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Judgment
Heard through video conferencing.
Today the appeal is listed on an application (IA No.3405/2020) filed by appellant No.1 seeking suspension of sentence. The sentence of appellant
No.2 has already been suspended vide order dated 12.02.2020.
With the consent of parties instead of hearing the argument on the above application, the appeal itself is heard finally.
Appellants have filed the present appeal under section 374 of the Cr.P.C against the judgment dated 16.01.2020 passed by learned A.S.J, Indore in
S.T.No.648/2017 whereby the appellant No.1 has been convicted under section 392 IPC and sentenced to undergo RI for 5 years with fine of
Rs.2000/-; in default of payment of fine 3 months SI and the appellant No.2 has been convicted under section 411 IPC and sentenced to undergo RI
for 2 years with fine of Rs.1000/-; in default of payment additional one-month S.I.
As per the prosecution story on 07.01.2016 near about 8.10 P.M complainant was parking her Activa (MP09 SL 6983) then one person came on a
white Activa and snatched a gold chain from her neck weighing 15 gm. valued at Rs.40,000/- and fled away towards Usha Raje Parisar. She gave
this information to the police which was registered in Police Station Annapurna as Crime No.11/16 under sections 392 of the IPC against unknown
persons. After investigation, it was found that the appellant No.1 did snatch the gold chain and gave it to his wife who is appellant No.2. The police
recovered the gold chain from the possession of the house of the appellants vide seizure memo Ex.P/7 and arrested the appellant No.2 on 13.07.2017.
The appellant No.1 was already in custody in connection with some other offence, therefore, he was formally arrested on 13.07.2017. After
completing the investigation the police filed Challan against the appellants. Learned ASJ framed the charges under section 392 IPC against appellant
No.1 and under section 411 against appellant No.2. The appellants abjured the guilt and prayed for trial.
In order to prove the charges against the appellants, the prosecution examined as many as 7 witnesses. After appreciating the evidence came on
record vide judgment dated 16.01.2020 the appellants have been convicted and sentenced as mentioned hereinabove.
Learned counsel for the appellants submits that the appellant No.1 is in custody since last more than 3 years. He was in jail during the trial also. He
was also convicted under section 392 IPC and sentenced to 5 years RI with a fine of Rs.2000/- in S.T No.649/2017. Against the said judgment he
preferred a criminal appeal No.3684/19 and vide judgment dated 28.06.2019 this court has reduced the sentence from 4 years to 2 years and
maintained the fine amount. Shri Rathi further submits that learned trial Court has wrongly framed the charge under section 392 IPC against the
appellant. At the most, he has committed the offence under section 379 IPC. According to him section 392 is made out only if the offender of the theft
commits the offence voluntarily and causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or instant
hurt otherwise it is a simple case of theft punishable under section 379 IPC. In the present case, as per the version of the complainant PW/1 an
unknown person came and simply snatched the gold chain from her neck without causing any hurt, wrongful detention, or threat. Under section 379
IPC the maximum punishment is only 3 years which he has already undergone, therefore, this appeal may be finally disposed of by converting the
charge from section 392 to section 379 of the IPC. He further submits that so far as appellant No.2 is concerned, she is the wife of appellant No.1. In
her statement under section 313 of the Criminal Procedure Code she has stated that her husband runs a grocery shop and she was called as a witness
but she has been arrested in this case. Learned counsel Shri Rathi further submits that she was under impression that her husband bought the gold
chain for her. She was not aware that it is a stolen property. Under section 411 IPC no minimum sentence is prescribed, therefore, the period of 2
years sentence may kindly be reduced to the period already undergone in jail. She has no criminal antecedents.
Learned Govt. Advocate opposes the above arguments, argued in support of the judgment and prayed for dismissal of the appeal.
It is correct that in criminal appeal No.3684/2019 this Court has reduced the sentence of 4 years into 2 years by maintaining the fine amount of
Rs.2000/- for the offence punishable under section 392 of the IPC while maintaining the findings given by the learned trial court. During the same
period, the appellant No.1 was implicated in this case also and he was formally arrested.
I find substance in the ground raised by Shri Rathi that the appellant No.1 has committed the theft and not the robbery, therefore, he has wrongly been
tried under section 392 of IPC instead of section 379 IPC. PW/1 complainant lodged an FIR in the police station on 7.1.2016 narrating the incident that
while parking her Activa in the parking lot an unknown person came on a white Activa, snatched the gold chain from her neck and fled away. She has
improved the aforesaid version slightly by adding that he kept his hand on her shoulder and thereafter snatched the gold chain. Section 392 IPC is an
aggravated form of theft. In order to charge the accused under section 392, the prosecution is required to establish that while committing the theft the
offender has voluntarily caused the hurt or attempted to cause death or hurt or wrongful restraint or fear of instant death etc. In the present case,
there are no such allegations against the appellant No.1, therefore, at most the appellant No.1 is liable to be convicted under section 379 of the IPC.
Since the appellants are not challenging the findings of the theft of the gold chain, therefore, the same are not liable to be re-appreciated hence they
are hereby affirmed. Hence, the trial Court has committed a mistake in finding the appellant No.1 guilty for the offence under section 392 instead of
section 379 IPC. Hence, the appeal is partly allowed and the conviction of the appellant No.1 is altered from section 392 to section 379 IPC and while
maintaining the conviction the jail sentence is reduced from 5 years to 3 years RI with a fine of Rs.2000/-.
So far as appellant No.2 is concerned being a wife of appellant No.1 she was found in possession of the stolen article i.e. gold chain. After the theft,
the appellant No.1 has kept the said gold chain in his house which was recovered by the police vide seizure memo Ex.P/7 from the house of the
appellants. As per PW/2, the police have recovered the gold chain from the house of appellants, therefore, it cannot be said that the chain was
recovered from the possession of appellant No.2 alone. Being a wife she was residing in the house and it is not the case of the prosecution that the
appellant No.2 was wearing the chain at the time seizure but it was known to her that stolen chain has been kept by appellant No.1 in the house. In
view of the above, while maintaining the conviction, the sentence of the appellant No.2 jail sentence is reduced from 2 years to the period already
undergone. Both appellants be released after depositing the fine amount, if they are not required in any other offence.
The appeal is partly allowed. Trail court record be sent back.
C.c as per rules.