The court upheld the conviction for wrongful restraint but reduced the sentencing for robbery due to inconsistencies in evidence and time served without a prior criminal record.

JUDGMENT :

Prem Narayan Singh, J.

This criminal appeal has been filed on behalf of the appellant under Section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment dated 25.03.2022 delivered by the learned 2nd Additional Sessions Judge, Barwaha, District-Mandleshwar, in Sessions Trial No.127/2015, wherein learned Judge has convicted the appellant for the offence under Sections 341 , 394 of the INDIAN PENAL CODE , 1860 (in short 'IPC') and sentenced to undergo 1 month S.I. and 6 years R.I. with fine of Rs.500/- and Rs.2,000/- with usual default stipulations.

2. Prosecution story in nutshell is that complainant Mukesh Rathore lodged a report at Police Station Balwada, District Khargone that on 28.12.2014 at about 7.00 pm he was going to village Ramana from Indore and when he reached Lalpura crossing, three unknown persons came in a motorcycle stopped their vehicle in front of his vehicle, assaulted him and committed loot of Micromax Mobile, cash of Rs.5000/-, motor cycle along with its documents. Thereafter complainant went to Umariya outpost, where he informed about the incident to his relative Parashuram Yadav, from where he went to Barwaha hospital for treatment. On that basis, FIR bearing Crime No. 0/2014 for the offence punishable under Sections 394 , 341 of IPC, 1860 was registered against unknown persons.

3. The police after following the due procedure, prepared the spot map, recorded the statements of the witnesses, seized the articles and arrested the accused persons and after due investigation filed the charge-sheet under Section 394 , 341 of IPC, 1860 before JMFC, Barwaha. The matter was committed to the Court of Sessions where upon co-accused persons were declared absconding and the charges were framed under Sections 394 , 341 of IPC against appellant Krishna S/o Mohan. The appellant abjured his guilt and took a plea that he has been falsely implicated and prayed for trial.

4. The prosecution on its behalf has examined as many as 9 witnesses namely Mukesh Rathore (PW-1), Parasuram (PW-2), Jitendra (PW-3), Dr. Ashish Sen (PW-4), Munna (PW-5), Paramjeet Singh (PW-6), Sanjay Sharma (PW-7), Santosh Mishra (PW-8), Rajaram (PW-9). No. witness has been adduced in defence by the appellant.

5. Learned trial Court, on appreciation of the evidence and arguments adduced by the parties, pronounced the impugned judgment on 25.03.2022, convicted and sentenced the appellant as mentioned in para-1 of this judgment. Other co-accused persons Malkhan and Lakhan were acquitted from the aforesaid offence vide order dated 08.07.2022 passed in S.T. No.100127/2015.

6. Learned counsel for the appellant submitted that appellant has already completed jail sentence of 7 and 1/2 months. Other accused persons have already been acquitted. Seizure witnesses have deposed in the Court that they have put their signatures in Police Station and no seizure was made in front of them. Police has disclosed that items have been seized from the present applicant while independent witnesses have not supported the case in this regard. Earlier complainant has stated in the FIR that Rs.5000/- was looted from him, however, in his Court statement he has changed his version and deposed that Rs.8000/- along with one gold ring was looted from him by the accused persons. No identification parade was conducted, in which the present appellant has been identified. Trial Court while acquitting the co- accused persons has clearly stated in the order that the complainant has deposed that the incident occurred in dark and he could not see the faces of the accused persons and hence the report was lodged against unknown persons. Seized articles have also been identified by the complainant. In the same incident, two different orders have been passed wherein in one accused has been convicted and two others have been acquitted. Hence the present applicant is liable to be given the benefit of doubt as he is also in the same footing as the co-accused persons.

7. Duri