Madhya Pradesh High Court
Deepak @ Golu vs The State Of Madhya Pradesh on 4 April, 2019
1
HIGH COURT OF MADHYA PRADESH: BENCH:INDORE
(SINGLE BENCH: HON.MR.JUSTICE PRAKASH
SHRIVASTAVA)
CRIMINAL APPEAL No.1339/2014
(Rohit Vs. State of MP)
CRIMINAL APPEAL No.1680/2014
(Deepak @ Golu Vs. State of M.P.)
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Shri Sanjay Sharma, learned counsel for appellant in Cr.A.No.1339/2014.
Shri Prakash Pancholi, learned counsel for appellant in Cr.A. No.1680/2014.
Shri Sandeep Mehta, learned GA for respondent/State.
------------------------------------------------------------------------------------- Whether approved for reporting JUDG MENT (Delivered on April, 2019) By these appeals u/S.374 of the Cr.P.C, the appellants have challenged the judgment dated 2/9/2014 passed by II Addl. Sessions Judge, Neemuch in ST No.135/2013 convicting the appellants for offence u/Ss.458 of the IPC and awarding the sentence of seven years each with fine of Rs.1000/- each and default sentence of six months as also convicting them for offence u/S.392 read with Sec.397 of the IPC and awarding sentence of 10 years RI each with fine of Rs.1000/- each and default sentence of six months.
[2] The prosecution story is that in the intervening night of 16 th and 17th July, 2013, around 12'o clock when the complainant Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 2 Manoj Sharma (PW.9) was working on the laptop in his house he had heard the knock on the door of the house and on opening the door three persons whose faces were covered with the cloth had entered and one of them had caught hold of his neck, other person had fixed white tape on his mouth and had taken out and thrown the mobile from his shirt pocket. They had taken the gold chain from the neck of Manoj, two golden rings from his right hand, two mobile phones from his pant pocket, one Samsung and other Intex and the purse from the back pocket of his pant containing two ATM, two Health card and other papers and also taken the Titan wrist watch which he was wearing. One of the person had put a small gun on his head and the other one had put gupti like knife on Manoj and threatened him to remain silent. They had taken out the keys from the drawer and had opened the locker and had taken 5 packets of Rs.100/- currency notes of value Rs.50,000/- and one packet of Rs.10/- currency note of value Rs.1000/-. While going, they also took away one 14"
Laptop of Dell Company, mouse and key board belonging to Manoj. Manoj had disclosed that two persons were healthy and had tied red clothes on their face and were wearing jeans and shirt and one of the person was of middle built who had tied white cloth on his face and was wearing jeans and tea-shirt. They had gone away after locking the door from outside. Manoj after getting himself free had called his friend Vikas PW.16 on Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 3 phone who came along with Naresh and Balvansingh and had opened the door and thereafter the intimation of the incident was given to P.S, Neemuch Cantt and FIR Ex.P/14 was registered. The police had seized the bandage tape, the boxes of the mobile phone etc from the spot, spot map was prepared. The MLC of Manoj was done by Dr.S.S.Baghel PW.6 who had given the report Ex.P/11. During the course of investigation, on receipt of the information about involvement of the appellant Rohit who was already in custody in connection with another offence, a former arrest was done and on interrogation he had disclosed about the commission of offence by him along with co-accused Deepak @ Golu and Rakesh. On the memorandum of the accused persons, the stolen items were recovered. In the TI parade appellants were identified and after investigation the police had filed the challan and charge for commission of offence u/Ss.458, 394 and 397 of the IPC was framed.
[3] Appellants had abjured their guilt, accordingly the trial had taken place in which they have been convicted and sentence in the matter as mentioned above.
[4] Learned counsel for appellants Rohit submits that the offence u/S.392 read with 397 of the IPC is not made out because the TI was defective as it was done belatedly and there was no purpose of holding the TI because as per FIR, the faces were covered and there is a discrepancy in respect of the Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 4 denomination of currency notes recovered from appellant Rohit and which were stolen and in the MLC no injury was found on the body of Manoj and no nylon rope has been recovered and the identity of the accused persons has not been duly established and the appellants have been falsely implicated. Learned counsel for appellant Deepak has adopted the same argument and has submitted that there is no proof that the seized laptop, gold chain and mobile from him were the stolen items.
[5] As against this, learned counsel for State has supported the impugned judgment.
[6] Having heard the learned counsel for parties and on perusal of the record, it is noticed that PW.9 Manoj has clearly deposed that three persons had forcibly entered his house and one was having a gun in his hand and the other person was having a guptinama knife with which they had threatened him. He had also disclosed about the manner in which those three persons had taken gold chain which he was wearing, Intex and Samsung Mobile from his pant pocket, purse from his pocket containing two ATM card, two Health card, driving licence and opening of the locker by them and taking Rs.50,000/- in Rs.100/- denomination in five packets and Rs.1000/- in Rs.10/- denomination in one packet and also taking away of the Dell laptop, digital camera of Kodak company and Titan watch which Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 5 he was wearing, two gold ring from his left hand fingers. He had also given the broad description of the three accused persons in the FIR Ex.P/14 itself.
[7] Dharmendra Singh PW.7 has proved the sale of Laptop to Manoj and Ex.P/12, the bill thereof has been proved establishing that at the time of the incident Manoj was having Dell laptop, Vastro 1440 Model.
[8] The statement of Manoj along with the statement of Balvansingh PW.11 established that the offence was committed by the three persons.
[9] The complainant Manoj in the FIR Ex.P/14 at the first instance itself had given the description of the three accused persons by disclosing that the two were of healthy built and one was of medium built. He had also given the description of clothes which they were wearing. In the TI parade Manoj PW.9 has identified the appellants Rohit and Golu, the panchnama of which is Ex.P/18. The evidence reflects that the accused persons were properly mixed with other 11 persons of similar description at the time of the TI parade. The FIR reflects that the entire incident had continued for 10-15 minutes giving sufficient time to the complainant Manoj to observe the accused persons and the complainant in his statement before the court has also remained firm about the identity of the appellants. [10] PW.14 Tehsildar Shatrughan Chaturvedi had given the Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 6 description of the manner in which identification parade was done and has also disclosed that no police officer or employee was present at the time of the identification parade and has also disclosed that the accused persons were mixed with 11 other persons of similar description in TI parade in which Manoj had identified appellant Rohit and Deepak @ Golu. The argument relating to affixing of photograph of Rohit in the arrest memo or keeping the accused persons beparda in the police station has duly been considered and it has been noted that there is no evidence that the complainant Manoj had visited the police station after recording of the FIR.
[11] After the arrest vide Ex.P/3, the appellant Rohit had given the memorandum Ex.P/5 disclosing that Rs.10000/- were received by him from the looted money and he had spent Rs.5000/- and remaining 5000/- were kept beneath his bed. Accordingly PW.17 Narendrasingh Sengar had recovered and seized the remaining Rs.5000/- vide Ex.P/6 from beneath the bed of the appellant Rohit.
[12] So far as appellant Golu is concerned, he vide memo Ex.P/8 had disclosed that Rs.10000/-, gold chain, laptop, mouse, key board received by him from the stolen item were kept in a box in the house of his grandmother Kamladevi and on the basis of the said memorandum vide seizure memo Ex.P/20, these items have been seized from a box from the house of Kamlabai Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 7 by PW.17 Narendra Singh Sengar. Purity of the seized chain has been verified vide Ex.P/21. This is also supported by the statement of PW.4 Kailash. The record further reflects that the aforesaid items seized from the appellants have duly been identified by the complainant Manoj vide Ex.P/17 and from the statement of PW.14 Shatrughan Chaturvedi, it is established that these items were properly mixed with other items of similar nature at the time of identification. The issue that the currency notes of different denomination have been recovered from Rohit has been examined by the trial court and it has been noted that there was lapse of time and part of the amount was already spent, hence this aspect has rightly been not found to be relevant.
[13] So far as the argument relating to injuries is concerned, PW.9 Manoj has clearly stated that he had not received any injury when the tape affixed on his mouth was taken out, therefore, in the MLC no injury has been found and the minor discrepancy in respect of the seizure of naadi instead of nylon rope has duly been considered by the trial court. [14] Having regard to the aforesaid analysis, I am of the opinion that the trial court has not committed any error in convicting the appellants for offence u/Ss.458 and Sec.392 read with Sec.397 of the IPC,.
[15] Counsel for the appellant has also argued that sentence Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 8 award on the higher side. The sentence which has been awarded to the appellant for offence u/Ss.392 read with Sec.397 is of 10 years. Considering the fact that the appellants are of young age at the time of commission of offence and other circumstances of the case and also the fact that they have remained in custody from the date of incident, I am of the opinion that it would not be just and proper to award them the sentence higher than the minimum sentence prescribed u/S.392 and 397 of the IPC. The minimum sentence prescribed u/S.392 and 397 of the IPC is seven years, hence the sentence awarded to the appellant is reduced to seven years.
[16] In view of the above analysis, the appeals are partly allowed. The conviction of the appellants for offence u/Ss.458, 392 read with Sec.397 of the IPC is upheld, but the sentence awarded to the appellants for offence u/S.392 read with Sec.397 is reduced seven years.
[17] The signed judgment be placed in the record of Cr.Appeal No.1339/2014 and copy whereof be placed in the record of con- nected Cr.Appeal No.1680/2014.
(Prakash Shrivastava) JUDGE VM Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15 9 Digitally signed by Varghese Mathew Date: 05/04/2019 18:40:15