Arvind vs The State Of Madhya Pradesh on 14 February, 2020

[Cites 7, Cited by 0]

Madhya Pradesh High Court

Arvind vs The State Of Madhya Pradesh on 14 February, 2020

Bench: Shailendra Shukla

                                   1
  HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
               CRIMINAL APPEAL NO.8877 OF 2019
                   (Ravi vs State of Madhya Pradesh)
               CRIMINAL APPEAL NO.9801 OF 2019
                  (Arvind vs State of Madhya Pradesh)
              CRIMINAL APPEAL NO.10447 OF 2019
            (Deepak @ Majbut vs State of Madhya Pradesh)

Indore, Dated 14.02.2020
        Mr. Gulab Sharma, learned counsel for the appellant-Ravi
in Criminal Appeal No.8877 of 2019.
        Mr. R.S. Parmar, learned counsel for the appellant-Arvind
in Criminal Appeal No.9801 of 2019.
        Mr. R.S. Parmar, learned counsel for the appellant-
Deepak @ Majbut in Criminal Appeal No.10447 of 2019.
        Mr. Anil Ojha, learned public prosecutor for the
respondent/State.
        Arguments heard.
                                ORDER

Submissions were made on IA No.10467/2019, IA No.941/2020 and IA No.940/2020 which is an application under Section 389 of Code of Criminal Procedure, 1973 respectively filed on behalf of the appellants namely; -Ravi S/o Gajraj Meena, Arvind S/o Gappulal Meena and Deepak @ Majbut S/o Mishrilal Meena, who have been convicted and sentenced by the 2nd Additional Sessions Judge, Biaora, District Rajgarh vide its judgement dated 26.02.2019 passed in S. T. No.361/2017 whereby each of the appellants have been sentenced as under:

    S.   Conviction                       Sentence
    No. under Section
                          Imprisonment Fine Amount        Imprison
                                                        -ment in lieu of
                                                             fine
    1      394 of IPC      10 years RI   Rs.5,000/-        30 days
                                                        imprisonment
                               2

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.8877 OF 2019 (Ravi vs State of Madhya Pradesh) CRIMINAL APPEAL NO.9801 OF 2019 (Arvind vs State of Madhya Pradesh) CRIMINAL APPEAL NO.10447 OF 2019 (Deepak @ Majbut vs State of Madhya Pradesh) The prosecution story in short was that on 18.07.2018, a report was lodged by the complainant Rakesh that on 17.07.2018 at about 4.00 PM, he was waiting for a customer in taxi stand at Kota along with his Bolero vehicle bearing registration No.RJ 20 UA 7018. At that point of time, three unknown persons came and asked to take them to Binaganj. The deal was struck and on demand of ID by the complainant, one of them namely, Mithun handed over his Aadhar Card, zerox copy of which was taken by the complainant and gave to his friend Kuldeep, who is also a taxi driver. The complainant started of for Binaganj along with three unknown persons. They reached Binaganj at about 10.30 PM and took dinner in dhaba at Binaganj and all the three persons slept in the dhaba whereas, the complainant slept in the Bolero vehicle. The next day at about 7.00 AM, these persons asked the complainant to take them to a temple of Lord Shiva. While Mithun stayed back at the dhaba, another person boarded the vehicle and the complainant took them to the temple. While returning, they asked the complainant to stop at Luhari village and as they neared the village, the complainant was asked to stop his vehicle and as soon as he stopped the same, a passenger sitting on the back-seat threw red chilli power in the eyes of 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.8877 OF 2019 (Ravi vs State of Madhya Pradesh) CRIMINAL APPEAL NO.9801 OF 2019 (Arvind vs State of Madhya Pradesh) CRIMINAL APPEAL NO.10447 OF 2019 (Deepak @ Majbut vs State of Madhya Pradesh) the complainant and all three passengers then got down and the complainant was thrown to the ground and they tried to snatch the mobile and purse of the complainant. When the complainant shouted, one of them drew out a firearm and snatched the purse and all three persons thereafter made of in the Bolero vehicle of the complainant.

The report was lodged in the name of unknown persons. The investigation ensued and the accused were apprehended. The Bolero vehicle was seized on the basis of memorandum of accused Mithun, 0.315 bore firearm and a micro-max company mobile was seized as per the information given by Ravi, a leather purse was seized from the possession of Deepak and the registration number plate was seized as per the information provided by Arvind.

After trial, appellants have been convicted identically under the provision of Section 394 of IPC.

Learned counsel for the appellants submits that no test identification parade was carried out, that appellants were identified in the dock identification parade, that mobile seized from the appellants have not been proven to be that belonging to the complainant and that dock identification parade is a weak piece of evidence in itself. He further submits that this is a case of no evidence and suspension of jail sentence has been sought on the aforesaid ground.

Learned public prosecutor for the respondent/State submits that the evidence of complainant is unimpeachable and conclusion of conviction is proper.

Considered the submissions and perused the record. The complainant in his examination-in-chief has stated that he recognizes the appellants and other co-accused persons and it is these persons who had accompanied him from Kota to Binaganj, when they slept in the night at Binaganj and in the morning, it was these persons who took him to a temple and thereafter stop the vehicle and one of them put red chilli powder in his eyes and he was dragged out and the accused escaped with the Bolero vehicle.

In his cross-examination, he states in para-8 that he had named each of the appellants by name in FIR, however the FIR Ex.P/2 is in the name of unknown person. The evidence of complainant has been recorded more than a year after the incident and no test identification parade was 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.8877 OF 2019 (Ravi vs State of Madhya Pradesh) CRIMINAL APPEAL NO.9801 OF 2019 (Arvind vs State of Madhya Pradesh) CRIMINAL APPEAL NO.10447 OF 2019 (Deepak @ Majbut vs State of Madhya Pradesh) carried out when the FIR is registered against the unknown persons and it was important to carried out the test identification parade. The Dock identification can of-course be the basis for conviction, however for doing so the evidence of complainant needs to be unimpeachable and the prosecution should also show that there are no lapses in the investigation. The complainant states that one of the accused had put red chilli powder in his eyes and he felt burning sensation in the eyes. However, the Investigating Officer (IO) Mr. Siniya Sengar (PW/16) in para 18 admits that eyes of the complainant looked normal. The prosecution has not examined the Doctor who conducted the MLC of complainant. A perusal of such MLC which is placed on record, though not exhibited shows no injury to the eyes. The complainant states that his purse was also looted but the purse which was shown to be seized from the accused- Deepak has not been shown to the complainant and no test identification of the purse has been conducted. Thus, it cannot be stated that purse is belonging to accused-Deepak. As against accused-Ravi, the accusation was that he had pointed out Katta at complainant. However, the complainant Rakesh Meena (PW/3) in para 11 of his cross-examination he states that he does not know as to which of the accused has pointed Katta at him. Katta (fire-arm) has been shown to 6 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.8877 OF 2019 (Ravi vs State of Madhya Pradesh) CRIMINAL APPEAL NO.9801 OF 2019 (Arvind vs State of Madhya Pradesh) CRIMINAL APPEAL NO.10447 OF 2019 (Deepak @ Majbut vs State of Madhya Pradesh) be seized from accused-Ravi. As per Ex.P/16, however it is seen that accused-Ravi was arrested at 10:40 pm on 21.07.2017 but there is no mention of any such fire arm in column 8 of the arrest memo. Further registration plate of the vehicle in question (Bolero vehicle) has been shown to be seized from the accused-Arvind on the basis of his memorandum from near a babool tree. The witness Mr. P.C. Lot (PW/14) who has recorded the memorandum of accused-Arvind as per Ex.P/21 and thereafter seized the registration plate of the vehicle in question. As per Ex.P/22, he admits that the place from where the seizure was made is accessible to all and it was lying in the open place. There is one more discrepancy which is that in memorandum Ex.P/21, it has been mentioned that number plate of the vehicle was dug in besides a babool tree. As against such statement, it was found lying in the open place and witness Mr. P.C. Lot (PW/14) admits that the registration plate of the vehicle was not dug out and recovered, thus there was no discovery of number plate on the basis of such memorandum.

In view of above lapses and mainly the submissions made by learned counsel for the appellants, without expressing any opinion on merits of the case, the applications- IA No.10467/2019, IA No.941/2020 and IA No.940/2020 are 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.8877 OF 2019 (Ravi vs State of Madhya Pradesh) CRIMINAL APPEAL NO.9801 OF 2019 (Arvind vs State of Madhya Pradesh) CRIMINAL APPEAL NO.10447 OF 2019 (Deepak @ Majbut vs State of Madhya Pradesh) being allowed. The substantive jail sentence of the appellants- Ravi, Arvind and Deepak @ Majbut are being suspended subject to their depositing the fine amount (if not already deposited) and on furnishing a personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand) each with one solvent surety each in the like amount to the satisfaction of the trial Court for their appearance before the Registry of this Court on 21.04.2020 and on all other subsequent dates as may be fixed by the Registry in this behalf.

Accordingly, IA No.10467/2019, IA No.941/2020 and IA No.940/2020 stands disposed of.

List the appeals for final hearing in due course. Certified copy as per Rules.





                                                 (SHAILENDRA SHUKLA)
 Arun/-                                                 JUDGE


Digitally signed by ARUN
NAIR
Date: 2020.02.18 09:24:10
+05'30'

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