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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Rajesh v. State of M. P.
Criminal AppealsNo. 678 of 2011, 882 of 2011 and 701 of 2018 (Gwalior): against the judgment and sentence dated 2.8.2011 passed in Special Sessions Trial No. 6/2009;
Decided on 19.7.2021
(1) Criminal P.C. 1973 -- Ss. 273 and 317 -- evidence in absence of accused -- personal attendance of accused dispensed with -- evidence in presence of his pleader can be taken on condition imposed by Court. (2000) 3 SCC 745 and (2019) 20 SCC 481 followed. [Para 16]
(2) Criminal P.C. 1973 -- Ss. 273 and 317 -- evidence in absence of accused -- identification of accused -- application u/s. 317 filed by appellants -- expressed that they would not dispute question of identification -- examination of complainant in absence of appellants not violative of S. 273 -- identification of appellant in dock is reliable piece of substantive evidence as it was preceded by test identification parade. [Paras 20 & 21]
(3) Evidence Act, 1872 -- S. 27 -- recovery -- cash -- no specific mark of identification -- cannot be held that cash recovered from possession of appellants is that which was robbed from complainant. [Para 25]
(4) Evidence Act, 1872 -- S. 27 -- recovery -- motorcycle -- recovery of broken piece of number plate at instance of appellant -- motorcycle without number plate recovered in another case from appellant -- said seizure memo proved -- prosecution succeeded in establishing that motorcycle of complainant was seized from possession of appellant. [Paras 25 & 27]
(5) Evidence Act, 1872 -- S.27 -- recovery -- from open field -- broken number plate of motorcycle seized from field in which crop of mustard was standing -- clearly, number plate was not visible -- could not have been recovered unless and until person who had thrown number plate, points out exact position. [Para 32]
(6) Criminal P.C. 1973 -- S. 54A -- Evidence Act, 1872 -- S. 9 -- identification -- nothing incriminating seized from possession of appellant -- however, he was duly identified by complainant -- identification is relevant fact -- conviction affirmed. [Paras 35 to 38]
(7) Penal Code, 1860 -- S.397 -- M. P.Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 -- S. 13 -- sentence -- appellants robbed complainant at gun point -- minimum sentence for offence u/s. 397 is seven years -- sentence less than minimum sentence cannot be awarded -- appellants cannot be awarded jail sentence already undergone by them. [Para 41]
¼1½ naM çfØ;k lafgrk] 1973 & èkkjk 273 rFkk 317 & vfÒ;qDr dh vuqifLFkfr esa lk{; & vfÒ;qDr O;fDrxr mifLFkfr ls vfÒeqDr & U;k;ky; }kjk vfèkj¨fir 'krZ ij mld¢ IyhMj dh mifLFkfr esa lk{; fy;k tk ldrk gSA ¼2000½ 3 ,l lh lh 745 rFkk ¼2019½ 20 ,l lh lh 481 vuqlfjrA ¼iSjk 16½
¼2½ naM çfØ;k lafgrk] 1973 & èkkjk 273 rFkk 317 & vfÒ;qDr dh vuqifLFkfr esa lk{; & vfÒ;qDr dh 'kuk[r & vihykFkÊx.k }kjk èkkjk 317 d¢ vèkhu vkosnu çLrqr & vfÒO;Dr fd;k fd og 'kuk[r d¢ ç'u ij fookn ugha djsaxs & vihykFkÊx.k dh vuqifLFkfr esa f'kdk;rdrkZ dh ijh{kk ls èkkjk 273 dk vfrØe.k ugha & dVÄjs esa vihykFkÊ dh 'kuk[r lkjÒwr lk{; gS D;¨afd mld¢ iwoZ 'kuk[r ijsM ijh{kk gqà FkhA ¼iSjk 20 ,oa 21½
¼3½ lk{; vfèkfu;e] 1872 & èkkjk 27 & cjkenxh & uxnh & 'kuk[r dk d¨Ã fofufnZ"V fpg~u ugha & ;g vfÒfuèkkZfjr ugha fd;k tk ldrk fd vihykFkÊx.k d¢ dCts ls cjken uxnh ogha gS t¨ f'kdk;rdrkZ ls ywVh xà FkhA ¼iSjk 25½
¼4½ lk{; vfèkfu;e] 1872 & èkkjk 27 & cjkenxh & e¨Vjlkbfdy & vihykFkÊ d¢ crkus ij uacj IysV d¢ VwVs VqdM+s dh cjkenxh & ,d vU; çdj.k esa vihykFkÊ ls fcuk uacj IysV dh e¨Vjlkbfdy cjken & mDr vfÒxzg.k Kkiu lkfcr & vfÒ;¨tui{k ;g LFkkfir djus esa lQy fd f'kdk;rdrkZ dh e¨Vjlkbfdy vihykFkÊ d¢ dCts ls vfÒx`ghr dh xÃA ¼iSjk 25 ,oa 27½
¼5½ lk{; vfèkfu;e] 1872 & èkkjk 27 & cjkenxh & [kqys [ksr ls & e¨Vjlkbfdy dh VwVh uacj IysV [ksr ls vfÒx`ghr] ftlesa ljl¨a dh Qly [kM+h Fkh & Li"Vr% uacj IysV n`';eku ugha Fkh & tc rd og O;fDr ftlus uacj IysV Q¢adh Fkh] lVhd LFkku ugha crkrk rc rd cjken ugha dh tk ldrh FkhA ¼iSjk 32½
¼6½ naM çfØ;k lafgrk] 1973 & èkkjk 54d & lk{; vfèkfu;e] 1872 & èkkjk 9 & 'kuk[r & vihykFkÊ d¢ dCts ls vijkèk esa Qalkus okyk dqN Òh vfÒx`ghr ugha & rFkkfi] f'kdk;rdrkZ }kjk mldh lE;d~ 'kuk[r dh xà & 'kuk[r lqlaxr rF; gS & n¨"kflf) vfÒiq"VA ¼iSjk 35 ls 38½
¼7½ naM lafgrk] 1860 & èkkjk 397 & e/; çns'k MdSrh v©j O;igj.k çÒkfor {ks= vfèkfu;e] 1981 & èkkjk 13 & naMkns'k & vihykFkÊx.k us canwd dh u¨d ij f'kdk;rdrkZ d¨ ywVk & èkkjk 397 d¢ vèkhu vijkèk d¢ fy, U;wure naMkns'k lkr o"kZ & U;wure naMkns'k ls de naMkns'k ugha fn;k tk ldrk & vihykFkÊx.k d¨ mud¢ }kjk igys gh Ò¨xh xà vofèk dk tsy naMkns'k ugha fn;k tk ldrkA ¼iSjk 4½
JUDGMENT
1. By this common judgment, Criminal Appeal filed by Laxman @ Bhura (Cr.A. No. 882/2011) and Rahul @ Chhaviram (Cr.A.701/2018) shall also be finally disposed of.
2. With the consent of parties, the appeal is heard finally.
3. It is submitted by Shri M.S. Rana that in compliance of the order of this Court, the appellant Rajesh is present in his office. Similarly, Shri R.K. Shrivastav also submitted that appellant Laxman @ Bhura is present in his office. Appellant Rahul @ Chhaviram is in jail. Since the physical hearing is not going on, therefore, the presence of the appellants Rajesh and Laxman @ Bhura is marked without obtaining their signatures.
4. These Criminal Appeals have been filed under section 374 of Cr.P.C against the judgment and sentence dated 2.8.2011 passed in Special Sessions Trial No. 6/2009 by which appellant Rajesh and Laxman @ Bhura were convicted for offence under sections 392, 397 of IPC r/w section 13 of MPDVPK Act 1981 and sentenced to undergo rigorous imprisonment of seven years with fine of Rs. 500/- with default rigorous imprisonment of three months. Since the appellant Rahul @ Chavi Ram jumped bail during pendency of the trial, and was arrested at a later stage, therefore, by separate judgment and sentence dated 1.12.2017 in Special Sessions Trial No. 6/2009, he too has been convicted under sections 392, 397 of IPC r/w section 13 of MPDVPK Act and has been sentenced to undergo rigorous imprisonment of seven years with fine of Rs. 5,000/- with default rigorous imprisonment of three months.
5. According to the prosecution case, on 20.1.2009 at about 4:15 pm, the complainant Veerendra Singh (PW/5) was going on on his Boxer Motorcycle bearing registration No. MP 07 KA 8675 which was of black colour. When he reached Mauch Ghati, then he was waylaid by three unknown persons on the gun point and they dragged him 100 meters towards the forest area and after tying his hands and legs with his belt and laces of his shoes, his motorcycle, mobile phone of LG Company, an amount of Rs. 12,200/- and shoes were taken away and threat was also extended that in case if he raises an alarm, then he would be killed. Thereafter, the accused persons ran away towards Chinor. After 15 minutes of the incident, the complainant somehow managed to get himself free and came on the road and lodged the report in Police Station Panihar Distt. Gwalior. The spot map was prepared. The appellants were arrested in some other case and motor cycle of the complainant was seized from the appellant Rahul @ Chhaviram, accordingly, they were formally arrested. Their Statements under section 27 of the Evidence Act were recorded. The broken piece of number plate of motor cycle, one pair of shoe and some cash amount was seized in the present case. After completing the investigation, the police filed the charge-sheet for offence under sections 392, 397 of IPC r/w section 13 of MPDVPK Act, 1981.
6. The trial Court by order dated 23.6.2009 framed charges under section 392, 397 r/w section 13 of MPDVPK Act.
7. The appellants abjured their guilt and pleaded not guilty.
8. The prosecution examined Constable Sudeep Pandey (PW/1), Rati Ram Kushwaha (PW/2), Ashok Singh Bhadhoriya (PW/3) Surendra Singh (PW/4), Veerendra Singh Parihar (PW/5), Anil Shakya (PW/6), Amar Singh Sikarwar (PW/7) and R.K Pandey (PW/8), in support of its case.
9. After the closure of prosecution evidence, appellant Rahul @ Chavi Ram did not appear before the trial Court on 31.3.2011 and filed an application under section 317 of CrPC seeking exemption from personal appearance. The said application was allowed and appellant Rahul @ Chavi Ram was directed to appear positively on 11.4.2011 for the accused statement under section 313 of Cr.P.C. However, on 11.4.2011, appellant Rahul @ Chavi Ram did not appear and accordingly his bail bonds were canceled and the notices were issued to the surety and the case was adjourned for 28.4.2011 for his appearance. On 28.4.2011, not only appellant Rah
The prosecution must prove beyond a reasonable doubt that the defendant is guilty of the crime charged.
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The court emphasized that lack of essential documentation and procedural compliance invalidates the prosecution's case, leading to the acquittal of the accused who were convicted of kidnapping for ra....
Conviction requires reliable evidence; identification procedures must be substantively corroborated, and the burden of proof lies with prosecution.
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