Madhya Pradesh High Court
Jittu Alias Jitendra vs The State Of Madhya Pradesh on 29 June, 2019
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HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.1455/2015
Jittu @ Jitendra
-Versus-
State of Madhya Pradesh
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Single Bench : Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri Madan Singh, learned counsel for the appellant.
Shri C.B. Singh, learned Government Advocate, for the
Respondent/State
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Whether approved fore reporting? : No
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JUDGMENT
(Jabalpur dt.: 29.06.2019) Instant appeal is filed under Section 374(2) of the Code of Criminal Procedure, challenging the order of conviction and sentence dated 26.03.2015, passed by the learned Third Additional Sessions Judge, Damoh in S.T.No. 340/2011, whereby the appellant has been convicted and sentenced as under:-
Conviction U/s Sentence 450 of I.P.C. Rigorous Imprisonment for 10 (ten) years & fine of Rs.500/-.
In default of payment of fine additional Rigorous Imprisonment for one year.
328 of I.P.C. Rigorous Imprisonment for 10 (ten) years & fine of Rs.500/-.
In default of payment of fine additional Rigorous Imprisonment for one year.
394 of I.P.C. Rigorous Imprisonment for 10 (ten) years & fine of Rs.500/-.
In default of payment of fine additional Rigorous Imprisonment for one year.
All the sentences shall run concurrently.
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2. The prosecution story, in short, is that the complainant Rajdhar Vishwakarma lodged a report on 02.09.2011 in the Police Station Batiyagarh and stated that on 31.08.2011 one Kamlesh Vishwakarma son of his brother-in- law and the present appellant came to his house and stayed there. Thereafter, on 01.09.2011 they went to the temple of Hanumat Ghati and returned to the house. However, thereafter, they had offered some sweet stating it to be "Prasad" to them and after consuming it they became unconscious. On the next day, their neighbor took them to the hospital and when they came back to their house, they found that gold and silver ornaments were missing from the house which were worth Rs.80,000/-.
3. After registration of the offence the investigation was set in motion by Shri R.K. Shukla (PW-8) who was posted as Assistant Sub-Inspector in police station Batiyagarh. The accused Kamlesh @ Amlesh was arrested on 15.09.2011 and on his memorandum, a pair of gold bangle was recovered. Other ornaments were also recovered, vide Ex. P-4.
4. The present appellant Jittu @ Jitendra was arrested by Shri Pradeep Soni (PW-12) who was posted as In-charge of Police Station Tejgarh in connection with Crime No. 194/2012. 3 After his arrest, he has disclosed about the ornaments robbed from the house of the present complainant Rajdhar Vishwakarma and on his memorandum, Ex.P-12 the articles were seized vide Ex.P-13. Thus, the articles contained in the said memorandum, Ex.P-13 from Article B to Article G were identified by the complainant Rajdhar Vishwakarma (PW-2) and his wife Geeta Bai (PW-10).
5. Learned counsel for the appellant argued that so far as present appellant is concerned, he was not identified and there was no seizure from him, therefore, the conviction is unsustainable. He also argued that, in case his appeal does not succeed on merit, the same may be entertained on the ground of sentence as the appellant has already undergone substantial jail sentence. It is further submitted by him that the appellant was arrested in two other cases and was convicted in those cases and this Court has already allowed the appeal in part and the sentence has been modified to the period already undergone. In support of his arguments, he placed reliance on the order dated 10.10.2018 passed in CRA No. 4167/2018 (Jittu @ Jitendra @ Mangal Baba Vs. The State of M.P.).
6. Per-contra, learned Government Advocate for the State submits that there is no illegality in the order of sentence. 4 The order is passed after taking into consideration the entire evidence. It is further submitted that the appellant and other co-accused were enjoying the hospitality of the complainant and thereafter, offered some sweets to the complainant and his wife who became unconscious and thereafter committed the offence of robbery and house tracepass and, therefore, the appeal is liable to be dismissed.
7. After having heard, the learned counsel appearing for the parties, I do not find any merit in the submission advanced on behalf of the appellant so far conviction is concerned.
8. The prosecution has successfully proved its case beyond reasonable doubt. The complainant Rajdhar Vishwakarma (PW-2) has clearly deposed that the co-accused Kamlesh @ Amlesh is the son of his brother-in-law and the present appellant Jittu @ Jitendra is his friend, both had come to his house and stayed there and thereafter, they went to Hanumat Ghati Temple and both of them came back to his house in the night. Kamlesh @ Amlesh had offered some sweet to him and also to his wife and after consuming the same, both of them became unconscious. When they reached at the stage of consciousness after about 48 hours, they found that the ornaments kept in the house were missing.
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9. Another witness Geeta Bai (PW-10) also narrated the same version and stated that Kamlesh is the son of her sister and he had come alongwith the present appellant to her house. They stayed in her house and went to the temple of Hanumat Ghati after taking breakfast. They came back in the night and offered some sweets. After consuming the sweets, they became unconscious and after treatment in the hospital they became conscious. When they returned to the house, they found that the ornaments were stolen from the house.
10. Report was lodged at Police Station concerned and the investigation was carried out by R.K. Shukla (PW-8). He arrested the accused Kamlesh @ Amlesh and on his memorendum, her ornaments (gold bangles) were seized, which were duly proved by the prosecution. The articles seized, vide Ex.P-4, were identified by the complainant Rajdhar Vishwakarma.
11. The present appellant was also an accused of the another Crime No. 194/2012 registered at the Police Station Tejgarh. He was arrested by Shri Pradeep Soni (PW-12) and on his memorandum certain ornaments were seized. He stated that the aforesaid ornaments were stolen from the house of the complainant. The seized articles were identified by the 6 complainant Rajdhar Vishwakarma (PW-2) and Geeta Bai (PW-
10), thus the prosecution has successfully established its case beyond any doubt.
12. In view of the aforesaid, I do not find any case for interference in appellate jurisdiction with the order of conviction. In regard to other submission of the learned counsel for the appellant that the appellant has already undergone substantial jail sentence, the said aspect was also got verified by the learned Government Advocate for the respondent/State. It is not in dispute that the present appellant Jittu @ Jitendra remained in jail from 09.01.2013 to 29.04.2014 during the trial. Thereafter, he was in jail since 26.03.2015 till date. In the other appeal CRA No. 4167/2018 filed by the present appellant, where the appellant was convicted for offence punishable under Section 394 IPC and sentenced to undergo R.I. for three years alongwith fine of Rs.5000/- with default stipulation. The Court after taking into consideration the conviction in the present case and the other facts, has allowed the appeal in part on sentence. Taking into account the period of sentence already undergone by the present appellant, I am of the considered view that that appellant has already undergone substantial jail sentence during course of trial and during pendency of the present appeal and therefore, the appeal is partly allowed on 7 the ground of sentence only. The sentence of the appellant under Section 450, 328 & 394 of IPC is reduced to the period of jail sentence already undergone by the present appellant, but the order of conviction and fine is maintained.
13. In view of the aforesaid assimilation of entire facts and evidence, the present appeal is partly allowed on the question of sentence only. The appellant be set at liberty forthwith, if not wanted any other case.
(VIJAY KUMAR SHUKLA) JUDGE Amitabh Digitally signed by AMITABH RANJAN Date: 2019.07.07 21:43:38 -07'00'