 +05'30'