Madhya Pradesh High Court
Akhlesh vs The State Of Madhya Pradesh on 27 July, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.1596/2009
Akhlesh
VERSUS
State of Madhya Pradesh
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Shri Sharad Verma, counsel for the appellant.
Shri G.S.Thakur, Panel Lawyer for the State/respondent.
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J U D G M E N T
(Delivered on the 27th day of July, 2012) The appellant has preferred this appeal against the judgment dated 17.8.2009 passed by Third Additional Sessions Judge, Sagar in S.T.No.67/2009, whereby the appellant was convicted for offence punishable under section 392 of IPC and sentenced for 10 years' rigorous imprisonment with fine of Rs.5,000/-. In default of payment of fine, the appellant was to undergo for 6 months' additional rigorous imprisonment.
2. Prosecution's case, in short, is that, on 25.5.2008, Subodh Kumar Jain (P.W.4) along with his wife Savita Jain (P.W.6) and daughter Ku.Shraddha Jain (P.W.3) went to visit an exhibition. Shri Subodh Kumar Jain was driving a
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Criminal Appeal No.1596 of 2009 motor-cycle and his son was his pillion rider, whereas Smt. Savita Jain was driving a scooty and Ku.Shraddha Jain was her pillion rider on that scooty. At about 11 p.m. in the night when they were coming back from the exhibition, they crossed Sanjay lodge in the way and thereafter, two persons came on a motor-cycle who over took the scooty and one of them snatched the golden chain of Shraddha Jain from her neck. On her shouting, Subodh Kumar Jain tried to chase those persons but, he could not get them. Shraddha Jain was taken to the Police Station Kotwali, District Sagar where she has lodged an FIR, Ex.P/2. After sometime, the appellant Akhlesh Yadav was arrested on 9.9.2008. In interrogation, the appellant told that snatched chain was kept by him with one Brijesh but, chain could not be recovered. Co-accused Suraj Kunjar was also arrested but, robbed property could not be seized. Identification parade was arranged against the accused persons. Subodh Kumar Jain could not identify anyone, whereas Smt. Savita Jain identified the appellant Akhlesh. Naib Tahsildar Shri S.D. Shrivastava (P.W.1) had prepared the identification memo, Ex.P/1. After due investigation, a charge-sheet was filed before the JMFC, Sagar, who committed the case to the Sessions Court, Sagar and ultimately, it was transferred to the Third Additional Sessions Judge, Sagar.
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3. The appellant abjured his guilt. He has simply stated that he was falsely implicated but, no defence evidence was adduced from the side of the appellant.
4. After considering the evidence adduced by the prosecution, learned Third Additional Sessions Judge, Sagar convicted the appellant for offence punishable under section 392 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellant submits that the appellant is falsely implicated in the matter. No golden chain could be recovered from the appellant. Witness Subodh Kumar Jain could not identify the appellant and therefore, his memo relating to the test identification parade was not admissible. The appellant was shown to other witnesses and thereafter, the test identification parade was arranged and therefore, such identification parade was arranged with delay of at least 11 weeks. Therefore, that identification memo cannot be relied upon and the appellant cannot be convicted for any offence. Learned counsel for the appellant has placed his reliance upon the judgment passed by this Court in case of "Daulat Singh Vs. State of Madhya Pradesh", [(2006) (1) MPLJ 615] and judgment passed by Hon'ble the Apex Court in case of "Budhsen and another Vs. State of Uttar Pradesh", [AIR 1970 SC 1321]. In
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Criminal Appeal No.1596 of 2009 alternate, it is submitted that the appellant remained in the custody for more than 3 years and therefore, his jail sentence may be reduced to the period, which he has already undergone in the custody.
7. On the other hand learned Panel Lawyer has submitted that conviction and sentence directed by the trial Court appears to be correct and no interference can be done in the judgment passed by the trial Court.
8. After considering the submissions made by learned counsel for the parties and considering the prosecution evidence, it is to be considered that whether the appellant was the person, who robbed the golden chain from the neck of the victim Shraddha Jain? Whether the appellant could be convicted for offence punishable under section 392 of IPC? And whether the sentence imposed upon the appellant can be reduced?
9. In the present case, the culprit was not known either to Subodh Kumar Jain, Savita Jain or Shraddha Jain and therefore, no named FIR was lodged against the appellant. However, looking to the statements of these witnesses, it is established that one motorcyclist snatched the chain of Ku. Shraddha Jain from her neck and a robbery took place with her.
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10. The police has recorded one memo under section 27 of the Evidence Act to the version given by the appellant but, since no seizure took place in consequence of that memo therefore, that memo is inadmissible under section 24 of the Evidence Act. Under such circumstances, the only evidence remains against the appellant is that he was identified by Smt. Savita Jain.
11. Naib Tahsildar Shri S.D.Shrivastava (P.W.1) and Smt. Savita Jain have proved the identification parade memo, Ex.P/1. Smt. Savita Jain has stated that she could identify the appellant amongst so many persons standing in a row in the jail and she kept her hand over the head of the appellant to identify him. She has also stated in the cross- examination that she had seen the culprit at the time when he was leaving the spot by a motorcycle. Naib Tahsildar Shri Shrivastava has mentioned about the entire procedure of identification and there is no much ambiguity visible in the procedure adopted by Shri Shrivastava. However, 2-3 lacunae remains in the case.
12. Identification memo is also available on record in which Shri Subodh Kumar Jain could not identify the appellant. He has accepted that he was slightly ahead of the scooty of Smt. Savita Jain and therefore, he tried to chase that motorcycle but, he could not catch the culprit. Under
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Criminal Appeal No.1596 of 2009 such circumstances, Shri Subodh Kumar Jain had seen the culprit from back and therefore, it is natural that he could not identify the appellant. Same situation was there with Smt. Savita Jain. She has accepted that she was driving the scooty and her daughter Shraddha Jain was the pillion rider therefore, it was easy for Shraddha Jain to identify the culprit but, it is surprising that no test identification parade has been arranged for the identification of the appellant by Shraddha Jain or no such identification memo is produced before the Court. Smt. Savita Jain was also driving a scooty and her attention must be on the road. Therefore, when the culprit over took her vehicle, after snatching the chain, she was not in a position, so that she could see the face of the culprit and therefore, it is possible that her identification may be a fluke.
13. Most important lacuna in the prosecution case is that the appellant was arrested on 9.9.2008 and no test identification parade was arranged upto 1.12.2008. Under such circumstances, a delay of 11 weeks was caused in arranging the test identification parade. Investigation officer Shri Kripal Marco (P.W.7) could not tell about the reason as to why the identification parade was arranged with delay of more than 2½ months. He simply said that he was searching for Brijesh but, such searching did not prevent the
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Criminal Appeal No.1596 of 2009 I.O. to arrange the test identification parade, that could not be a cause for delay in test identification parade. Most important fact is that a judicial remand was obtained on 3.10.2008 with an application on which the photos of both the accused persons were affixed, therefore, the witness Smt. Savita Jain had a lot of opportunity to see the photo of the appellant and therefore, when test identification parade took place, after 2 months of that remand application, she could identify the appellant in the test identification parade on the basis of photos.
14. Under such circumstances, when there is no identification parade arranged for the victim Shraddha Jain, Smt. Savita Jain had lesser opportunity to see the face of the culprit at the time of incident and test identification parade was arranged after 11 weeks and Savita Jain had an opportunity to see the appellant or his photograph. Under such circumstances, the identification parade arranged by Naib Tahsildar Shri Shrivastava comes in the clouds of doubt and by only evidence of that test identification parade, the appellant could not be convicted. In the light of aforesaid judgment passed by Hon'ble the Apex Court in case of Budhsen (Supra) and judgment passed by Single Bench of this Court in case of Daulat Singh (Supra), delayed identification parade cannot be believed beyond doubt.
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15. Under such circumstances, it is not at all proved that the appellant was the person, who snatched the golden chain of the victim Shraddha Jain. There was no named FIR. There was no seizure from the appellant of the robbed property. Test identification parade is doubtful. No test identification parade was arranged for the complainant Shraddha Jain therefore, there is no cognate evidence by which the appellant can be convicted for offence punishable under section 392 of IPC. If a doubt is created in the prosecution evidence then, it is the accused who shall get the benefit of doubt. Under such circumstances, the appellant cannot be convicted for offence punishable under section 392 of IPC. Learned Additional Sessions Judge has erred in convicting the appellant for the said offence.
16. On the basis of the aforesaid discussion, appeal filed by the appellant appears to be acceptable and hence, it is accepted. Conviction as well as sentence directed against the appellant for offence punishable under section 392 of IPC is hereby set aside. He is acquitted from the said charge.
17. Office is directed to issue a release warrant in favour of the appellant forthwith.
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18. Copy of the judgment be sent to the trial Court with its record for information.
(N.K.GUPTA) JUDGE 27/7/2012 Pushpendra