Nanka and Others vs State of M.P.

Rajendra Menon, J—These appeals are pending since 1991. Appellant Mishrilal in Cr.A. No. 122/1992 has been sentenced to undergo 7 years R.I. for offences under Section 394 read with Section 397 IPC and one year and 3 years R.I. for offence under Section 25 and Section 27 of Arms Act. Appellant Nanka and Maikulal in Cr.A. No. 1036/1991 have been convicted to undergo 4 years R.I. for offence punishable under Section 394 IPC. Both the appeals were fled against the order of conviction passed by the District Judge, Damoh in Sessions Trial No. 95/1990 on 28.10.1991.

As far as the appellant Mishrilal in Cr.A. No. 122/92 is concerned, it is seen that the maximum sentence imposed upon him is R.I. for 7 years. He is in custody and his bail application was rejected by this Court and therefore, now after a period of more than 24 years, he would have already undergone the entire sentence. As far as the merits of both the cases are concerned, the prosecution story is that on 6.6.90 P.W.1 Ladli Bai was coming back to her house from the market along with her son Bhura Singh P.W.2, when four persons came there, one of the person was carrying a Katta (a country made pistol), he snatched a silver chain from her neck and ran away and when her son Bhura tried to stop the person he freed from the Katta on Bhura but it did not hit Bhura. This person is said to be the present appellant Mishrilal who has been identified by the complainant P.W.1 Ladli Bai and her son Bhura P.W.2 before the Tahsildar and on the basis of seizure of Katta from him, he has been convicted for the offence as indicated herein above.

As far as the other two accused persons Nanka and Maikulal in Cr.A. No. 1036/1991 are concerned, they are only convicted for offence under Section 394 IPC and sentenced to undergo imprisonment of four years. They are on bail since 28.1.1992 and records indicate that they are absconding since 2000 and have not appeared since then and Shri Manish Mishra, learned counsel appearing for these appellant does not represent these appellants and pleads now no instruction. However, these appellants are on bail and the appeal is of the year 1991. It is being continuously listed for final hearing since last more than two months and when the case is taken up for hearing none is appearing, that apart both these appellants have jumped the bail and are not appearing since 2000. In view of the above, considering the principles of law laid down in the case of K.S. Panduranga Vs. State of Karnataka, (2013) 3 AD 414 : AIR 2013 SC 2164 : (2013) 116 CLT 669 : (2013) CriLJ 1665 : (2013) 3 CTC 631 : (2013) 3 JT 514 : (2013) 2 RCR(Criminal) 219 : (2013) 3 SCALE 152 : (2013) 3 SCC 721 : (2013) 1 SCC(L&S) 791 : (2013) AIRSCW 1382 and the fact that now as per the aforesaid judgment of the Supreme Court it is not obligatory on the part of this Court in all circumstances to engage an amicus curie in a criminal case to argue on behalf of the accused and when the appellants accused are on bail, this Court can proceed to examine the record and decide the matter on merit taking note of the peculiar facts and circumstances of the Cr.A. No. 1036/1991, accordingly, I proceed to decide the matter after examining the record and after hearing learned Government Advocate.

As both the appeals are arising out of a common order, they are being decided by this order.

Shri Manish Mishra, learned counsel appearing for the accused Mishrilal in Cr.A. No. 122/1992 took me through the statement of witnesses and other documents to say that the offence against this accused is not made out, no injury has been sustained by Bhura and as identification of the appellant is not properly done, it is a fit case where the appellant should be acquitted.

Having considered the submissions made by learned counsel for the parties and on going through the records, it is seen that P.W.1 Ladli Bai has testified and has supported the case of prosecution. From her statement it is clear that it is appellant Mishrilal who was carrying a Katta and it was he who snatched the silver chain from her throat because of which she sustained injury on her throat and when Mishrilal was tried to be caught by her son Bhura (P.W.2), he freed on Bhura with a Katta. Seizure of katta is evident from statement of investigating officer. All the accused namely Nanka, Maikulal and Mishrilal have been identified in a test identification parade undertaken in the presence of the Tahsildar. In para 6 of her testimony P.W.1 Ladli Bai speaks about Test Identification Parade which was held by producing about 25 to 30 persons and the report of Test Identification Parade available on record goes to show that both the complainant Ladli Bai (P.W.1) and her son Bhura (P.W.2) have identified all the three accused persons. That apart, there is evidence on record to show that the articles ''A'' namely the silver ornament and katta has been seized from the appellant Mishrilal. Taking note of the totality of the circumstances material available on record, particularly the statement of both the eye witnesses P.W.1 Ladli Bai and P.W.2 Bhura, the case of prosecution has been proved beyond reasonable doubt and conviction of the appellant in the facts and circumstances does not have any infirmity warranting interference.

That apart, as far as Cr.A. No. 122/1992 pertaining to Mishrilal is concerned, he was only sentenced for 7 years, he was not granted bail and therefore, in all probability, he would have undergone the sentence. Learned counsel for both the parties are not aware of the present position. However, taking note of totality of circumstances, I see no error in the order of conviction passed by the Courts below.

Appeals are therefore, dismissed. The bail bonds of the appellants in Cr.A. No. 1036/1991 be cancelled. They be arrested and confine to prison for undergoing the remaining part of their sentence.

Both the appeals are accordingly, dismissed.