State of M.P. vs Mukesh

U.C. Maheshwari, J.—The appellant - State has directed this appeal u/s 378 of Cr.P.C. being aggrieved by the judgment dated 4.4.1995 passed by the 4th Additional Sessions Judge, Sagar in S.T. No. 7/1994 acquitting the respondent from the charge of Section 392 and 392 / 397 of IPC. The facts giving rise to this appeal in short are that on 4.9.1993 at about 8 o''clock in the night the complainant-victim-Prakash Chand while riding his motor cycle was going towards the bus stand, Rahatgarh from his residence. On the way, he was anticipated with a below of stick by the respondent. Resultantly he sustained the injuries on his back and fell down with his motor cycle. Thereafter respondent by showing the knife had taken out purse from his pocket, in which according to prosecution Rs. 500/- with one diary was kept. The alleged incident was witnessed by Kamal, Mohd. Yusuf, (PW-3) Shikhar Chand and Nemichand Jain, (PW-10). Soon after the incident on lodging the FIR, (Ex.P-4) by the victim, he was sent to the hospital, where on medical examination, his MLC was prepared by Dr. Arif Khan, (PW-6). On completion of investigation, the respondent was charge sheeted for his prosecution under Sections 392 and 397 of IPC.

The case was committed to the Sessions Court where on framing the charge of Section 392 and 392/ 397 of IPC, the respondent abjured the guilt, on which the trial was held in which as many as nine witnesses were examined on behalf of the prosecution. On appreciation of such evidence, the respondent was acquitted from charge framed, on which the State has come to this Court with this appeal for setting aside the impugned judgment with a prayer to punish the respondent under the aforesaid charge.

Learned PL Shri Rakesh Keshwarwani after taking me through the record of the trial court by referring the deposition of the victim Prakash (PW-1) as well as FIR, (Ex.P-4) argued that this witness by proving the incident, as stated in the FIR also proved the test identification parade, (Ex.P-3) held with respect of his stolen purse by Makhan Singh, (PW-2), the Sarpanch of the village. According to counsel, the testimony of this witness regarding alleged robbery has been further supported by the eye witness Mohd. Yusuf, (PW-3) and also till some extent by the other alleged eye witness Nemi Chand Jain, (PW-10). So far memorandum of respondent disclosing the place of concealment of the stolen property recorded u/s 27 of the Evidence Act and its seizure memo, whereby at the instance of respondent such purse was recovered, have been proved by the Investigating Officer Shri H.P. Singh, (PW-9). He fairly conceded that the independent witnesses of such memorandum and the seizure memo namely Gowardhan and Raja Ram on recording their depositions turned hostile. In continuation, he said that in any case from the evidence available on record, it has been proved beyond reasonable doubt that the respondent after anticipating the victim Prakash with intension to snatch his purse caused him the injury on his back by the blow of stick and thereby committed the offence of robbery. In such premises, he said that in any case on re-appreciation, if the Court finds that offence of Section 397 is not made against the respondent even then he deserves for conviction for the offence of robbery, made punishable u/s 392 of IPC and prayed to convict the respondent under such Section by allowing this appeal.

On the other hand, Shri Devesh Khatri and Shri Anil Kumar Ban by justifying the impugned acquittal of the respondent argued that the approach of the trial court acquitting the respondent being based on proper appreciation of evidence does not require any interference at this stage. In continuation, it was argued that on appreciation of the evidence, if two probable views are possible then as per settled proposition, out of them the view favourable to the accused should be adopted. In such premises, only to convict the respondent, the view adopted by the trial court could not be replaced by another view, as prayed by the State''s Counsel. He further said that the story put fourth by the victim in the FIR as well as in his deposition being unnatural in the available factual matrix, the respondent could not be convicted even u/s 392 of IPC and prayed for dismissal of this appeal.

Having heard the counsel present at length, keeping in view their arguments, I have carefully gone through the record of the trial court, so also the impugned judgment.

It is undisputed fact on record that the alleged incident took place at 8 o''clock in the night on the public way and immediately thereafter at 8.30 the victim Prakash Chand lodged the named FIR, (Ex.P-4) against the respondent, in which his committed offending act has been specifically mentioned. After registration of offence, he was sent to the hospital where his MLC report was prepared by Dr. Arif Khan, (PW-6), according to which near his shoulder on scapular region the injuries were found. As per opinion, the same were caused by hard and blunt object. So the version stated by the victim in the FIR that he was anticipated by the respondent with a blow of stick on his person has been proved by corresponding injuries. Such MLC report has been proved by the said Doctor on recording his deposition.

Now the Court has to answer the question that after anticipating the victim in the aforesaid manner whether his purse was snatched away or taken away from his pocket by the respondent. The victim - Prakash (PW-1) categorically deposed that after falling down from the motor cycle his purse was taken away from his pocket by the respondent. Such testimony of victim is further supported by the alleged eye witness Mohd. Yusuf, (PW-3), who categorically stated that in his presence such purse was taken away from the pocket of the victim by the respondent. The same is also supported till some extent by Nemi Chand Jain, (PW-10), the alleged eye witness, who in his deposition said that on reaching to the spot, he saw the respondent running away alongwith a stick from the place of the incident and at the same time the victim - Prakash apprised him that said Mukesh after giving him a blow of stick had snatched the purse and run away. He further said that except the stick, he has not seen any implement in the hand of the respondent. Accordingly by the aforesaid evidence the prosecution has successfully proved the alleged incident of robbery. In such premises, the respondent is held guilty for the offence defined u/s 392 of IPC and till this extent the findings of the trial court acquitting the respondent from such charge also is set aside.

So far offence of Section 397 of IPC is concerned, on recording the FIR the allegation of showing the knife to the victim by the respondent for snatching the purse was stated in the same, but on medical examination no such injury of knife was found on the person of the victim, secondly in the course of investigation such knife was also not seized at the instance or from the possession of the respondent, thirdly as per deposition of Nemi Chand, (PW-1), he did not see the respondent on the spot with the knife. So in the lack of such material evidence, I am of the considered view that the accused like the respondent could not be convicted u/s 397 of IPC. So in such premises, I am with the agreement of the trial court that the prosecution has utterly failed to prove the alleged offence of Section 397 of IPC beyond reasonable doubt against the respondent. In such premises, the approach of the trial court acquitting the respondent from the charge of Section 397 of IPC is hereby affirmed.

In view of the aforesaid discussion, the finding of the impugned judgment till the extent of acquitting the respondent from the charge of Section 392 of IPC being perverse with the record is hereby set aside and respondent is held guilty for such offence of Section 392 of IPC.

On aforesaid appreciation of evidence the court has not found two probable contradicting views in the matter as such no probable view for acquitting the respondent from the charge of Section 392 of IPC has been found. So in such premises, the arguments of the appellant''s counsel in this regard is hereby failed.

After holding guilty to the respondent for the offence of Section 392 of IPC, I deem fit to consider the available circumstance of the case for imposition of sentence on the respondent under such Section. It is apparent fact on record that the respondent is facing the mental agony of the present matter since the year 1993 and during this period near about eighteen years he has appeared on so many occasions before the trial court as well as before this Court and as per record except the present case, the respondent did not have any criminal antecedents. In such premises, he appears to be a first offender. Besides this, it was also submitted by the respondent''s counsel that subsequent to the incident in pendency of the trial and appeal the respondent has settled in his family and he being the bread winner of his family, on sending him again to jail by imposing any higher sentence, then in comparison of the respondent, his family has to suffer a lot and in such premises, prayed to punish him with the jail sentence for which he has already suffered the judicial custody between 26.10.1993 to 4.4.1995, from the date of his arrest till passing the impugned judgment during trial by imposition of some fine amount under the discretion of the court.

Keeping in view aforesaid circumstances alongwith the entire scenario of the matter instead to send the respondent again to jail by imposition of any higher jail punishment, I deem fit to punish him with the jail sentence upto the aforesaid period, i.e. one year and five months, for which he has already undergone in the judicial custody by imposing the fine of Rs. 5000/-. Accordingly the same is ordered. In view of the aforesaid discussion, by allowing this appeal in part, the judgment of the trial court acquitting the respondent from the alleged charge of Section 392/ 397 of IPC till the extent of the offence of Section 392 of IPC is hereby set aside and the respondent is held guilty for such offence of Section 392 of IPC. Under such Section he is punished with the jail sentence suffered by him in the judicial custody between 26.10.1993 to 4.4.1995 in pendency of trial but with imposition of fine of Rs. 5000/- (Rs. Five thousand). The imposed fine is to be deposited by the respondent within three months from today. Failing in depositing the same within the stipulated period, the respondent has to suffer further one year RI. On depositing such fine amount, out of it, Rs. 2000/- be given to the victim Prakash by calling him in the trial court through summon. The bail bond of the respondent is hereby discharged. Till this extent the impugned judgment is hereby modified.