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Judgment
This Criminal Appeal is directed against judgment and order dated 16/01/2015 passed by III Additional Sessions Judge, Dewas in S.T. No.235/2013, whereby and whereunder appellant Dharmendra has been found guilty for offence punishable under Section 392 of IPC and sentenced to suffer two years RI and to pay a fine of Rs.1000/- with usual default stipulation.
Prosecution story, as having emerged during trial, briefly stated, is that on 13.02.2013 around 12-1 p.m., complainant Ankur Mishra (P.W.5) was going to his house on his bicycle. While he was passing nearby the house of Collector, Dewas, a man wearing red T-shirt and jeans came
from behind on a black Hero-Honda motorcycle from behind and snatched away his mobile from his hand and thereafter, fled away from the spot. As Ankur Mishra (P.W.5) had to go to some other place, therefore, he did not lodge the FIR immediately. After coming back to Dewas on 18.02.2013, he lodged First Information Report (Ex.P/3) in this regard with police station, Dewas, on the basis whereof an offence under Section 392 of IPC was registered against unknown person. During investigation, on the basis of secret information, the appellant was apprehended by police on 19.02.2013 and pursuant to disclosure made by him, vide memo Ex.P/9, as many as eight mobile phones including one Samsung mobile with IMEI No35540904842233-5 (black colour), said to have been snatched away from complainant Ankur Mishra (P.W.5), were recovered from the house of the appellant situated in village Undasa. The appellant was identified by Ankur Mishra (P.W.5), vide identification memo (Ex.P/6) in Test Identification Parade conducted by Shekhar Choudhary (P.W.10), the Executive Magistrate. After usual investigation, the charge-sheet was laid against the appellant before the Competent Magistrate, who in due course committed the case to the Court of Sessions from where it was made over to the III Additional Sessions Judge, Dewas.
The charge under Section 392 of IPC was framed against the appellant, who abjured the guilt and claimed to be tried. The prosecution in order to bring home the guilt examined as many as 10 witnesses including complainant Ankur Mishra (P.W.5) and A.S.I. Saukat Khan (P.W.4), the Investigating Officer. Shekhar Choudhary (P.W.10) is said to have conducted the Test Identification Parade, while Vikas Sani (P.W.7) and Rahul Bhawsar (P.W.8) are said to be the ''Panch'' witnesses of search and seizure. Apart this, documents Ex.P/1 to Ex.P/11 were also marked as exhibits. The Appellant preferred not to adduce any evidence oral or documentary, however, police statement of Ankur Mishra (P.W.5) and Ranvir Parihar (P.W.6) were respectively, marked as Ex.D/1 and Ex.D/2.
The appellant was examined under Section 313 of ''the Code'' in respect of incriminating circumstances appearing against him in the prosecution evidence. He made a bald denial regarding most of the circumstances and claimed that he has been falsely implicated by the police.
The learned trial Court on appreciation of evidence, vide the impugned judgment, found the charge under Section 392 of IPC proved beyond reasonable doubt against the appellant. Accordingly, he was convicted and sentenced as stated herein above in para-1.
The appellant, in this appeal, preferred through Superintendent, Central Jail, Ujjain, has challenged his conviction and sentence on various grounds. The contention of learned counsel for the appellant is that the First Information Report was lodged after a delay of five days, however, the delay was not at all explained. It is further submitted that the Test Identification Parade was conducted after about 3 months of the alleged incident and that Ankur Mishira (P.W.5) has deposed about presence of police at the time of identification, therefore, the proceedings with regard to test identification stood vitiated. Lastly, it is submitted that ''Panch'' witnesses of search and seizure namely, Vikas Sani (P.W.7) and Rahul Bhawsar (P.W.8) have not supported the prosecution story, therefore, the learned trial Court committed a serious error in recording conviction on the basis of uncorroborated testimony of police officials, therefore, the impugned judgment is liable to be set aside.
Per contra, it is submitted by learned Public Prosecutor that Ankur Mishra (P.W.5) has explained the delay in lodging the FIR inasmuch as he has clearly deposed that he was required to go to some place, therefore, he did not instantly lodge the report and the same was lodged when he came back to Dewas. It is further submitted that Executive Magistrate Shekhar Choudhary (P.W.10), who conducted the test identification proceedings has clearly stated that no
police officials was present at the time of test identification proceedings, therefore, the vague statement of Ankur Mishra (P.W.5) that police was present cannot be made ground to discard the prosecution story, particularly because police officials and officials of the jail both wear ''Khaki'' uniform and a rustic person like Ankur Mishra (P.W.5) because of ''Khaki'' uniform could have gathered the impression that the official of jail were police officers. Lastly, it is submitted that nothing has been brought on record to indicate that Ankur Mishra (P.W.5) or A.S.I. Shaukat Khan (P.W.4) have any ill will, animosity or enmity against the appellant and for that reason were interested in falsely implicating him, therefore, the testimony of these witnesses, which has stood the test of cross-examination cannot be thrown overboard simply because ''Panch'' witnesses Vikas Sani (P.W.7) and Rahul Bhawsar (P.W.8) have not supported the prosecution story. It is contended that the appeal has no force and, therefore, the same deserves to be dismissed.
Heard the learned counsel for the parties and perused the record. The question that arises for consideration is whether the conviction and sentence recorded by learned trial Court is in accordance with law and the evidence?
Complainant Ankur Mishra (P.W.5) has clearly deposed that on 13.02.2013 around Noon when he was
passing from in front of Collector''s house, the appellant riding a Hero Honda Splendor motorcycle came from behind and snatched away his mobile phone from his hand. This witness has further deposed that he could well identify the appellant who had pushed him away. Though a minor omission has emerged in police statement Ex.D/1 of this witness on the point of being pushed away, however, the same, being with regard to descriptive detail of the incident, cannot be given much importance and hence, may not be made a basis to disbelieve Ankur Mishra (P.W.5). This witness has further deposed that he had identified the appellant in Bherugarh jail, Ujjain, and that memo Ex.P/6 was prepared in this regard. Though Ankur Mishra (P.W.5) has stated that police was with him, however, that cannot be taken to mean that the police officials were present at the time of identification. Further, Shekhar Choudhary (P.W.10), who conducted test identification proceedings, has clearly deposed that no police officer was present at the relevant time. His statement in this regard has not been challenged in crossexamination.
Ankur Mishra (P.W.5) has further explained about the delay in lodging the FIR. In para-3 this witness has deposed that he had to go to some other place because of some urgent business, therefore, he could not immediately lodged the report of the incident. There is nothing to
disbelieve him on this point. Though the appellant has vaguely stated that he has been falsely implicated, however, nothing specific has been stated by him in this regard in his examination under Section 313 of ''the Code''. Further, nothing has emerged in the statement of Ankur Mishra (P.W.5) that he has any grudge or past enmity with the appellant and hence, wants to falsely implicate him in this case.
The testimony of Ankur Mishra (P.W.5) being clear, consistent and cogent deserves acceptance. Hence, it cannot be said that the learned trial Court has committed any error in relying upon the testimony of Ankur Mishra (P.W.5) and Shekhar Choudhary (P.W.10).
As regards seizure of mobile phone, A.S.I. Dharmendra Kumar (P.W.9) has clearly deposed that on interrogation the appellant made disclosure about the two mobile phones lying in his pocket and remaining six mobile phones lying in his house at village Undasa. This witness has further deposed that on the basis of this information eight mobiles phones were recovered from the house of the appellant, vide seizure memo Ex.P/10 including Samsung mobile phone (Article A). The testimony of this witness has remained unscratched in cross-examination. Apart this, there is nothing to indicate that this witness is interested in falsely implicating the applicant for any extraneous reason. Though ''Panch'' witnesses
Vikas Sani (P.W.7) and Rahul Bhawsar (P.W.8) have not supported the prosecution story regarding search and seizure, however, the law is well settled that the testimony of a police officer cannot be thrown overboard only on the ground that he is a police officer. If the testimony of a police officer, on due appreciation, is found to be trustworthy and free from material contradictions and anomalies, nothing prevents in law in accepting such evidence. In P.P. Beeran v. State of Kerala, AIR 2001 SC 2420, a case under the NDPS Act, the apex Court in this regard has held as under:
"Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness."
Therefore, it is further proved that on the basis of the information supplied by the appellant, Mobile phone (Article-A) was recovered by police from the appellant.
Regard being had to the aforesaid, it cannot be said that the learned trial Court has committed any error in convicting the appellant for offence under Section 392 of IPC. The learned trial Court has imposed a sentence of 2 years RI and fine of Rs.1000/- and in default of the payment of the fine, further RI of three months. In the facts and circumstances of the case, it cannot be said that the sentence is either disproportionate or unreasonable.
Resultantly, I do not find any infirmity, factual or legal, in the impugned judgment. Hence, this appeal is liable to be and is accordingly, hereby dismissed. The appellant is in custody since 16.01.2015, meaning thereby, he has completed the custodial sentence imposed against him, so also the default sentence. If not required to be detained in any other case, he be set at liberty forthwith.