Madhya Pradesh High Court
Sanjay Alias Kalu Alias Sanju vs The State Of Madhya Pradesh on 13 June, 2022
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 13th OF JUNE, 2022
CRIMINAL APPEAL No. 1782 of 2012
Between:-
1. SANJAY ALIAS KALU ALIAS SANJU S/O RAJU
BALAI , AGED ABOUT 22 YEARS, R/O VILL.
SONGIR, P.S. PANDHANA DISTT. KHANDWA
M.P. (MADHYA PRADESH)
2. KAMAL SINGH BALAI S/O BABULAL BALAI ,
AGED ABOUT 40 YEARS, ASHOK KI JHUGGI,
INFRONT OF R.R.L.DURGA NAGAR, BHOPAL,
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PREMNARAYAN VERMA, AMICUS CURIAE AND MS.
SARITA KOSHTA,)
AND
THE STATE OF MADHYA PRADESH THROUGH :
P.S. T.T.NGAR BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI CHANDRAPAL SINGH PARMAR, PULIC PROSECUTOR)
This appeal coming on for final hearing this day, the court passed the
following:
JUDGMENT
Appellant No. 1 Sanjay @ Sanju @ Kalu, who is also accused in about 40 other criminal cases, has been convicted under Section 392 and sentenced to R.I. for seven years and fine of Rs.2,000/- with default stipulation whereas appellant No. 2 Kamal Singh Balai has been convicted under Section 216-A, Signature Not Verified SAN I.P.C and sentenced to R.I. for 7 years and fine of Rs.2000/- with default Digitally signed by VIVEK KUMAR TRIPATHI stipulation recorded by the trial court vide judgment dated 16.7.2012 passed in Date: 2022.06.17 10:12:30 IST 2 S.T No. 462/2011.
2. The allegation against the appellant No. 1 Sanjay @ Kalu @ Sanju is that on 25.5.2011 at about 6:30 p.m he snatched a gold chain from complainant Abhilasha Sharma which she was donning around her neck and ran away from the spot. She reported the matter to the Police Station T.T. Nagar, Bhopal where Crime No. 523/2010 under Section 392 was recorded by ascribing F.I.R (Ex. P-2). Police visited the spot and prepared spot map (Ex. P-3). During investigation the police apprehended appellant No. 1 Sanjay @ Kalu @ Sanju (Ex. P-8) and following his disclosure statement (Ex. P-11) recovered stolen chain from the shanty of appellant No. 2 Kamal Singh Balai vide seizure memo (Ex. P-12) and apprehended appellant No. 2 Kamal Singh Balai (Ex. P-9). The gold chain as well as appellant No. 1 Sanjay @ Kalu @ Sanju were identified by the victim in identification proceedings (Ex. P-1 and P-4). The police also recorded statement of witnesses under Section 161 Cr.P.C and after completing investigation filed charge-sheet.
3. Charge under Section 392 I.P.C was framed against appellant No. 1 Sanjay @ Kalu @ Sanju whereas under Section 216-A I.P.C was framed against appellant No. 2 Kamal Singh Balai. They abjured their guilt and pleaded for trial. After trial they have been convicted and sentenced as stated in paragraph 1 above.
4. The appellants have preferred this appeal on the grounds that the impugned judgment of conviction and sentence is contrary to the law, facts and circumstances of the case. The learned Trial court has erred in passing the impugned judgment merely on the evidence of interested witnesses even when Signature Not Verified SAN the independent witnesses were available but not examined. Learned Trial Digitally signed by VIVEK KUMAR TRIPATHI Court ought to have considered that at the time of raid, seizure and other Date: 2022.06.17 10:12:30 IST 3 proceedings several persons of public were present on the spot but none of them was made witness to the proceedings. This vitiates the entire case of the prosecution. Appellant No. 2 Kamal Singh Balai is not related to appellant No. 1 Sanjay @ Kalu @ Sanju. There is no evidence of his nexus with the crime committed by him. He has been impleaded in the instant case on the basis that stolen property was recovered from his shanty, but there is no evidence that he was having any knowledge of the act of his co-inmate. The Trial Court has ignored contradictions, omissions and improvement appeared in the testimony of prosecution witnesses. The Trial Court has miss-appreciated the evidence and miss-applied the law. The conviction is based on conjecture and surmises instead of basing it on reliable evidence. Necessary ingredients of the charges alleged against the offences do not exist in the case to support the prosecution version. The statement of witnesses have not supported or corroborated on the material particular by any other evidence. The sentence of the appellants is severe and uncalled for; therefore, deserves to be set aside.
5. Learned counsel appearing for the appellants reiterated the grounds in their arguments. In addition to that it is also submitted that there is no evidence on record to consider that appellant No. 2 Kamal Balai harboured appellant No. 1 Sanjay @ Kalu @ Sanju knowing that he is a proclaimed offender or escaping from police or any order for his apprehension has been issued. Therefore, his conviction is contrary to the record.
6. State has supported the impugned judgment.
7. I have considered the rival contentions of the parties and perused the Signature Not Verified SAN record.
Digitally signed by VIVEK KUMAR8. Before the Trial Court the prosecution has examined complainant TRIPATHI Date: 2022.06.17 10:12:30 IST 4 Abhilasha Sharma (PW-2). She has stated before the Court that on 25.5.2011 at about 6.00 p.m. when she was working in her garden along with his gardener Ram Singh, a motorcyclist snatched her gold Chain weighing 30 grams and fled away. She lodged F.I.R (Ex. P-2). The Police visited the spot and prepared map (Ex. P-3). No substantial challenge has been given to this statement which is further supported by the statement of A.S.I. Rajmal Mishra (PW-5) and F.I.R (Ex. P-2). Therefore, the Trial Court has rightly held that on the alleged time and date the golden chain was snatched from the complainant.
9. Inspector Chandrika Prasad Dwivedi (PW 11) has deposed before the Trial Court that acting on a discrete information he raided a shanty situated in Durganagar on 3.6.2011 and found the appellants there. They were arrested and interrogated. Appellant No. 1 Sanjay @ Kalu @ Sanju revealed information about gold chain snatched from the complainant stating that along with some other stolen articles it has been kept in the same shanty of Kamal Balai. Acting on this information Police recovered several items from shanty including gold chain which is the subject matter of this case.
10. The chain as well as appellant No. 1 Sanjay @ Kalu @ Sanju were placed before the complainant for identification and she identified both correctly. Bharat Singh (PW 9) and Kailash (PW 10) have supported the statement of Investigating Officer with regard to disclosure made by the appellant Sanjay @ Kalu @ Sanju and recovery of gold chain from the shanty of Kamal Balai on the basis of his disclosure. Complainant Abhilasha Sharma ( PW 2), Naib Tahsildar Brajesh Saxena (PW-1) and Tahsildar Manish Shrivastava (PW6) have supported the prosecution case with regard to Signature Not Verified SAN identification of stolen property, i.e., gold chain as well as identification of Digitally signed by VIVEK KUMAR TRIPATHI appellant No. 1 Sanjay @ Kalu @ Sanju. Statement of all these witnesses could Date: 2022.06.17 10:12:30 IST 5 not be rebutted in their cross-examination and they are further corroborated by memorandum statement of appellant No. 1Sanjay @ Kalu @ Sanju, Memorandum of identification (Ex. P-1) and identification of article (Ex. P-4). There is nothing on record to doubt or disbelieve this entire evidence. The Trial Court has appreciated all these evidence correctly and rightly convicted the appellant No. 1 Sanjay @ Kalu @ Sanju.
11. So far as appellant No. 2 Kamal Balai is concerned, the only evidence which the prosecution could produce against him is that at the time of raid he was present in shanty along with co-accused Sanjay @ Kalu @ Sanju. There is nothing on record to show that Kamal Balai was aware about the criminal antecedents of appellant No. 1 Sanjay @ Kalu @ Sanju or about the property kept in his shanty by him. Harbouring is punishable when a person conceals any other person against whom a public servant has issued an order of his apprehension for an offence knowingly or horbours that person with an intention of preventing him from being apprehended. None of the prosecution witnesses has stated that Kamal Balai had harboured or concealed co-accused Sanjay @ Kalu @ Sanju knowing that he is escaping from the authority of a public servant or absconding in some crime. In paragraph 16 of the impugned judgment the learned Trial Court has only considered the fact that at the time of raid along with Kamal Balai co-accused Sanjay @ Kalu @ Sanju was found with him and some stolen property was recovered from his shanty on the disclosure made by Sanjay @ Kalu @ Sanju. In the considered opinion of this Court this alone is not sufficient to hold appellant Kamal Balai guilty of the offence Signature Not Verified SAN charged against him.
Digitally signed by VIVEK KUMAR12. In the result the appeal preferred by the appellant Sanjay @ Kalu @ TRIPATHI Date: 2022.06.17 10:12:30 IST 6 Sanju has no merit. While the appeal preferred by the appellant Kamal Balai is allowed and he is acquitted of the charge under Section 216 A, I.P.C. His bail bond stands discharged. Fine amount, if deposited, be returned to him. He shall be set at liberty if not required in any other case.
13. Learned Public Prosecutor submitted that appellant Sanjay @ Kalu @ Sanju is an accused in about 40 cases. Reports received from the Superintendent, Central Jail Bhopal dated 11.3.2022 and 24.4.2022 also reflect that appellant Sanjay @ Kalu @ Sanju has been convicted in 42 cases and is undergoing sentence awarded by the different Courts. The present case is the 10th in number for which he has to serve out the sentence. In the present case his sentence still has to start. In view of this the sentence awarded to the appellant Sanjay @ Kalu @ Sanju also does not seem to be disproportionate. On this count also his prayer has no merit and deserves to be and is hereby dismissed.
14. With the aforesaid the appeal preferred by appellant No. 1 Sanjay @ Kalu @ Sanju is dismissed and the appeal preferred by appellant No. 2 Kamal Singh Balai allowed.
(VIRENDER SINGH) JUDGE vivek Signature Not Verified SAN Digitally signed by VIVEK KUMAR TRIPATHI Date: 2022.06.17 10:12:30 IST