Madhya Pradesh High Court
Ashfaque Khan vs The State Of Madhya Pradesh on 24 January, 2018
Criminal Appeal. No.6398/2017
JABALPUR Dated : 24.01.2018
Shri A. Usmani, Advocate for the appellant.
Shri V.S. Mishra, Dy. Government Advocate for the
respondent/State.
Heard on admission.
Admit.
Also heard on I.A. No.26436/2017, an application for suspension of the sentence of appellant Ashfaque Khan.
The appellant has preferred this application against the judgment dated 13/12/2017 passed by the IIIrd Additional Sessions Judge, Raisen, Link Court, Bareli, Distt. Raisen in S.T. No.83/2017, whereby he has been convicted for the offences punishable under Sections 395 and 397 of the IPC and sentenced to undergo R.I. for 7 years and 7 years and to pay fine of Rs.5,000/- and Rs.10,000/- respectively with default stipulation.
As per prosecution case, on 5/11/2016 at 1.50 p.m., appellant and other co-accused persons entered into the Court premises, Bareli and assaulted watchman Madan and looted seven mobiles after breaking the lock of the Court's malkhana.
Learned counsel for the appellant submitted that he is innocent and has false been implicated in the case. Madan did not identify the appellant and only on the basis of seizure of one mobile, learned trial Court without appreciating the evidence properly, wrongly convicted the appellant for the aforesaid offence.
In this regard, learned counsel for the appellant placed reliance on the judgment passed by Hon'ble Apex Court's in the case of State of Rajasthan vs. Talevar, AIR 2011 SC 2271 in which the Apex Court observed as under :-
"Thus, the law on this issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof".
He further submitted that the appellant is in custody since the date of judgment i.e. 13.12.2017. Hence prayed for suspension of the jail sentence and release of the appellant on bail since the hearing of this appeal is likely to take long time.
On the other hand, learned counsel for the State opposed the prayer and submitted that from the prosecution evidence the guilt of the appellant is proved beyond reasonable doubt, therefore, learned trial Court has rightly found appellants guilty for the aforesaid offence.
From the statement of Madan, it appears that on 05/11/2016 at about 1.50 p.m. 5 to 6 persons entered into the Tahsil Court premises, Bareli and assaulted Chowkidar Madan and after breaking lock of Court's malkhana, looted seven mobiles. From the statement of Sajjan Singh (PW/13), investigating officer and other prosecution evidence it appears that one mobile out of the looted property was seized from the possession of the appellant on the instance of the appellant, which was concealed by him in a pit and did not give any explanation regarding seizure of that property.
The facts of the case i.e. State of Rajasthan vs. Talevar (supra) relied by the learned counsel of the applicant do not match with the instant case. In that case Hon'ble Apex Court held that "it is not safe to draw an inference that the person in possession of the stolen property had committed the murder" while in the instant case, learned trial Court did not draw the inference on the basis of seizure of stolen property that the applicant had committed the murder. It only drew the inference that the applicant had committed the loot. So that judgment does not help the appellant much.
Although, in the instant case the stolen articles were such as likely to pass readily from hand to hand. But in the case there was no lapse of time between the date of his arrest and the recovery of the stolen property. The applicant had no satisfactory explanation to offer for his possession thereof. On the contrary, he denied that the stolen property was recovered by him. The false denial by itself is an incriminating circumstance. So, looking to the prosecution evidence, this Court is not inclined to suspend the sentence of the appellant. Hence, the application is dismissed.
List for final hearing in due course.
(Rajeev Kumar Dubey) Judge m/-
Digitally signed by MONIKACHOURASIA Date: 2018.01.28 23:49:32 -08'00'