Madhya Pradesh High Court
Salman @ Jaiki vs The State Of Madhya Pradesh on 6 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:2045
1 CRA-6874-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF JANUARY, 2025
CRIMINAL APPEAL No. 6874 of 2023
SALMAN @ JAIKI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Avinash Raizada - Advocate for appellant.
Mr. Ravindra Rajput - Panel Lawyer for State.
JUDGMENT
This appeal has been preferred being aggrieved with the judgment passed by the First Additional Sessions Judge Narmadapuram by which the appellant has been convicted for the offence punishable under Sections 454 (Part-II) and 392 of the Indian Penal Code and sentenced to suffer R.I. for 03 years with fine amount of Rs.1,000/- with default stipulation of R.I. for 03 months and sentenced to suffer R.I for 05 years with fine of Rs.1,000/- with default stipulation of R.I. for 05 months.
2. In nutshell, the prosecution case is that on 15.10.2020, complainant Vineeta Kanungo (P.W-1) was sitting in her shop Maa Gouri Saree Centre, Saraswati Nagar, Rasuliya, Hoshangabad. The appellant went on her shop and inquired about clothes. All of a sudden, the appellant snatched her gold mangalsutra estimated cost of Rs.56,000/- in which gold chain along with gold pendant was attached and ran away out of the shop. She cried for help, another person was standing outside with motorcycle and appellant riding on Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 2 CRA-6874-2023 the motorcycle went towards Bhopal Tiraha. Her landlord P.K. Thapak (PW-
6) and his wife and other persons of nearby gathered there, F.I.R. was lodged in Police Station-Dehat Narmadapuram that was registered as Crime No.492 of 2020 for the offence punishable under Section 392 of the Indian Penal Code. The appellant and co-accused were apprehended and from the possession of the appellant, stolen mangalsutra was recovered and seized and from the possession of the co-accused motorcycle was recovered and seized. Test Identification Parade of the appellant and the recovered mangalsutra was conducted by Executive Magistrate.
3. After investigation, charge-sheet was submitted. Charges under Sections 454 and 392 of the Indian Penal Code were read over to the appellant and co-accused. They abjured their guilt and prayed for trial.
4. Trial Court recorded the statements of prosecution witnesses and examined the appellant under Section 313 of the Code of Criminal Procedure. Appellant pleaded himself an innocent but he did not examine any defence witness. After hearing the parties, the trial Court passed the judgment by which one co-accused Bhura @ Imam was acquitted and this appellant has been convicted and sentenced as stated in paragraph no.1 of the judgment. Hence, this appeal.
5. Learned counsel for the appellant submits that the trial Court has wrongly convicted the appellant under Section 454 of the Indian Penal Code as the place where the incident took place, was a shop and the appellant entered into that shop for which, no permission was required. As per the case of prosecution, firstly, he inquired about the clothes and after that committed Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 3 CRA-6874-2023 the offence and thus, the provisions of Section 454 of the Indian Penal Code are not attracted, hence, the conviction cannot be maintained as no case of trespass was found. As per the case of prosecution, it is also clear that there was no lurking house trespass or house breaking to commit the offence.
6. Learned counsel for the appellant further submits that the offence is of theft and not of robbery and for robbery the ingredients of Section 390 of the Indian Penal Code are necessary to be proved but in this case, the complainant neither in F.I.R. nor in statement has submitted that the appellant voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death, of instant hurt or of instant wrongful restraint. Thus, the offence is only of theft and maximum it can be said that the act of the appellant comes under Section 380 of the Indian Penal Code.
7. Furthermore, learned counsel for the appellant submits that the Test Identification Parade is worthless as the accused and the gold mangalsutra were shown to the complainant Vineeta Kanungo (P.W-1) and independent witness Pradeep Joshi (P.W-2) has not supported the case of the prosecution and another independent witness Prabhat Kumar Thapak (P.W-6) is the interested witness as the complainant was his tenant and in that situation, the trial Court has wrongly relied on the statement of Prabhat Kumar Thapak (P.W-6), thus, the recovery of the incriminating article is not proved, hence, the appellant is entitled for acquittal.
8. Learned counsel for the State submits that the trial Court has rightly convicted the appellant. Independent witnesses have supported the case of Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 4 CRA-6874-2023 the prosecution and Police has filed the CCTV footage on the basis of that the accused persons were arrested and from the possession of the appellant just after theft, the stolen mangalsutra was recovered. No case for interference is made out, hence, the appeal be dismissed.
9. First of all, on the point of theft and robbery, Vineeta Kanungo (P.W-1) has clearly stated that on 15.10.2020, she was sitting in her shop at Saraswati Nagar, Rasuliya that was in the tenanted premises of Mr. P.K. Thapak (P.W-6) and name of the shop was Gouri Saree Centre in Saint Charles School Road. At 03:45 pm - 4:00 pm, she was alone in the shop, one person came in the shop to see the clothes, she shown the clothes to him and all of a sudden that person snatched her mangalsutra that was worn by her on neck and ran away from the shop. She ran outside from the shop and cried for help. She saw that another person was on motorcycle and that person ran away with the appellant on motorcycle. The landlord of the complainant namely P.K. Thapak (P.W-6), his wife and neighbourer shopkeepers were gathered there. She informed the incident to her husband, who reached on the spot after 10 minutes and she lodged an F.I.R in Police Station. Her mangalsutra was of 2.5 tola and the cost was about Rs. 55,000-56,000/- and in that mangasutra there was golden stripes along with pendant of goddess in which the face of goddess along with eyes and mouth was encrypted and in that light red colour dots were also encrypted and gold beads were also attached. This fact is supported by Pradeep Joshi (P.W-2), Devendra Kumar Gaur (P.W-3), Prabhat Kumar Thapak (P.W-6) and by the F.I.R. (Exhibit- P/1). Thus, it is clear that when the victim sat in her shop, the appellant Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 5 CRA-6874-2023 reached there and after sometime, he snatched the mangalsutra from the neck of the complainant Vineeta Kanungo (PW-1) and ran away from there.
10. Vineeta Kanungo (PW-1) or the Police Officer has not stated that Vineeta Kanungo (PW-1) suffered any injury and it is also not the case of the prosecution that any threat was given to the complainant or she was put in the fear. Thus, no injury was caused to the victim or attempted to cause injury to the victim and she was also not put in the instant fear of death, hurt or wrongful restraint and the above acts were also not done, hence, it is clear that the act does not qualify the pre-requisite of Section 390 of the IPC which defines when the theft become the robbery in the case of theft and when it become from extortion to robbery. Thus, the act comes only under the purview of Section 379 of the IPC and the theft was committed in shop. Thus, the act is punishable under Section 380 of the Indian Penal Code.
11. The case of the prosecution is based on two facts, one that the stolen property was recovered from the possession of the appellant just after the incident and another is that the appellant was identified by the victim in Test Identification Parade.
12. On the second point, regarding the Test Identification Parade, prosecution has relied on the statement of Lalit Soni (P.W-7), Vineeta Kanungo (PW-1) and T.I.P. memo (Exhibit-P/4). On this point firstly, the incident happened on 15.10.2020 and the appellant was apprehended on 16.10.2020 and T.I.P. was conducted on 04.11.2020 with the delay of more than 16 days. Furthermore, Vineeta Kanungo (P.W-1) in paragraph no.7 of her cross-examination has stated that firstly, she went Police Station to lodge Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 6 CRA-6874-2023 the F.I.R and secondly, when the appellant was arrested by the Police in the Police Station, the Police shown the accused and told to the victim that these accused persons have been apprehended. On the same fact, the prosecution witness Pradeep Joshi (P.W-2) has also stated that firstly, when he went to the Police Station along with Vineeta Kanungo (PW-1) and Mukesh Kanungo and in the Police Station, they saw the accused persons, Police told them that they caught the accused persons and looking to the fact that the appellant was already shown to the victim, then the Test Identification Parade is futile and this evidence does not help the prosecution.
13. On the point of recovery of stolen articles from the possession of the appellant, the prosecution witness Pradeep Joshi (P.W-2) has stated that he visited the Police Station and Police was preparing some documents and on the instructions of Police, he signed the documents. The appellant did not disclose anything before him and no articles were recovered in his presence from the possession of the appellant and this witness was thoroughly cross- examined by the prosecution but nothing has been brought on the record but other witness of the seizure.
14. Prabhat Kumar Thapak (P.W-6) though interested has clearly stated that on the second day of the incident, Police called him in the Police Station and shown the accused persons on that appellant Jaiki @ Salman disclosed that he has kept the mangalsutra in a box in his house situated at Irani Mohalla, Pipariya and on this information, the Police went and recovered mangalsutra from the possession of the appellant and arrest memo and seizure memo were made and signed by this witness. From the cross-
Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 7 CRA-6874-2023 examination of this witness, nothing has been brought by which the statement of this witness becomes doubtful.
15. The Investigating Officer, Akashdeep (P.W-4) has stated that just after the incident, on 15.10.2020, he went in the control room and obtained the CCTV footage installed in the city (that were placed before the trial Court as A/1) and on that basis, he searched the appellant and on 16.10.2020, he arrested and interrogated the appellant and on his disclosure, he prepared the disclosure memo (Exhibit-P/7) and on the disclosure, on the same day i.e. on 16.10.2020 at 17:00 pm, he along with the accused person went to the house of the appellant situated at Tower Mohalla, Pipariya and the appellant submitted the stolen mangalsutra from a box in his house. The mangalsutra was having six stripes and having three black colour beads and a gold pendant in which, face of the goddess was encrypted and there were two symbols one of eyes and another one of mouth and in the forehead there was bindi in red colour gem and it was having green and red dotted stones with three broken ghunghroos. This article was recovered and sealed and seizure memo was prepared as exhibit-P/9. In the cross-examination of this witness, nothing has been brought by which, the statement of the Police Officer can be disbelieved.
16. Furthermore, on what basis, the prompt arrest was made. Akashdeep (P.W-4) has clearly stated that he got the CCTV footage and on that basis, arrested the appellant.
17. This fact is further supported by Chetan Narware (P.W-5) who has stated that on that date i.e. on 15.10.2020 since 16:00 pm to 17:00 pm, he Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 8 CRA-6874-2023 handed over the CCTV footage to the Investigating Officer in a DVD i.e. article A/1 and the DVD is supported with the certificate under Section 65-B of the Evidence Act. Thus from the evidence, it is clear that on the basis of CCTV footage, the appellant was promptly arrested on the basis of the identity told by the victim and witnesses and the recovery of motorcycle colour and clothes of the appellant as told by the victim.
18. To establish the identity of the stolen article recovered from the possession of appellant, witness Vineeta Kanungo (PW-1) has clearly stated that after fifteen days of the incident, Revenue Patwari came and called her for identification of mangalsutra and 3-4 mangalsutras were mixed with her mangalsutra and she identified her mangalsutra. Identification memo was prepared as Exhibit-P/3 and in the cross-examination not a single question had been put to the victim regarding this identification.
19. In the same way, Lalit Soni (P.W-7) has clearly stated that he arranged the T.I.P of the stolen article and mixed other manalsutras of the same design and complainant identified her mangalsutra by touching the gem and on that time no Police Officer was present there. Identification memo of the property was prepared (Exhibit-P/3) that bears his signature and of the complainant and this fact is also not challenged in the cross-examination of this witness. Hence, it is clear that stolen mangalsutra was recovered on the next date of theft on 16.10.2020 from the possession of the appellant and the appellant has not submitted any explanation from where he got the stolen property.
20. Thus, as per the provision of Section 114 of the Evidence Act, it Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 9 CRA-6874-2023 shall be presumed that either the appellant committed theft or he obtained the stolen property and from the other evidence, it is clear that the appellant himself had committed the theft. Hence, he is liable to be convicted for the offence of theft.
21. From the above discussion, it is also clear that the theft was committed from a shop that is a place of safety of a property. Hence, the appellant is liable for the offence punishable under Section 380 of the Indian Penal Code.
22. Thus the conviction of the appellant under Sections 454 and 392 of the Indian Penal Code cannot be sustained and his conviction is altered and the appellant is convicted for offence punishable under Section 380 of the Indian Penal Code.
23. The appellant was in custody from 16.10.2020 to 06.02.2021 and from 15.11.2022 to 28.04.2023 and from the date judgment i.e. 28.04.2023 since till date. Sections 454 and 392 of the Indian Penal Code cannot be sustained. Offence is punishable under Section 380 of the Indian Penal Code for imprisonment upto R.I. for 07 years and fine.
24. Thus, looking to the facts and circumstances of the case, the appellant is sentenced to suffer R.I. for 03 years for offence punishable under Section 380 of the Indian Penal Code with fine amount of Rs.2,000/- and in default of depositing the fine amount, he shall further undergo R.I. for 06 months.
25. With the above modification, the appeal is partly allowed.
26. Trial Court shall prepare the supersession warrant and sent the Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53 NEUTRAL CITATION NO. 2025:MPHC-JBP:2045 10 CRA-6874-2023 appellant to undergo the rest of jail sentence. The period of detention during the trial shall be set off.
27. With the copy of the order, the record of the trial Court be returned back.
(DEVNARAYAN MISHRA) JUDGE julie Signature Not Verified Signed by: JULIE SINGH Signing time: 21-01-2025 19:01:53