Dinesh And Ors vs State Of Madhya Pradesh

Heard on IA No.9838/2019, an application for condonation of delay.

As per office report, there is a delay of 45 days in filing the present appeal.

On due consideration, IA No.9838/2019 is allowed.

Delay is condoned.

With consent of the parties, both the appeals heard finally.

Both these appeals are arisen out of the same judgment, therefore, they are heard analogously and are being decided by this common judgment.

All the four appellants have been convicted under section 392 read with 120-B of the IPC vide order dated 24.07.2019 in Sessions Trial No.17/22019 by 2nd Additional Sessions Judge, Kukshi Dhar and have been awarded 5-5 years RI with fine of Rs.2000-2000/-. In default, further to undergo, 6-6 months RI each.

The prosecution case in brief is that on 17.05.2018, when the complainant was coming back home after his duty as Guard from the bank, he was surrounded by four motorcyclist came on two different motorcycles. They caught his gun hanged on shoulder on the running motorcycle and when he stopped his motorcycle, they all four snatched his gun, magazine containing 6 cartridges of 12 bore, a belt containing 6 cartridges of 12 bore and a mobile phone and fled away. The complainant lodged FIR Ex.P/6, Crime no.87/2018 was registered at the police station Tanda. The police reached on the spot and prepared spot map Ex.P/17, arrested the accused persons vide arrest memo Ex.P/2-5, interrogated them and prepared their disclosure statement Ex.P/6-9, recovered 1-1 cartridge, from all the accused persons and seized them vide seizure memo Ex.P/9-12, recovered gun from the bushes vide Ex.P/15 and gun and Cartridges were placed them before the complainant for identification, who identified them correctly Ex.P/14-18. The accused persons were also placed before the complainant for identification. Out of four, he identified only one Gangu. Identification memo is Ex.P/14. After completing the other usual investigation, the police filed the charge sheet.

The accused persons were charge, tried, convicted and sentenced as stated above.

The appellants have not challenged the incident and the loot of fact that gun and cartridges from the complainant, therefore, there is no need to discuss this fact in detail.

The appellants Dinesh, Bheru and Jassu were not identified by the complainant during the identification parade conducted during the investigation and and he has not identified appellant Gangu in the Court, therefore, this evidence cannot be used against them.

Recovery of gun is made from open place and not from the possession of any of the appellant. Thus, this evidence also does not help the prosecution.

The trial Court has convicted the appellant only on the basis of recovery of cartridges and its appreciation as stolen property. The police have recovered one cartridges each from each appellant. Besides an empty cartridge is also recovered from the appellant Jassu but all the independent witnesses of these seizure have turned hostile. Nothing has been recovered by the police before them. The entire case of the prosecution solely depends on the statement of SHO Inspector M.T Baig PW/9, who has made up an unnatural story. It does not inspire confidence that after committing loot, the gun was thrown away by the miscreants, while they distributed one cartridges each among themselves and kept such useless thing concealed in their respective houses. It appears that the police have arrested the accused persons when they were in custody in some other case, therefore, they were arrested in the present case formally and thereafter, the entire proceedings of interrogation and recovery/seizure was conducted by the police. It is claimed by the prosecution that the Sarpanch of the village was requested to conduct the identification of the articles and Sarpanch Jamku Bai PW/5 conducted the same but before the Court Sarpanch Jamku Bai has stated that about a year back from her statement before the Court the police approached her and obtained her signatures on 2-3 blank papers. She does not know anything about the alleged identification of the cartridges. Thought, she has been turned hostile, but her hostility puts a question on the prosecution case. It is admitted by the investigating officer that he has not collected any bill of the cartridges to show that these were purchased by the complainant. License of the gun is also not seized where the entry would have been made regarding the purchase and identification of the articles. Therefore, bare statement of the complainant that he identified his cartridges during the identification parade cannot be relied upon to establish that the stolen property was recovered from the possession of the appellants.

In such a situation, it is clear that the prosecution could not establish that any stolen property was recovered from the possession of the appellants.

Thus, neither the prosecution could establish identification of the robbers nor recovery of the stolen property from their possession could be established. Therefore, their conviction is not sustainable in the eyes of law and the same is set aside. The present appeal stands allowed.

The appellants are acquitted from the charge under section 392 read with section 120-B of the IPC.

They be set at liberty forthwith, if not required in any other case.

The order of trial Court regarding disposal of the case property is hereby confirmed.

All the IAs pending in these cases stand closed.