Madhya Pradesh High Court
Suraj Dumar vs The State Of Madhya Pradesh on 6 February, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:7292
1 CRA-191-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF FEBRUARY, 2025
CRIMINAL APPEAL No. 191 of 2024
SURAJ DUMAR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Savita Chaudhary - Advocate for appellants.
Mr. Manoj Kumar Singh - Panel Lawyer for State.
JUDGMENT
With the consent of the parties, the matter is heard finally at motion hearing stage.
This appeal has been preferred by the appellants being aggrieved with the judgment dated 18.12.2023 passed by 27th Additional Sessions Judge, Jabalpur in S.T. No.468 of 2018 by which the appellants have been convicted for an offence punishable under Section 392 read with 34 of the Indian Penal Code and sentenced to undergo R.I. for 05 years with fine amount of Rs.10,000/- with default stipulations of six months additional R.I. to each of the appellant.
2. In nutshell, the prosecution case before the trial Court was that the complainant Mrs. Kalawati Yadav (PW-3) on 27.06.2018 at about 16:45 hours, was lying in courtyard of her house on plank, two boys riding on the motorcycle came in front of her house and one boy sitting as a pillion rider, came in her courtyard and snatched her mangalsutra made up of eight gold Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 2 CRA-191-2024 beads, she cried, her grand-daughter Anita @ Annu (PW-4) saw those boys and the F.I.R. was lodged stating that one of the offender was wearing a yellow colour having black colour check gamcha on his face and wore blue colour jeans and white colour half shirt and the boy who was driving the motorcycle, was having blue colour jeans and red shirt. On the information, F.I.R was registered at the Police Station - Civil Lines, Jabalpur as a Crime No.157 of 2018. Spot map was prepared and one gold bead was recovered from the spot. The appellants were arrested on the same day. Appellant No.1 Suraj Dumar had swallowed the mangalsutra and he was admitted in the hospital where after medical intervention, the mangalsutra was taken out from his body and recovered. Test Identification Parade was conducted by the Tahsildar in his Court room. Identification of the recovered mangalsutra was conducted by the Tahsildar. Motorcycle was recovered from appellant No.2 Ramesh Thapa that was of a stolen motorcycle of Nishant Singh Maravi (PW-11). From the possession of the appellants, the clothes that they wore at the time of incident, were recovered. After investigation, charge- sheet was submitted for the offence punishable under Section 392 of the Indian Penal Code.
3. The trial Court framed the charges under Section 392 in alternative Section 392/34 of the Indian Penal Code and appellants abjured their guilt and prayed for trial.
4. The trial Court examined the prosecution witnesses and examined the appellants under Section 313 of the Code of Criminal Procedure. Appellants had taken the defence that they are innocent and they have falsely Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 3 CRA-191-2024 been implicated in this case but they did not examine any defence witness. After hearing both the parties, the trial Court has passed the impugned judgment, hence this appeal.
5. Learned counsel for the appellants has submitted that the trial Court has wrongly convicted the appellants for the offence punishable under Section 392 of the Indian Penal Code as no injury was caused to any person or any type of threat was given or apprehension was created in the mind of the victim that she will be injured or murdered or shall be wrongfully restraint. Thus, the trial Court has wrongly convicted the appellants.
6. Learned counsel for the appellants has further submitted that the identification parade was not as per the law and prosecution did not examine the Tahsildar who conducted the identification parade and also submitted that appellant No.2 Raju Thapa was the neighbour of the complainant and they were already known to this appellant but at the time of incident, they did not recognize this person and report was lodged against unknown persons. Learned counsel for appellants has further submitted that in test identification parade, Anita @ Annu (PW-4) had identified the accused as she was already acquainted with the appellant and by the identifying the cloths, nothing can be inferred, therefore, the trial Court has wrongly convicted the appellants, hence, this appeal be allowed and the appellants be acquitted from the charges under Sections 392 & 392/34 of the Indian Penal Code.
7. Learned counsel for the State has supported the judgment of the trial Court and has submitted that from the body of Suraj Dumar, the gold Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 4 CRA-191-2024 pendant of mangalsutra was recovered and doctor who had treated the appellant has supported the prosecution case and in sonography there is a clear finding that some foreign article was found in the stomach of the appellant, hence, there is no ground to interfere the conviction regarding the appellant No.1 Suraj Dumar and that stolen article was identified by the complainant. Appellants and their clothes wore at the time of incident, were identified by the witnesses, hence, no scope for interference is made out, therefore, the appeal be dismissed.
8. Heard the parties and perused the record.
9. On the point of theft or loot, it is worth mentioned that to constitute the offence of robbery as per Section 390 of the Indian Penal Code, there are two limbs first, when Theft is robbery and second when the extortion is robbery. This case is not of an extortion. It is a case of theft. To constitute the theft into robbery, it is necessary that if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Thus, to convert the offence from theft to robbery, it is compulsory that the offender voluntary to cause injury or attempt to cause to any person death, or instant hurt, or of wrongful restraint or fear of the above acts.
10. In this case, the complainant Smt. Kalawati Yadav (PW-3) has stated that on the date of incident, she attended a marriage ceremony in his family at Gokalpur and returned at about 10-11 hours. On the next day, she Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 5 CRA-191-2024 was lying in the courtyard of her old house and his daughter Mamta was sleeping in the room. It was about 03:00-03:30, she was sleeping, all of a sudden one person wearing black colour sweater and another one wearing a kurta, came there and snatched the mangalsutra and on riding motorcycle they ran away. She followed them and cried, her grand-daughter Annu (PW-
4) was standing in front of another house, she saw the assailants. Other family members of the complainant also came there and F.I.R. was lodged. This fact is supported by Amit Yadav (PW-2) and Annu Yadav (PW-4) but none of the witnesses has stated that the accused persons or anyone of them, caused the injury to the victim. Though in the statement before the Court, Kalawati Yadav (PW-3) improved her versions and named the accused persons but from the F.I.R., it is clear that when she was sleeping in courtyard of her house, two persons by riding a motorcycle came, one boy was standing on the road on the motorcycle that was in started condition and another boy entered in her courtyard and snatched the mangalsutra that she wore. Thus, it is clear that simple theft was committed as stated above and no ingredients of causing voluntary injury, death or wrongful restraint has been found by the act committed by the appellants or any fear of the acts has been caused by the appellants.
11. On the point that whether the accused persons were involved in the case or not? Pramod Yadav (PW-1) who is the son of complainant and was present at the time of lodging the F.I.R. and he is also the witness of the memorandum and recovery of the stolen property and the motorcycle. On the point of identity of the accused persons, Annu Yadav (PW-4) has clearly Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 6 CRA-191-2024 stated that she had identified the accused Raju Thapa before the Tahsildar and also stated that she identified the cloth/gamcha as per the identification parade (Exhibit-P/12) which was wore by the accused at the time of the offence. She stated that in the month of June, 2018, she came in her grand- mother Kalawati Yadav's house to attend a marriage ceremony at Gokalpur and after attaining the marriage ceremony they returned. At the time of incident, she was standing in the gate of new house i.e. in front of the house where the complainant was lying. She saw that two boys came there on motorcycle and one boy covered his face with gamcha was coming out from her grand-mother's house and after sitting in the motorcycle, both the boys ran away. Both the boys were wearing jeans pant and shirt and when she went towards her grandmother, she narrated that one boy snatched the mangalsutra of her grandmother. The mangalsutra made up of eight gold beads and pendant. On the lengthy cross-examination, nothing has been found to be contradictory.
12. Furthermore, Azad Sahu (PW-5) has stated that in 2018, the Naib Tahsildar Lalmani Satnami conducted the identification parade in room no.69 of Collectorate, Jabalpur and identification memo Exhibit-P/12 was assigned by him.
13. It is submitted that Dr. Rupanshu Mehra (P.W-9), admitted the appellant in the hospital on 27.06.2018 and on 28.06.2018, he was discharged from the hospital. The patient swallowed an article, hence, he was admitted in the hospital. The Gastrologist conducted the endoscopy and that object was removed from the stomach and after that handed over to the Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 7 CRA-191-2024 Police. Discharge card (Exhibit-P/14) is signed by him.
14. Dr. Pankaj Asati (PW-10) has also supported the fact that 28.06.2018, he was posted in the Medical College, Jabalpur as Gastrologist and Suraj Dumar, aged about-20 years whose endoscopy was conducted. The case history was that he swallowed a foreign object and after endoscopy, it was found that in his stomach, there was a mangalsutra that was removed with the help of alligator, forceps and rathnet and was handed over to the Head Constable Kailash Dubey and bed head ticket annexed as Exhibit-P/15.
15. Witness Prashant Awasthi (PW-6) has stated that he sealed the object and handed over to Police Officer. Krishna Kumar Baiga (PW-8) has also supported that he was posted as Ward Boy and police seized the mangalsutra as per exhibit-P/3, thus, Dr. Pankaj Asati (PW-10), Rupanshu Mehra (PW-9), Prashant Awasthi (PW-6), Krishna Kumar Baiga (PW-8) and Dr. Vidhi Uikey (PW-13) have supported that on 27- 28.06.2018, appellant No.1 Suraj Dumar was admitted in the Medical College Jabalpur with the complaint that he has swallowed any foreign object and after endoscopy and with the medical intervention, the mangalsutra was taken out from his stomach and handed over to Police Officer. Statements of the doctors have further supported by Exhibit-P/14, P/15 and P/16. This fact is further supported by Rakesh Patel (PW-12) Retired Sub-Inspector on 28.06.2018, Dr. Prashant Awasthi has submitted him a sealed packet mangalsutra that was taken out from the stomach of the appellant Suraj Dumar.
16. Investigating Officer Arvind Jain (PW-14) has stated that after F.I.R, he visited the spot and searched the spot and one gold bead was found Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 8 CRA-191-2024 and recovered as per Exhibit-P/4. He arrested the appellant No.1 Suraj Dumar and appellant No.2 Raju Thapa and motorcycle was recovered from the possession of appellant No.2 Raju Thapa. It was having two numbers, in front, number plate of MP-20-RR-1376 was fixed and in the back side of motorcycle number plate of MP-20-MW-3041 was fixed. He also recovered the jeans pant, red colour shirt with check grey, colour phone and Rs.170/- and Suraj Dumar has stated that he swallowed the mangalsutra. He sent the appellant for medical examination and treatment. He also recovered the black-orange colour gamcha that appellant Suraj Dumar had covered his face at the time of offence.
17. As per the statement of the witnesses, witness Kalawati (PW-3) and identification memo (Exhibit-P/11), she has identified her mangalsutra.
18. Annu Yadav (PW-4) has stated that she identified the gamcha which was worn by the accused at the time of the incident and also identified the accused as per Exhibit-P/13. As per Exhibit-P/12, before sending to the Judicial Magistrate, identification parade was held regarding the identity of appellant No.2 Raju Thapa and as per Exhibit-P/12, Annu Yadav identified the appellant No.2 Raju Thapa and furthermore, she has also identified the gamcha/scarf by which the appellant has covered his face at the time of the incident. Furthermore, it is also clear that the motorcycle that was recovered from the possession of the appellant No.2 Raju Thapa as per the recovery memo (Exhibit-P/ 6). Exhibit-P/6 was a stolen property as has been clearly stated by Nishant Singh Maravi (P.W-11). Identification Parade is supported by Lalmani Satnami (PW-7).
Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 9 CRA-191-2024
19. In short, it is clear that just after the incident, the accused persons were arrested and accused Raju Thapa was identified and from his possession, a motorcycle used in the offence, was recovered and he has been identified in the Test Identification Parade held by the Executive Magistrate and the scarf/gamcha which was used at the time of offence, was identified and from his body, the stolen property was recovered and identity of the stolen property has been established by Kalawati Yadav (PW-3), hence, it is clear that the appellants have committed the theft on 27.06.2018 at about 04:45 hours and stolen the gold mangalsutra along with locket of the complainant Kalawati Yadav (PW-3) but the offence of Section 392 is not proved.
20. Hence, the trial Court has wrongly convicted the appellants for the offence punishable under Section 392 of the Indian Penal Code that cannot be sustained but with the help of Section 222 of Code of Criminal Procedure, the appellants are convicted for the offence punishable under Section 379 of the Indian Penal Code. The offence punishable under Section 379 of the Indian Penal Code is punishable imprisonment upto 03 years or with fine or with both, hence, their sentence is reduced for offence punishable under Section 379, 379/34 R.I. of two years and the fine amount of Rs.10,000/- each.
21. Hence, their jail sentence is reduced from 05 years R.I. to 02 years rigorous imprisonment against each of the appellant for the above offence of 379 and in alternate 379/34 of the Indian Penal Code and the fine amount imposed by the trial Court is kept intact and in default of depositing the fine Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46 NEUTRAL CITATION NO. 2025:MPHC-JBP:7292 10 CRA-191-2024 amount, each of them will suffer further R.I. of six months.
22. Thus, in short the appeal is partly allowed and their conviction is altered from under Section 392, 392/34 to under Section 379 (379/34) of the Indian Penal Code and their jail sentence is reduced from R.I. of 05 years each to R.I. of 02 years each and the fine amount of Rs.10,000/- each and in default of depositing the fine amount further R.I. of 06 months each.
23. The order of the trial Court regarding the case property is approved.
24. The copy of the judgment along with the record of the trial Court be returned back for information and necessary action.
25. Record of this appeal be consigned to the Record Room.
(DEVNARAYAN MISHRA) JUDGE julie Signature Not Verified Signed by: JULIE SINGH Signing time: 17-02-2025 18:48:46